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Armbrister amendment apparently aimed at Edwards Aquifer Authority

Wednesday, May 28, 2003 by

A bill is now close to passage that could eliminate the authority of the City of Austin—as well as other cities that have groundwater districts within their boundaries—to enforce water-quality regulations such as the SOS Ordinance. HB 2877, which gained Senate approval with a number of amendments yesterday, includes language that Austin’s lobbyists believe would prevent the city from enforcing water quality regulations by giving exclusive jurisdiction over water quality regulation to the Texas Commission on Environmental Quality.

Senator Ken Armbrister (D-Victoria) authored the amendment, which was added to the bill as it was approved by the Senate yesterday. The bill must return to the House for concurrence with the changes. If the House does not agree, the bill will go to a conference committee.

Environmentalists raised the alarm yesterday afternoon after Armbrister added the amendment to the House bill by Rep. Dennis Bonnen (R-Angleton). The amendment was designed to give TCEQ “principal and exclusive authority as to the control, regulation or abatement of nonpoint source pollution of water.”

The bill goes on to state that the section supersedes any other provision of applicable law or action taken under that law to the extent of any conflict. “Any rule or order of an applicable district or authority purporting to regulate water quality as described by the change in law made by this Act to Section 36.101, Water Code, may not be enforced regardless of whether the adoption date of the rule or order is before, on or after the effective date of this Act.”

Some have read this language to mean that TCEQ standards would supersede the city’s SOS ordinance. Armbrister was on the floor last night when In Fact Daily tried to reach him. His staff says the amendment applies solely to groundwater districts and is intended to curb efforts by the Edwards Aquifer Authority to draft water quality regulations.

John Hrncir, governmental relations officer for the City of Austin, said, “I have no doubt that that was their intent, but my reading of it is that it doesn’t limit it to the Edwards or any particular groundwater conservation district . . . My reading of it is that it would apply to any groundwater district that has the authority to limit pumping.” Since the part of Austin that lies within the Barton Springs Zone of the Edwards Aquifer is wholly within the Barton Springs Edwards Aquifer Conservation District, the measure would apparently apply to Austin.

Armbrister created the Edwards Aquifer Authority during the 1993 session. The authority encompasses an eight-county area, including all of Uvalde, Medina and Bexar counties. A 17-member board governs the EAA. While boilerplate language in the bill mentioned “water quality,” it was never intended to give the EAA authority to create water quality regulations. Its sole purpose is pumping permits.

During testimony before the Senate Natural Resource Committee three weeks ago, EAA Chair Michael Beldon told Armbrister that the board intended to draft development regulations, and as early as June. Armbrister said it was never the legislative intent of his bill to give groundwater districts authority to regulate water quality.

Armbrister’s staff says he wishes to address groundwater districts, not cities. Austin’s SOS ordinance, appealed all the way to the Texas Supreme Court, validates the city’s “legitimate right” to regulate development in the interest of water quality. The ordinance has remained in place since 1992.

Armbrister’s staff also says that the subsection referred to in Armbrister’s amendment—Section 36.101 of the Water Code—applies exclusively to groundwater districts. If the language is not clearly applied to groundwater districts only, it can be clarified when House Bill 2877 goes to conference committee, they point out.

One of the House sponsors of HB2877 is Rep. Jack Stick, whose district is in northeast Austin. Brad Rockwell of the SOS Alliance said, “If Rep. Jack Stick does not act now to oppose his own bill, he may well be known as the author of a bill that destroyed the SOS Ordinance, the keystone to protecting Barton Springs.”

Mike Blizzard, who represents Sunset Valley, said, “Our concern is that they (legislators) might say that wasn’t our intent, but it’s there now,” so it will go through with those amendments.

San Marcos River Foundation spokesman calls study a sham

The slow flow of water legislation this session—possibly compounded by opposition from top leadership—has stopped consideration of one of the hottest conservation issues this year.

Debate on environmental flow permits was expected to be one of the top water issues when the session started. At the time, the San Marcos River Foundation had applied for stewardship of the remaining one million acre-feet of water rights in the San Marcos and Guadalupe River basins, arguing that too much permitting compromised downstream ecosystems in bays and estuaries.

