Monday, October 26, 2020 by Jo Clifton

Utility puts off settling lawsuit amid uproar

After hearing complaints from environmentalists and residents of Hamilton Pool Road at their meeting Thursday, the board of directors of the West Travis County Public Utility Agency decided to postpone a formal settlement of a lawsuit filed against the board of the utility by the developer Provence and two property owners. News of the proposed settlement was first reported in The Austin Independent.

The proposed settlement would have allowed Provence to build a high-density, 1,600-home subdivision on Hamilton Pool Road within the Barton Creek watershed and would have eliminated the utility’s 20 percent impervious cover limits. Neighbors have already accused Provence of illegally exceeding that limit in violation of an agreement between the utility and the Texas Commission on Environmental Quality.

Among those urging the utility not to rush into the settlement was Craig Smith, who serves on the board of the Barton Springs/Edwards Aquifer Conservation District.

Smith reminded the board of the agreement between the Lower Colorado River Authority and the U.S. Fish and Wildlife Service, which, among other things, limited impervious cover. LCRA built the water line that serves Hamilton Pool Road, and the utility district took over the line.

Smith said, “I am one of those who is old enough to have been there when the LCRA built that water line and I remember that (former general manager) Mark Rose in a public meeting promised that the development … spawned by the water line would not be allowed to harm the aquifer, particularly the Barton Springs section of the Edwards Aquifer. … I’m asking the board not to renege on Mark Rose’s promise. … The (utility agency) inherited its infrastructure and also, as I would see it, its obligations. I’m just urging the board to follow the terms of the (memorandum of understanding) that the LCRA made with the Fish and Wildlife Service.”

According to a press release from the group Hamilton Pool Road Matters, the utility made a preliminary agreement at a special called meeting on Oct. 5 to settle the lawsuits. Perhaps more importantly, the utility “also voted to change the (utility’s) policy manual to eliminate the requirement of 20 percent impervious cover limits.”

J.J. Priour, a longtime resident of Hamilton Pool Road, told board members that he and his neighbors “have been completely forsaken.” Referring to the fact that the city of Bee Cave has taken over the majority of seats on the utility agency’s board, Priour said residents have no say in what the utility does, even though its activities have a tremendous impact on their lives by clogging the roads and damaging the environment.

Hamilton Pool Road Matters continued in its press release, “Eliminating protective measures will weaken our environmental protections, grossly impact traffic, and endanger our night skies. Decades of environmental protection work should not be eliminated behind secret closed-door meetings and without input from stakeholders.”

The Austin Monitor requested copies of the lawsuits from Jennifer Riechers, the utility’s interim district manager, but she declined to provide them, “because litigation is still pending.” She did not respond to a request for comment.

The Monitor learned that the 3rd Court of Appeals had reversed a trial court’s dismissal of the original property owners’ Chapter 245 vested rights claims, but said the plaintiffs could not sue the district. They could, however, sue individual board members, and that’s what they did. The Texas Supreme Court declined to review the case on Aug. 28.

Chapter 245 provides for the grandfathering of development rights based on when the property owner filed for a permit to build. In essence, the Hatchetts – the original property owners – claimed their development rights were set before the various agreements limiting impervious cover to 20 percent.

Photo by Vicki Mitchell from Austin, US, CC BY 2.0, via Wikimedia Commons.

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Key Players & Topics In This Article

Lower Colorado River Authority: The quasi-governmental organization charged with, among other key items, regulating water policy for the Lower Colorado River--the body of water that runs through the heart of Austin. The creation of the organization in 1934--and the eventual series of dams it built--helped send electricity to portions of the Texas Hill Country.

Texas Commission on Environmental Quality: environmental regulating authority for the State of Texas.

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