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Garza questions penalties in water reuse rules

Thursday, December 10, 2020 by Jo Clifton

City Council is poised to adopt two ordinances at today’s meeting establishing regulations for on-site water reuse systems as well as water cooling towers. Council has unanimously supported the ideas behind the Water Forward plan that are aimed at reducing the use of city-supplied potable water and increasing the use of rainwater, stormwater and graywater. Like many other city regulations, these would include a provision for prosecution of violations as class C misdemeanors.

At Tuesday’s work session, Mayor Pro Tem Delia Garza questioned the need to include the class C misdemeanor provisions.

A class C misdemeanor carries with it no possibility of jail time, but anyone convicted of such an offense is subject to a fine. The Austin Municipal Court and its prosecutors and judges handle class C misdemeanors committed within the city of Austin.

Garza was recently elected Travis County attorney, so she will be vacating her Council office at the end of the month. In her new job, she will oversee an office that is responsible for prosecuting class A and B misdemeanors, representing the county in civil litigation and advising the Travis County Commissioners Court on legal issues.

As part of her platform, Garza advocated for criminal justice reform, specifically opposing the use of cash bail in the majority of cases. She has expressed particular concern about the disparate impact of the criminal justice system on people of color.

On Tuesday, Garza said the new ordinances did not need to include criminal penalties. She said, “I may make an amendment to strike the criminal part of the new ordinance … if (the Law Department) could provide a draft where those parts are struck, I’d certainly appreciate it.” She went on to say that there were several municipal ordinances that do not need to include criminal consequences.

However, she got pushback on that from Council members Ann Kitchen, Leslie Pool and Alison Alter, each of whom stressed the importance of using every available tool to combat environmental wrongdoing.

Kitchen, an attorney, said, “I know in environmental issues generally we have needed criminal penalties to enforce environmental protection. That has been very important in our community for environmental justice.” She went on to say that criminal penalties might be needed when a company exhibits a pattern or practice of bad behavior.

When Pool asked who was most likely to be a defendant in such a case, attorney Ross Crow said those most likely to be prosecuted are “larger offenders.” The ordinances only apply to commercial and industrial customers of the utility.

Large companies “have greater access to lawyers themselves and only having a civil penalty … is insufficient,” Pool said.

Alter told her colleagues she thought these particular ordinances, where the developer has voluntarily adopted an on-site water reuse system, were qualitatively different from other types of ordinances. The consequences of violating environmental regulations, she said, “could impact hundreds of thousands of people.” She said she agreed with Kitchen about the need to keep the criminal penalties.

Mayor Steve Adler said he thought Council should look at the question of criminal penalties more globally. He would prefer to send the overall question to Council’s Public Safety Committee.

Garza said, “I agree this is coming kind of late in the game, and I am open to that approach as well.” Realizing that it might be too late to change the ordinance before it is considered Thursday, she said she might simply abstain.

Photo made available through a Creative Commons license.

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