The issue of environmental protection, inside or outside of permits, was another wrinkle in the water resource plan set up by Senate Bill 1 and Senate Bill 2. Suddenly, having water rights wasn’t enough, protection of ecosystems by those who held those water rights moved front and center.

Dean Robbins, assistant general manager for the Texas Water Conservation Association, says the implication of environmental flow permits has tremendous impact on the state. The six environmental flow permits already submitted could have totaled up to 12 million acre-feet of water rights across the state. Such numbers could strangle an untold amount of future development, he said.

“If the commission (Texas Commission on Environmental Quality) was inclined to grant these permits, that would just be the beginning,” Robbins said. “I could easily see the potential for allocating all unallocated surface water to environmentalists, leaving nothing further for water supply purposes. It leads to huge issues in terms of how water should be managed in this state.”

The TCEQ’s rejection of the San Marcos River Foundation’s permit in March blunted the rush. By May, the issue had been shunted into an interim study committee. That interim study stands alone in Senate Bill 1374 by Sen. Ken Armbrister (D-Victoria) and was inserted by Armbrister into Rep. Dennis Bonnen’s (R-Angleton) House Bill 2877. Both bills affirm that environmental flow permits should be disallowed, and a committee set up to study the issue.

The Senate approved HB2877, including Armbrister’s amendments, yesterday. It must now return to the House for concurrence. ( See related story above.)

Diane Wassenich of the San Marcos River Foundation calls the study a “sham.” While lawmakers insist the study period will not lead to a rush on permits, Wassenich is skeptical. She expects to see a “gold rush” on all the remaining water rights in the state.

“The study bill is really a front to kill conservation water rights,” Wassenich said. “They say they’re passing a study bill that contains language to stop conservation in-stream permits, yet while the two-year study is going on they’re going to allow consumptive water rights.”

Wassenich says the San Marcos River Foundation is not just some inflexible environmentalists intent upon fighting development at all costs. The group also includes those who both fish in the river and use the water for recreation, as well as those who want to protect downstream industries such as shrimping.

“Most rivers in Texas are already overappropriated. We’ve given away more water rights than actually exist,” Wassenich said. “When the next dry spell comes, many rivers in Texas could be dry for many, many years, and it wouldn’t just be a few years. It would be many years. Those bays are the life of the Gulf of Mexico, and it would have a tremendous impact for all of us.”

Even though Speaker Tom Craddick called water rights—and specifically, providing water to areas of the state that are without water—one of the “key issues” of the session, little has been done so far except tweak some of the groundwater district legislation and correct a few technical problems with existing legislation. A lot of that was due to the loss of institutional memory provided by legislators like Sen. Buster Brown and Rep. Ron Lewis, who are no longer in the Legislature.

Rep. Robert Puente (D-San Antonio), one of the few who has significant history on the House Natural Resources Committee, says the creation of a study commission is the smartest move regarding environmental flow permits. An interim study last session on environmental flow issues did not appear to go far enough in evaluating the problem to satisfy committee members.

TCEQ argues that environmental flow issues are already taken into consideration when permits are issued, Puente said. And some large permit holders, like the Lower Colorado River Authority, say they believe environmental stewardship to be an important part of maintaining their permits. But pressures to grow and also to protect the environment continue to increase. Both are valid aims, Puente said.

“There’s really not a bad guy in here. Everybody understands that what’s good for the individual rivers is good for the bays and estuaries,” Puente said. “Everybody, however, has competing needs, and we’re also faced with the need to transfer water from water-rich areas to water-poor areas.”

Small group of area residents turn out for preview

Neighbors of the old Robert Mueller Municipal Airport met Tuesday evening to review the proposed zoning change for the northwest portion of the site. The handful of residents who gathered with representatives of Catellus and the City of Austin seemed to approve of plans to convert just over 32 acres into a new Children’s Hospital and change the zoning on the land to PUD, Planned Unit Development.

