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Aquifer district grants Cypress permit for test wells

Friday, January 30, 2004 by

Test wells no guarantee of pumpage approval

After hearing from an attorney for the Save Our Springs Alliance (SOSA) and an engineer for developer Cypress-Hays, L.P., the board of the Barton Springs Edwards Aquifer Conservation District (BSEACD) made short work of approving test wells for the property, which is planned for residential development. SOSA had filed a protest and request for public hearing on the matter. The application approved last night grants Cypress-Hays authorization only to drill the test wells, not to pump water that might cause a draw-down on neighboring wells in North Central Hays County.

If the water is of sufficient quality and quantity, Cypress will come back to the district to request a permit for 20 million gallons of water per year, according to the application for the test wells. Engineer Bryan Jordan of Jones & Carter represented Cypress. He said the water would be used to serve about 150 homes.

Those test wells are a prerequisite to an application to pump from the aquifer in an area that has already experienced poor quality and diminishing quantities of water. It was those problems that prompted the Lower Colorado River Authority (LCRA) to initiate the Hwy. 290 water line which environmentalists fear will spur more development over the recharge zone of the aquifer. Cypress entered into a contract with the LCRA last March for the river agency to provide water for up to 1,250 LUEs (living unit equivalents).

Andrew Backus, a director of the Hays-Trinity Groundwater District, which is adjacent to the Edwards, told the board he was worried about future water supply, but did not ask them to reject the application. “I certainly have neighbors who are concerned about being the shallow end of a bath-tub.” He said there is “concern that the people in the Goldenwood neighborhood would be the first to be impacted,” by additional groundwater withdrawals in the area.

LCRA attorney Madison Jechow told In Fact Daily yesterday afternoon that the contract allows the developer to use water from another source—such as the aquifer—on an interim basis. But he points out that another provision of the contract requires Cypress to use the water it has reserved from the LCRA line before using any other source on a long-term basis. The problem for Cypress, apparently, is monetary. The contract with the LCRA requires those who want the water to pay for the line from the delivery point on US290 to their property.

“If Cypress came to us for an interim limited amount, it would be okay,” Jechow said. “Our position would be okay—but you need to build the line.” The LCRA was limited in the number of units it could serve by a lawsuit filed by environmental organizations, including SOSA. In the settlement of that lawsuit, the agency agreed to get guidance on how many units the line could serve in new developments, such those planned by Cypress. When LCRA made its agreement with Cypress for service to the Rock Creek development, Jechow said, they were told that the US Fish & Wildlife (FWS) would allow Cypress to use groundwater for 150 LUEs. But FWS has now agreed to allow 1500 LUEs to use groundwater from Edwards Aquifer wells. FWS has authority over water quality protection measures under the Endangered Species Act.

The contract, Jechow noted, allows Cypress to use part of the water reserved for Rock Creek at another development, if it is adjacent to Rock Creek and Cypress or “a controlled affiliate” has an economic interest in the development. He said FWS has also agreed to a transfer of some part of the 1,250 LUEs Cypress reserved to an affiliate that plans to develop Hays 967. One of the questions Board Member Craig Smith and SOSA’s Oberlin asked during last night’s hearing related to the transfer. However, Jordan said, “Hays 967 doesn’t have anything to do with the application at all.” He said the application was for Rock Creek only.

Asked if he was concerned that Cypress might be planning to substitute ground water for the surface water they had contracted for, Jechow said the LCRA expects Cypress to live up to its agreement, which requires use of water from the US290 line before the developer can turn to groundwater.

BSEACD hydrogeologist Brian Smith told the board that “very little is known,” about groundwater in the area where Cypress wants to drill its test wells. “There’s not a lot of hydrogeologic data. We’ll all learn a lot about groundwater availability,” from the study, he said. “If they moved any further west there would be no actual saturation from the Edwards Aquifer.” He said he could not predict whether they would find aquifer water or not. “From the point of view of sustainable yield, that is an area that we consider more vulnerable in drought conditions,” he said.

Board Member Smith made the motion to approve the drilling permit, which was approved unanimously. Developers may drill on or after Feb. 13, or, if there is a request for rehearing, when that matter is settled. Although they granted the test well application, several directors noted that the action did not mean they would grant a pumpage request.

Nokonah changes win first round approval

Most neighbors agree office use better than empty space

Opponents of a zoning change for the Nokonah brought the city’s Smart Growth program back into the spotlight Thursday night as they attempted to convince the City Council to deny the request from the building’s current owners. Nokonah Partners Limited, which purchased the property from developers Robert Barnstone and Perry Lorenz, wants to convert the vacant retail space on the first floor of the condominium tower into a real estate office. But the Council was not swayed by residents of the Old West Austin Neighborhood Association (OWANA) and approved the change on first reading. Nokonah is at 9th and Lamar.

Finding a retail tenant for the space, said attorney Michael Whellan, had proven to be impossible in the current market. “As most of you know, the ground-floor space at Nokonah has remained empty and dark,” he said, “notwithstanding the fact that the building is 85-percent occupied and that for the last two years they have tried to fill that space.” With an office tenant ready to occupy the space, Whellan asked the Council to give the property owners some flexibility. Representatives of the Old Austin Neighborhood Association, the Downtown Austin Neighborhood Association, the West End Austin Alliance and the Downtown Commission all supported that request.

“I think the thing that’s most important here is the nature of the construction that’s going to be tearing up Lamar for two years and making this even more likely to be an empty black hole,” said Melissa Gonzales of the West End Austin Alliance. “Our neighborhood’s concern is that we have a live streetscape here. We could have a potential black hole there for a really long time.”

