The multiple lawsuits related to the Provence Development off Hamilton Pool Road, in the Barton Springs Zone, are posted for potential settlement this Thursday, December 17 — on the West Travis County Public Utility Agency (WTCPUA) agenda. Those include state and federal lawsuits by the landowners John and Sandra Hatchett and by Provence developer Masonwood Development.
It appears that a partial victory by the Hatchetts at the Texas Court of Appeals, Third District, is driving the WTCPUA Board’s consideration of a settlement. At the core of the dispute is whether the WTCPUA will provide service for around 700 living unit equivalents as the WTCPUA has agreed to do or around 1,800 as the plaintiffs seek. As reported in earlier articles, the WTCPUA Board has already dropped a long standing 20% impervious cover limit for development in the Hamilton Pool area.
As the Texas Court of Appeals, Third District explains in their ruling, “The Hatchetts’ petition sought declarations invalidating the PUA’s ‘policies, rules, and regulations’ limiting density and impervious coverage on their property and granting them vested-rights protection under Chapter 245 of the Local Government Code (LGC) due to a prior permit application for water service.” Chapter 245 is also known as the state grandfathering law which, in lay person’s terms, freezes in place the development regulations — including water quality regulations — that were in place at the time of the original development permit application. In other words developers can build under older, less stringent regulations no matter what governing bodies or science have determined in the meantime.
The issue before the Texas Court of Appeals was whether the Hatchetts had standing to sue on Chapter 245. The lower court ruled that they did not. The Court of Appeals reversed that decision. So now the Hatchetts can proceed with their Chapter 245 claim. To repeat, however, no decision was made on the overall case. The Court of Appeals instead wrote, “We reverse the trial court’s dismissal of the Hatchetts’ Chapter 245 vested-rights claim and remand that cause for further proceedings consistent with this opinion.”
It appears to be this decision that has the WTCPUA staff and board considering settlement of the Hatchett lawsuit and others related to the development. I use the word “appears” because the PUA is not responding to inquiries from the Independent and although the lawsuits are posted for potential settlements there is no draft posted for the public to review. Plaintiff John Hatchett also declined to discuss ongoing litigation.
It is not uncommon for parties to a lawsuit to refuse to publicly discuss the ongoing litigation. In cases of this magnitude, with intense public interest, many consider it a sound principle of good governance to post potential settlements for public review and comment before voting on whether to approve them.
Also related to the legal disputes, and the overall situation with the WTCPUA and Bee Cave City Council, is a point raised by Bee Cave Council Member Jon Cobb when I interviewed him for a previous article. Cobb maintains that water utilities in Texas “should not regulate land use.” Based on experience from a few different angles, Texas law does generally prohibit utilities from having land use requirements in exchange for providing service. There are additional, complicating factors, however, in this situation. Those include that the federal Fish and Wildlife Service was involved in the agreement for the Lower Colorado River Authority (LCRA) to build the original pipeline. LCRA promised strong water quality protections to the entire community. As the successor to the LCRA, WTCPUA could be legally bound to carry out the restrictions.
Given the LCRA promises, the complicated nature of the situation and the environmentally critical importance of the water quality protections — it seems that the WTCPUA would fight to defend the protections in court rather than just abandon them. That’s at the core of what a lot of people are asking the WTCPUA to do. At the absolute very least, the Board could take a lot more public input and engage in more open discussion than they have so far.
Now, let’s discuss why this dispute draws interest well beyond the area around the development. That is because the Provence Development is along Little Barton Creek in the environmentally fragile area which contributes to Barton Creek and Barton Springs.
That works like this. Runoff water from the area eventually flows into Barton Creek and then along the beloved Barton Creek Greenbelt where generations of central Texans have enjoyed swimming and hiking. Along the way the water passes over the Barton Springs Segment of the Edwards Aquifer Recharge Zone. Some of the water, at times all of it, seeps through fissures in the limestone down into the recharge zone. Water from five other creeks also contributes to Barton Springs through the recharge zone as well. So any pollution in Bee Cave or the Hamilton Pool Road area can end up in Barton Springs.
Feedback from Bee Cave
Given that neither side is talking about the lawsuits or the pending settlement, there’s not much new to report. Consequently, I want to take the opportunity to discuss some feedback I got from a few folks in Bee Cave on my last story regarding this issue. This is done in the spirit of seeking common ground or at least seeking a better understanding of each other — especially in these very divided times. Hopefully, this can also help bring more clarity to the issue overall.
First, after my last story one person from Bee Cave wrote that I had “bought into a conspiracy theory regarding what is going on at the PUA” and did so using “anonymous sources.”
