Three Kyle Council members say

City may contest overpumping fine

Remarks could reflect change of position for city

By Bob Ochoa

Three members of the Kyle City Council said this week the city might contest a $129,124 fine imposed on the city last week by the board of directors of the Barton Springs Edwards Aquifer Conservation District (BSEACD).

The board voted unanimously last week to impose the fine—the result of Kyle’s overpumping its permit by an estimated 89 million gallons –from a well inside the Barton Springs district. Kyle lies just outside the district. “We’ve never had anybody be so flagrant to almost triple their permit in terms of overpumpage,” said BSEACD President Jim Camp, reacting to news of the city’s possible decision to contest the fine. “Their (Kyle’s) city manager said that they were willing to accept all the blame and pay the fine. (To contest it) would be a conflict of what they have said before.”

Kyle has not moved officially to contest what is thought to be the largest fine ever imposed by the BSEACD on a permit violator, but Council members Troy Bearden, Cris Martinez and Mike Moore all told In Fact Daily that a consensus appears to be forming to either try to negotiate a lower fine or to fight it.

“We have to, that’s too much of a fine to pay. Why should we pay for all the other people (over)pumping from the aquifer? We’re experiencing all this growth and that should have been considered,” said Martinez.

“If we’re, say, one percent of total pumpage out of the aquifer then why are we being made an example of? What are the other users pumping, and have they overpumped?” asked Bearden.

Bearden said the city has until Oct. 24, the date of the next BSEACD board meeting, to attempt to negotiate a reduced figure. The board is expected to approve an enforcement order imposing the fine on that date. “I think we can possibly do some work before hiring attorneys to hopefully try to persuade them to reconsider their finding,” Bearden said.

Moore questioned the motive behind such a stiff penalty. “I just want to make sure if they have done it by the books, they’ve done it to others. I don’t want it just to be a political issue that they’re trying to scold the small one when they have bigger people they won’t touch.”

Kyle’s overpumpage was discovered suddenly in late July when it had reached nearly double the city’s annual permitted level of 55 million gallons. City officials have explained the overpumpage was caused by failures in internal communications, a temporary shut down of two of the city’s other wells in the southern Edwards Aquifer, which is not part of the BSEACD, and explosive population growth.

“We certainly have had folks who have overpumped, but never a case where somebody was in danger of overpumping and informed of that and just simply didn’t do anything,” said BSEACD board member Jack Goodman. Goodman is the longest-serving member of the board. He represents aquifer users in southern Travis County.

“They (Kyle officials) came in and pleaded a mid-level management screw up. I don’t know what you want to call it,” Goodman said. “In the past when somebody has been in danger of overpumping they’ve come in to request an increase in their permit. That’s the unprecedented part of this case, not to mention they are not even inside the district.”

The district currently serves 77 permittees. Kyle is the only large permitted user that is outside the district. According to BSEACD staff, Kyle’s overpumpage of 89 million gallons was by far the largest in the latest reporting time frame. The next largest was 19 million gallons, followed by one of slightly over 1 million gallons.

Goodman said talk of political motivation in setting Kyle’s fine is nonsense. And if the City of Kyle wants to fight the fine in court, get ready, he says. “My constituents were angered about the city’s overpumping. People in the district—like J. L. Howze (the general manager of the Goforth Water Supply Corp.), a pretty conservative gentleman—were outraged.

“They obviously violated our rules and it is prescribed in our rules what the remedy is. And it’s my personal opinion that if they tried to contest it they would, in all likelihood, lose. It’s a shame if we end up in court because it will cost everybody money and I don’t think their chances are very good.”

In recent meetings between Kyle officials and board members, both sides have emphasized maintaining neighborly relations. Goodman has said repeatedly the board initiated the good neighbor policy by agreeing four years ago to allow the City of Kyle to draw water from inside the aquifer district until the city could acquire additional sources of water.

Despite the overpumpage, the district recently renewed Kyle’s permit to draw 55 million gallons from the aquifer for another year and has offered technical assistance to help the city improve its water program. Kyle has recently acquired a new surface water supply through a deal with the City of San Marcos and the Guadalupe-Blanco River Authority. But city officials say it may not be sufficient to meet a steadily increasing demand.

Board president Camp and Goodman both said that talk of challenging the fine would not bode well for future relations. “We have been trying to be good neighbors,” Goodman said, “and we get repaid with 100-plus percent overpumpage without even an attempt to amend their permit. Their (proposed) remedy involved them keeping the fine and fixing their own water system rather than applying the fine to fixing the real problem which is replacing the water they’ve taken.”