But other neighborhood groups accused the original developers and the new property owners of going back on agreements made to secure crucial neighborhood support for the project. Laura Morrison of OWANA told the Council her group would be opposed to office instead of retail on the first floor, and argued that office was not allowed under the Smart Growth program which had allowed the developers to receive $375,000 in waived fees. “Seventy-five of the points were earned for, and I quote, ‘support of adjacent neighborhoods.’ It appears that no partial points are possible . . . It’s not most neighborhoods they need support from, it’s all.”

Putting her neighborhood group on record as opposed, Morrison said, should revoke those points. She also said 10 points had been awarded for designing the building to accommodate street-level pedestrian uses, and office space should not qualify. “While a mention of office is made in the Smart Growth Matrix as a street-level pedestrian use, if you actually go to the packet that defines uses it says specifically . . . offices must have a significant amount of daily traffic other than employees. A real estate office is not going to have a significant amount of daily traffic other than employees.” She concluded that the new score under the old matrix would be below the threshold that allowed for any fee waivers.

“In these days of serious budget cuts and challenges to the city’s finances, $375,000 is a significant amount of money to rest in place inappropriately,” Morrison said. “I as a taxpayer would ask that you reject the request or alternatively ask to recoup that $375,000.” There was also opposition from some nearby business owners, who predicted that retail would be viable at the location if the property owners lowered their requested rent or made changes in the aesthetics of the building.

Whellan countered the argument over Smart Growth points with documents from staff in the city’s Neighborhood Planning and Zoning Department. He produced a letter from Principal Planner George Adams, which stated, “It appears that the proposed use would comply with the definition of street-level pedestrian uses. More importantly, the ground floor of the building is designed in such a way as to readily accommodate pedestrian/retail-oriented uses in the future . . . thereby achieving the City’s goals with regard to the—now discontinued—Smart Growth Matrix Program.” Whellan noted that it would be in the best interests of Nokonah Partners, Ltd. to convert the space back to retail use whenever possible, since that generally commanded higher rental rates than office space

Council Member Betty Dunkerley moved to support the zoning change for the first floor, allowing retail space instead of office. “I know how much unrented, unused retail space there is in Austin. So I was concerned that if we didn’t allow, at least on a short-term basis, some office use . . . that you really would be stuck with a lot of empty space for a long time,” she said.

Council Member Daryl Slusher provided the second, and the Council voted 5-0 in favor of the change on first reading only. Council Member Danny Thomas was in San Diego for Capital Metro and Council Member Brewster McCracken was off the dais.

Police Association to respond . . . Expect some angry police officers, including APA President Mike Sheffield, to tell the media exactly what they think of recent stories in the Austin American-Statesman accusing Austin police of brutality and racism. Police will hold a press conference at 1pm today on the steps of the CLEAT (Combined Law Enforcement Association of Texas) Building, 400 W. 14th Street . . . Traffic à la Spaghetti Western . . . Transportation, Planning and Sustainability Director Austan Librach outlined the strengths and weaknesses of the city’s traffic light synchronization system Thursday in a presentation entitled, “The Good, the Bad, and the Ugly.” He borrowed theme music from the famous spaghetti western to open his remarks. Librach told the Council that the city did, in fact, have a system for coordinating traffic lights and that system was working as designed. About 90 percent of the major streets citywide have synchronized lights, while the rate downtown is closer to 30 percent because of the complexity of the traffic grid. But Librach cautioned that synchronization is not a “silver bullet” to cure traffic congestion. “If you wanted to have an average to good level of traffic movement on all the streets and intersections in the Austin region today, you would need to return to the volume of traffic we experienced in the late 70’s and early 80’s,” he said. “But our population has doubled in that time.” That’s part of the reason that many intersections simply fail during rush hour, leaving drivers stuck in traffic . . . Farewell to Olivares . . . Outgoing Parks and Recreation Department Director Jesus Olivares was presented with a Distinguished Service Award at Thursday’s Council meeting. Olivares will become the City Manager for his hometown of Eagle Pass next week. “In his years here in Austin he has really served as the right-hand guy for many city managers,” said Toby Futrell. “He’s a man who has done a tremendous job with our parks system. He’s going to leave this city with a parks system that was named the best in the state of Texas.” Olivares praised the park systems volunteers, the board and commission members and the city employees. “It’s certainly been twelve great years,” he said. “It’s been an honor to be able to work with such talented employees. I think that’s what makes Austin the city that everyone would like to be like” . . . Council appointments. . . The following persons were reappointed by consensus to their respective advisory commissions and boards by the City Council yesterday: Andrew Clements (Urban Transportation Comm. Rep.) to the Downtown Commission; Otilia Sánchez to the Commission on Immigrant Affairs; Cathy French and Bruce Shelton to the Sign Review Board; and Joel Stone to the MBE/WBE Advisory Committee. The Council granted a waiver of residence requirements for Stone, with Council Member Daryl Slusher dissenting. Slusher has consistently opposed such waivers. Council Member Danny Thomas appointed Andrew Donoho to the Resource Management Commission and Council Member Raul Alvarez reappointed Ben Ornelas to the Library Commission . . . Grass roots politics at home . . . Mayor Pro Tem Jackie Goodman will be hosting a coffee on Sunday, Feb.8, to introduce Stephen Yelenosky to a few friends. Yelenosky faces Richard Anton in the March 9 Democratic Primary for the nomination to the 345th District Court bench. Goodman described both Yelenosky, Goodman’s appointee to the Ethics Review Commission, and Anton, a longtime member of the Democratic Party, as “good guy Democrats.” The winner of the primary will face Judge Patrick Keel, who was appointed to serve out the unexpired term of Scott McCown, who resigned to join the Center for Public Policy.

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