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By Keith Sennikoff

Monday, November 25, 2002 by

Floyd Marsh, general manager of the Barton Springs/Edwards Aquifer Conservation District (BSEACD), is new in town. Originally from Nebraska, he attended the University of Nebraska in Lincoln. He served in the US Army Corps of Engineers and afterwards worked in California and overseas before returning to Nebraska as general manager of a multi-county watershed subdivision. In 1978 he went to grad school at the University of Arizona in Tucson. After receiving his Masters in Water Resources Administration and Hydrogeology, he moved to nearby Scottsdale to become that city’s water resources director. The final four of his fourteen years there were spent as water resources advisor, responsible for long-term resources master planning, groundwater supply assessment and negotiating external regional water policy.

As BSEACD general manager he exercises overall management responsibilities as well as accountability to the board of directors. Marsh oversees district policy, programs and direction, in addition to staff and technical management. But as a hydrogeologist, he is also a scientist.

Marsh was thus attracted to work with the BSEACD for the change in technical challenges, in particular to work with groundwater in a Karst environment, that is, fractured limestone bedrock. The majority of his prior experience in Arizona and Nebraska had been in sand and gravel alluvial fill-type environments. “So I saw some professional intrigue in that.” Once he expressed his interest in the position he was strongly recruited by the BSEACD board.

When asked to describe the ways in which the Texas groundwater picture is similar to Arizona, Marsh noted need, growth and demand pressures on a finite water supply. The differences, he said, are in approach, progress and status of the respective water development and management programs. In response to a perceived crisis in 1980, Marsh recalls, Arizona approved a groundwater management act that has been quite effective in articulating and addressing that state’s groundwater management issues.

Marsh says that it’s difficult as a newcomer to Texas to size up the situation and stay objective. But he says, “I think Texas does have some catching up to do in that arena. And through Senate Bill 1, and the more recent Senate Bill 2, they’ve made some fairly significant steps towards a more effective groundwater management planning scenario . . . But there are some very fundamental issues out there, (such as) property rights, that have to be factored in and balanced into the equation.”

The two states’ basic legal framework for groundwater law differ significantly. “In Texas, it’s considered more of an absolute property right, whereas in Arizona it’s more of a public resource, and the public then, through the public agencies, has the responsibility of managing it. There’s that stark a difference between the two in terms of groundwater legal systems. Arizona has addressed theirs in the past, and I think Texas is still addressing groundwater as a resource—how should it be managed? As a privately owned resource or a public resource? And what should be the management mechanism? Who should do the managing? Should it strictly be at the local level or at the state level, or should it be some combination of the two working in concert? So there are still political issues that need to be overcome. How that sorts out is then strictly in the political arena.”

In Arizona, “there’s a state groundwater management policy and there’s more localized, more regionalized policy where groundwater declines and issues and so on have been so severe that they’ve established what they call active management areas where there’s active management of groundwater areas through a state, regional and local system where the state has the overarching responsibility and authority. It’s kind of co-management with state oversight. So there’s still local control and local management prerogatives and latitude in terms of conservation and water supply planning . . . but the state authority establishes some of the guidelines and rules and so on that the regional and local agencies then have to adapt to, develop plans and supplies for and meet certain water conservation requirements. How they do it still leaves a lot of flexibility in approach.

“As far as I’m able to determine that is really not characteristic of the groundwater legal framework in Texas. It’s hands-off from the state perspective, and even the law says that. We want to defer to the local control principle as much as possible. I think the awareness and sensitivity to that is evolving in Texas. There needs to be more of a regional approach . . . as long as it’s set up and applied in a practical way where you’re not arbitrarily or unnecessarily dividing some jurisdictional boundaries you could just as well include . . . even though the aquifer boundary is not consistent (with those boundaries).”

“I know there’s a lot of debate out there about how we should draw those final groundwater management area boundaries. If they’re drawn properly and practically, that type of thing will work. It’s more to facilitate coordination of planning and management tools and still retain the local control flavor—that’s what it’s really all about. So there’s going to be some teeth-gnashing as we go. On the other hand, I think that is really a step in a very positive and correct direction from the standpoint of management policy. It’s what Arizona has done in its active management areas. They’ve set up larger, in some cases multi-county, management areas where the groundwater problem is critical enough and has some commonality to it that they have a mechanism where they can get more coordinated management.” And this is being contemplated here in Texas. “But the authority and regulatory structure will be different because it’s predicated on the local control principle.”