“I’m sorry they feel we’re making an example of them, but they are the ones that didn’t live up to the conditions of their permit,” said Camp. “People on the street ask me all the time what’s going on with Kyle and I say they apparently haven’t been able to plan and manage their growth. I’m trying to be nice about it.”

Few contested items on this week's light agenda

The City Council approved most agenda items on consent in a short session Thursday, with special attention given to a resolution laying out Austin’s conditions for a Regional Mobility Authority (See In Fact Daily, Oct. 3, 2002). That resolution, which was put through minor modifications on the dais to address concerns of different Council members, passed unanimously.

“The fact of the matter is that pursuant to the legislation, Travis and Williamson Counties proceeded to form Texas’ first RMA without consulting with the city that would be most affected by their decisions,” Garcia said. “We intend to work with our neighbors to bring about needed mobility infrastructure that is required to keep our city economically vibrant. But we want to be part of the decision-making process.” The state legislation authorizing the RMAs specifically mentions counties, but makes no provisions for municipalities to have direct representation in the management of the authority. Officials with Williamson and Travis Counties are pressing ahead, in part, so that their application to form an RMA will be one of the first, thereby increasing their chance of receiving a portion of the $10 million the state has set aside to assist RMAs.

Council Member Daryl Slusher joined with the Mayor in urging changes to the rules for the RMA. “We have a much-improved relationship with the representatives of Williamson County, especially on transportation,” Slusher said. “But I think the region has to include a strong voice for the biggest city, which is the economic and cultural driving force of the entire region.” Slusher added that the proposed toll roads of US 183A and SH 45 S East were both needed, but wanted to ensure the city’s authority over future roads that might not be as desirable. The latter would connect I-35 with SH-130.

Mayor Garcia says the city will be working with members of the central Texas legislative designation during the next session to bring about changes to the RMA enabling legislation. “Under the current situation, the city has no power at all,” Garcia said. “And there’s a lot of uncertainties. The bill that created the RMAs left out many things. It’s going back to the legislature next year to clear up some of the issues. We would like for the cities to be given a way to participate. These roads are coming through the cities, and we think we should have some say in how those RMAs are operating.”

The Council also approved a measure to limit the amount allowed for fee waivers each year, as well as a public education program to remind people of how to safely dispose of hypodermic needles used in home health care. People frequently put the needles inside plastic bottles, which then wind up in recycling containers. The plastic bottles are frequently crushed during the sorting process, leaving the needles exposed. “We’ve had two employees who have been stuck by needles as the material comes across the conveyor line,” said Waste Management Project Manager Richard Mikhail. Neither of the employees contracted any diseases, but they were required to undergo expensive testing. An ordinance to give more authority to animal control officers also won approval as part of the consent agenda.

Nofzinger urges board to fund clean buses instead

Opposition to light rail on South Congress has not disappeared entirely, as the Capital Metro board was reminded with the appearance of Max Nofziger at this week’s meeting. A former City Council member and opponent of light rail, Nofziger explained that he was representing the merchants and homeowners of Save South Congress. He presented the Capital Metro board with alternatives he labeled, “a clean air alternative to light rail.” Nofziger’s argument was that a seven-year 20-mile construction project through the heart of Austin would require heavy equipment and add significant pollution to the already dirty air.

“We’re very concerned about the impact of light rail down South Congress,” Nofziger said. “We came up with an alternative plan.”

Nofziger’s Save South Congress plan would cost $265 million to add additional bus turn-outs, replace the bus fleet with alternative-fuel buses, van pools and rebates for hybrid cars and electric bikes. The city would provide a $5,000 rebate on hybrid car purchases, a $500 rebate on electric bicycles and $2,000 apiece to replace 1,000 old, smoking automobiles.

Light rail would be part of the plan, but only along the Union Pacific railroad line, at a cost of $5 million. According to the South Congress plan, trains should run on existing tracks, or at least down dedicated right-of-way. It makes much more sense than trains running down the middle of two lanes of busy traffic, Nofziger wrote in the Save South Congress plan.

The biggest portion of the plan’s price tag—$100 million—would be to replace Capital Metro’s first 400-bus fleet with a bus fleet that uses alternative fuels. The federal government would pay 80 percent of the cost, according to the plan. Local taxpayers would pay about $6 million a year. The agency agreed this week to purchase six retrofitted hybrid-electric buses for $960,000.