The zoning case goes before the Planning Commission tonight for review, and is scheduled to go before the City Council on June 5th. While the city originally sent out notices on a 49-acre tract, representatives for the city and the Seton Healthcare Network say the final size of the area suggested for PUD zoning will be smaller. Neighbors were primarily concerned with the zoning surrounding the PUD site, which will remain as Aviation Services (AV) until the rest of the Mueller land goes through the rezoning process in several months. Seton officials hope their 32-acre campus will also include medical offices for doctors affiliated with the hospital, with a minimal amount of retail on the site for services such as a gift shop within the hospital.

Once given approval by the City Council, development of the new Children’s Hospital would proceed in several stages. The first stage will involve development of about half of the site, leaving room for expansion onto the rest of the site over the next several years. Tentative plans call for at least one high-rise building with a maximum height of 120 feet. However, that structure would be surrounded by office and mixed-use buildings in order to comply with compatibility standards. “Most of the hospital tower that would rise up would be patient rooms,” said Greg Guernsey of the Neighborhood Planning and Zoning Department. “Hospitals are unique in that they require a synergy of all the beds in the facility to be in one building with good access,” so Seton prefers “not to spread out so much as to go vertical.” Guernsey also indicated that Catellus, Seton, and the city were in talks to avoid having one massive structure dominating the skyline in the area, instead trying to design two separate towers. Seton is also working with the Karlsberger Companies of Columbus, OH, which is an architecture firm with experience in designing children’s hospitals.

HB1204 sitting still . . . The bill giving the cities a deadline for agreeing on subdivision regulations, which included a lengthy set of unpopular amendments, was rejected for consideration on a vote of 19-9 yesterday in the Senate. Some of those amendments would give counties more rule-making authority, and another would give Lowe’s retroactive approval to build a new store near Sunset Valley. Sen. Jeff Wentworth, the sponsor, will probably try again today . . . Candidate debate tonight . . . Margot Clarke and Brewster McCracken will meet for a live discussion of the issues sponsored by the League of Women Voters and News8 Austin beginning at 7pm tonight. The format of the discussion is somewhere between a talk show and a debate, but the candidates have been encouraged to discuss the differences in their stands on issues that will be presented to them. Clarke and McCracken will also be appearing together at 8am Saturday on KVUE . . . Getting out the vote . . . A group of downtown business leaders including Kerry Tate of TateAustin, Gary Valdez of Focus Strategies and Paul Bury of Bury & Partners has sent an email announcing their intention to shuttle their employees to vote at the Travis County Courthouse Thursday afternoon. The message does not urge support for either candidate, but does encourage recipients to “exercise one of our greatest privileges as Americans” . . . Special meeting for Round Rock . . . The City Council of Round Rock will hold a special called meeting at 5:30pm today to consider how to rank those who have asked to be considered for Construction Manager-At-Risk for construction at the Old Settlers Park at Palm Valley . . . Third Street Corridor workshop announced . . . The Old West Austin Neighborhood Association and West End Austin Alliance are holding a discussion of plans for the Third Street Corridor from 9am to 1pm on Saturday, June 14. Those at the gathering will talk about solving problems such as the tension between east-west mobility constraints between MoPac and downtown Austin and creating retail, residential and commercial space. The workshop will be at the historic TIPS Iron and Steel Building, 300 Baylor Street (at Third Street behind Castle Hill Restaurant). To RSVP or for more information, contact Mark Stine at 472-4113 or . . . Meetings scarce . . . This is a pretty dead week around City Hall. The Zoning and Platting Commission did not meet last night and the Council is off until next week. The Planning Commission will meet tonight . . . Transit workshop tonight . . . Capital Metro and Texas Citizen Fund are holding a series of workshops designed to let neighborhoods designate immediate improvements for getting to and from the transit system—including new sidewalks, bike lanes, bus stops and other facilities. The workshops include a walking tour of the neighborhoods to identify issues and opportunities. The second of five workshops is tonight at 5:30pm at the Parque Zaragoza Recreation Center, 2608 Gonzalez. For more information, see

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