Whenever Marsh finds the opportunities, he enjoys sharing his experience and management ideas with others. He realizes, however, that ideas sometimes just need to be planted and that time and evolving situations will allow others to foster them and bring them to fruition. “You can’t force ideas on other people and other entities . . . if the idea seems to work in their minds, so much the better . . . You’ve got to be humble about it.”

Nebraska, in his experience, “is kind of an in-between case, where they have both the local and regional control, and where they can set up groundwater control areas. But it’s with fairly direct state oversight; (however), once the regulations are set up it’s strictly a local enforcement kind of thing. So the local or regional entity petitions the state department of water resources to establish a groundwater control area and once it’s established they have the responsibility for developing, promulgating, holding public hearings and getting public input into the rules and regulations that would be applied in that groundwater control area.” Marsh believes that the various models used in both Arizona and Nebraska could be valid here in Texas despite some major differences in geology.

Who has the effective enforcement authority is thus the crux of any groundwater control model. And Texas lies fairly far to the local end of the continuum, yet is moving—albeit not hurrying—toward the other side. Marsh is in a rare, rather informed position as someone who has years of practical experience at different points on that continuum.

Marsh didn’t realize until after he got here the degree to which Texas groundwater districts are decentralized. This situation is the result of several different processes that form them: legislative and administrative layers and the TCEQ (Texas Commission on Environmental Quality, formerly TNRCC). And “they’re proliferating as we speak.” But there is now a new state effort to consolidate jurisdiction in sixteen groundwater management areas for more effective coordination and facilitation, “one that follows more natural aquifer boundaries.”

So far, the aspect of his new job that Marsh most enjoys is the professional relationships he’s been building. He’s also looking forward to working more deeply with “a very fine scientifically-based assessment program staff,” which he can keenly appreciate because of his technical background.

Marsh has also been pleasantly surprised by how amenable life is in Austin. He lives in Austin with wife Jean and “two marvelous, very motivated, focused children,” Teri and Thomas. He spends much of his free time doing outdoor activities with his family

When asked if he’s confident of his ability to be influential over the evolution of groundwater management in Central Texas, Marsh laughed. “Yes, of course!” he said . . . “but I’m not going to do it single-handedly.”

Commission postpones zoning recommendation for St. David's

After hearing proposals for a 72,000 square-foot expansion of St. David’s Hospital, the Planning Commission voted last Wednesday to postpone until December 11 a decision on a zoning change that would allow the removal of a grouping of giant, protected oak trees.

Attorney Veronica Rivera, with Minter Joseph & Thornhill, said her client, Columbia St. David’s Healthcare, is requesting approval of a zoning change from GO to CS, but not with a conditional overlay (CO) as city staff is recommending. “Proposing a CO prohibits us from expanding the building,” she said. “If you approve the CO, you’re pretty much telling us not to design it the way it is now,” she told the commission.

The expansion was proposed to meet increasing demand for emergency and surgical services, she said. “It’s to meet the current demands of the Austin community.” Doctors have testified to the need for these new facilities, she noted, and they said a failure to expand would compromise patient care, along with emergency and surgical services.

Rivera said St. David’s takes the overflow from Brackenridge Hospital and Brackenridge cannot expand further, so it’s up to St. David’s to grow to meet the needs of the community. For these reasons, she said, she was asking the Commission not to go with the staff recommendation. The CO recommended by staff is designed to protect trees, which is important, she said, but it’s also important to protect hospital patients and provide adequate medical services.

If the staff recommendation is approved and a required buffer goes into place for construction of the expansion, “you’re actually cutting back operating rooms by putting in the buffer,” she said.

City Arborist Jim Rhoades said there are 15 protected trees at issue, and staff has been trying to find a compromise to save some of them. “Trees can be required to be preserved, not just replaced. Sometimes an applicant tends to forget that,” he said.

“The zoning change would make it virtually impossible to save any of the protected trees,” he said, adding that he and other staff members are trying to save at least a few of them.

Chair Lydia Ortiz asked if any of the trees were good candidates for transplanting. Rhoades told her no, but a small percentage might survive a move.

Rivera said if the trees were not removed the proposed expansion would not be feasible because the cost of a different design would be too high—not to mention the interruption of emergency services if that section of the hospital had to be moved elsewhere to accommodate expansion.