At $265 million, Nofziger said, it would be equivalent to 10 percent of the total cost of light rail. It also would be immediate, adjustable and flexible to changing circumstances. Nofziger said the plan would remove cars from the road and provide cleaner air in a year. This plan, Nofziger said, would be “quicker, cheaper, quieter and cleaner, without destroying businesses and neighborhoods.”

The South Congress plan would buy 10 clean, quiet buses, run them every 10 to 15 minutes and be free to users. That would cost $10 million and take only one year to implement, Nofziger wrote. Other recommendations include the addition of express bus lines from remote parking areas and the expansion and advertising of service for local van pools.

The cost of light rail from Congress Avenue Bridge to Ben White would be $200 million, Nofziger estimated. That doesn’t even include the cost of trying to get rail across Town Lake, either over or under the water.

Thursday

, Friday.

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

EPA, SOSA and salamander return to court . . . After a two-hour hearing yesterday on requests for summary judgment, Federal Judge Sam Sparks told attorneys for the federal government, the Save Our Springs Alliance and the Texas Capital Area Homebuilders Association that they could have one week to send him a letter with additional arguments. The arguments center on the question of whether the governmental agencies—the Environmental Protection Agency and the Fish & Wildlife Service—acted in a manner that was arbitrary and capricious when they reversed course on whether the Barton Springs salamander is endangered by continued use of the Construction General Permit in the Barton Springs zone. Sparks told the lawyers that he will move quickly to make a decision after receiving their final comments on the matter . . . Council appointments . . . As part of a very light agenda, the City Council appointed Becky Morris to the Environmental Board and reappointed Bruce Willenzik and Mel Ziegler to the Arts Commission. Chair Andrea Bryant’s term has expired and the Council is looking for another appointee. The terms of the remaining members of the commission will not expire until 2003 or 2004. Dick Kallerman was reappointed to the Impact Fee Advisory Committee and Dan Leary was reappointed as the Historic Landmark Commission’s representative to the Downtown Commission . . . Lights on after school rally Saturday . . . The Travis County After School Network is sponsoring a run and rally to publicize the need for after school care for children, beginning at 9:30am tomorrow at the State Capitol. Congressman Lloyd Doggett will address the crowd at 10:30am. For more information, visit http://www.tcantx.org or call Anna Land at 502-0681 . . . Anti-war rally tomorrow . . . Those interested in expressing their disagreement with plans for a war against Iraq will gather at 2pm Saturday at Republic Square Park, 4th and Guadalupe. The group plans to march to the Federal Building at 2:30 for a 3pm rally. For more information, visit http://www.austinagainstwar.org . . . Local political forum Monday . . . Candidates for offices from Congress to County Commissioner Pct. 3 will speak at the Westbank Candidate Forum from 7-9pm Monday at the 9th Grade Center, Westlake High School. Those expected to attend include US Rep. Lamar Smith and opponent John Courage; Senator Gonzalo Barrientos and Ben Bentzin; for State Representative, District 48: Todd Baxter and Rep. Ann Kitchen; Travis County Commissioner, Precinct 3: Commissioner Margaret Moore and Gerald Daugherty. Sponsors include the Westlake Picayune, Rollingwood Neighborhood Association, Westlake Chamber of Commerce, Westlake High School, the city of Rollingwood and the city of Westlake Hills . . . New deadline . . . Anyone wanting to sign up for Citizens Communications before the City Council will need to get to the City Clerk's office a little earlier from now on. The sign-up deadline had been 12 noon on the Friday before the Council meeting, but the Council approved a measure to push the deadline up to 9:30am. “This was brought up to streamline the agenda process so that we can get the information to people prior to 6 or 7 o'clock at night on Friday,” said City Clerk Shirley Brown, noting that staffers and Council members would prefer the option of taking the material home with them over the weekend for review. However, that would require sending the package to the printer before the noon sign-up deadline. “What we've found is when there's a lot of interest in speaking, people are signed up a week in advance,” Brown added. Council members defended the move after criticism from frequent Council speaker Jennifer Gale. “I’m asking that you keep those two and a half hours in the hands of the people of Austin,” Gale said. The motion to move the sign-up deadline passed unanimously. Agenda packets should now be available to staff and Council before the close of business on Fridays.

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