Commissioner Maggie Armstrong made a motion to postpone. She said she was reluctant to let go of the trees, but noted that St. David’s had always done a good job in the past with landscaping and tree preservation. She suggested the applicant come up with another solution.

Commissioner Chris Riley said he supported the postponement. “I’m hopeful that before December 11 there will be some real constructive, creative progress” by the applicant on a new proposal. He said St. David’s is known in the community for its past efforts to save trees, and he didn’t think it had tried hard enough this time to find a good solution.

Rivera said her client had worked very hard to come up with the current proposal. Commissioner Cynthia Medlin wasn’t convinced. “The fact that the architect didn’t meet with the arborist, that troubles me,” she said.

The vote was 8-0 with Commissioner Dave Sullivan absent.

© 2002 In Fact News, Inc. All rights reserved.

Fellow travelers at last . . . at last week’s Council meeting, the engineering firm PBS&J won approval for a $928,000 amendment to contract for design of the Barton Creek Lift Station Force Main. The item was on the consent agenda, and attorney Richard Suttle had signed up in favor of the item. His card, noted Mayor Gus Garcia, said “he’s happy to be on the same side of the South Austin Outfall issue as Brigid.” The Mayor added, “I expect that’s Brigid Shea. OK. I’m just reading what he wrote on the card, so—don’t shoot the messenger.” Suttle said later that he was surprised his comment had been read. He explained that he had lobbied for the South Austin Outfall, which has been downsized and renamed in the last nine years. Shea’s first vote on the City Council, he said, was against the outfall, which would have allowed the Terrace PUD—as well as other projects in the Barton Springs watershed—to hook up to the city sewer line. The Terrace solved its problems without the outfall and Shea is now a lobbyist in favor of the lift station. Shea said, “The project is 180 degrees different from when I voted against it because the city has downsized the pipe. There was a consensus process and they agreed to a limit on the service boundary.” At the point she voted against it, Shea said, “staff had planned an unlimited pipeline to the Barton Springs watershed” . . . Council approves zoning for Harmon Tract . . . The Council voted 4-2 last week to give final approval for MF-4-CO (moderately high density multi-family) zoning for the Harmon Tract at 3226 West Slaughter Lane. Council Members Daryl Slusher and Raul Alvarez voted against the change from I-RR (interim rural residential). Mayor Pro Tem Jackie Goodman, who voted against the zoning on second reading, was at a housing retreat. Slusher said there are too many apartments in this area and the traffic is too heavy. “I really think that RR or other single-family zoning would work,” he said, “even though it complies with the SOS ordinance.” Mayor Gus Garcia noted that the Council had recently heard a presentation on urban sprawl which showed the rate of development on previously raw land is 2.5 times the population growth. However, the developer had reached agreement with neighbors on setbacks and city staff had recommended the zoning . . . SBCA honoring someone tonight . . . The Save Barton Creek Association (SBCA) is holding its annual meeting at the Splash Exhibit of Barton Springs Pool in Zilker Park to celebrate the Springs and SBCA’s 23 years of community service. Longtime community activist and one of the founders of SBCA, Shudde Fath, will receive a lifetime achievement award. Festivities will run from 6-9pm . . . Judge rules in favor of EPA, Homebuilders . . . Judge Sam Sparks has rejected Save Our Springs Alliance claims that the US Fish & Wildlife Service and the Environmental Protection Agency acted arbitrarily and capriciously in their decision to continue use of the construction general permit. In Fact Daily will have more on this matter in future editions . . . Fixing the political sign problem . . . Travis County State Rep. Terry Keel, who had to file suit against the city of Bee Cave to get two of his campaign signs reinstated on private property, has pre-filed a bill that would override municipal ordinances that restrict such signage. HB 212 would prohibit cities from requiring permits, approval or fees on signs on private property that contain “primarily a political message.” That would knock out a lot of the Bee Cave ordinance and the portion of Austin’s sign ordinance that prohibits signs within 10 feet of the right-of-way. The Austin ordinance survived a recent court challenge from the Travis County Republican Party (see In Fact Daily, Nov. 13, 2002) but the judge suggested that changes were in order. Keel’s bill would not apply to billboards or other signs “generally available for rent or purchase.”

© 2002 In Fact News, Inc. All rights reserved.

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