This refers to a section of the story which began, “Opponents of expanding the water line tend to see Goodwin’s ouster as part of a larger effort to abandon Bee Cave’s efforts to limit Provence and other developments along the waterline to 20% impervious cover.” Goodwin is former Bee Cave Council Member Bill Goodwin. Goodwin resigned from the Council last April, amidst controversy over whether he had violated the City Charter by directing staff while he was serving as Acting Mayor. He also resigned from his Council appointed position on the WTCPUA board. His name remained on the ballot for the May election, however, and he was elected to another term. After he took office again he was removed from the Council by a vote of the Council. Goodwin subsequently filed a lawsuit seeking reinstatement. That suit is pending. Goodwin was a strong backer of the impervious cover limits and other environmental protections.
I worded the story the way I did because I believed that I was conveying a widespread feeling among those opposed to settling the lawsuit. I tried to make clear that I do not know all the details and particulars in the Goodwin saga and I reaffirm that here. The details I did provide came largely from earlier media reports. If I had tried to cover the entire Goodwin story in my article I would have not been able to get it done before the Board meeting I was writing about, and it would have been way too long — even for one of my stories.
I do want to make one addition to what I wrote about the Goodwin chronology in that article. When I said Goodwin won election again a little over a month after he resigned I should have noted that he was the only candidate who filed to run, and that he resigned after the filing deadline for new candidates. I did not realize that at the time.
Regardless of that, and regardless of whether the Bee Cave Council’s recent actions in regard to the WTCPUA are tied to Goodwin’s ouster, those actions still look pretty devastating from an environmental standpoint. Let’s review. The Bee Cave Council appointed two new members to the WTCPUA Board, including the Bee Cave City Manager. Since their arrival the Board has dropped a long standing 20% impervious cover requirement for development in the Hamilton Pool area. And, the Board is considering settlement of a lawsuit that could end up with more than double the number of units the Board originally agreed to serve. That could in turn lead to expansion of the Hamilton Pool Road water line which could in turn lead to even more development in the environmentally fragile area, which contributes to Barton Creek and Barton Springs.
So maybe that whole series of events doesn’t have anything to do with Goodwin’s ouster, but whatever the driver, it does not look good from a water quality or good governance standpoint. Also, it looks like a situation that deserves way more scrutiny to figure out exactly what is going on.
Public Officials and Lawsuit Settlements
This brings us to some other feedback I received. That was that as a former public official I should understand that the WTCPUA Board might have entirely different reasons — other than weakening environmental protections or caving in to developers — for wanting to settle the lawsuit. I consider this a fair point. If, however, the settlement indeed weakens environmental protections for a natural treasure such as Barton Springs then it seems to me like that should be a huge part of any consideration of a settlement.
On the person’s broader point, I certainly have been involved in settling controversial lawsuit settlements, as an Austin City Council Member. Among the most controversial were ones over development issues in the Barton Springs Zone. During those times, I was on the receiving end of angry attacks from environmentalists. I cannot speak to that sort of thing in Bee Cave because I have not experienced it from the people involved in this situation. When Jon Cobb complained, however, of environmentalists during our conversation, I had an understanding of what he meant.
Like in the lawsuits against the WTCPUA, the state grandfathering law was a core issue in the lawsuit settlements to which I refer. The issue was often how much impervious cover developers could build under state laws as opposed to under City regulations, especially the SOS Ordinance.
There are several big distinctions between the way the WTCPUA is handling the current lawsuit and the way the Austin Councils on which I served handled ours. Saying that, I realize that using Austin as an example is not necessarily the best way to connect with people in outlying areas. Since my public service was invoked by someone writing from Bee Cave, however, I am going to go ahead and give it a shot.
Probably the most controversial environmental settlement in which I was engaged was the Stratus Agreement. I voted for it and was heavily involved in negotiating it. So for the sake of space I will concentrate on it here. The developers/property owners maintained that under state grandfathering laws they could build up to four times as much impervious cover as allowed under the SOS Ordinance, 15% in the recharge zone. Ultimately they agreed to build at SOS impervious cover levels overall, but we allowed them to cluster around 30% on some tracts while leaving other tracts permanently undeveloped.
Looking at those numbers now makes me think: dang, we did pretty good. At this point though I want to say that getting the developers down to that level was not solely a function of my negotiating skill, or that of anyone else at the City. Beau Armstrong, the head of Stratus Properties — and successor to the notorious Jim Bob Moffett — decided that he wanted to comply with community values and protect the creek and springs. So we negotiated a deal which worked for Stratus financially and for the City environmentally.
That is entirely different than the WTCPUA simply deciding to give up on the impervious cover requirements — something they have already done even before settling the lawsuits. In fact, from an environmental/aquifer protection standpoint it is the total opposite of what we did in the Stratus deal.
Another difference is that on the Stratus deal, and any other environmental settlement of that magnitude, we would always post the proposed agreement for the public to review. That would take place well before a vote. We would still have Executive Sessions on the matter; although at one point on the Stratus deal we stopped having Executive Sessions completely on the topic, to avoid the perception of backroom deliberations.
In the WTCPUA’s case, no settlement agreement has been posted as of Wednesday afternoon. Nor has a proposed agreement been posted on the two earlier recent occasions when the agenda featured items to approve a settlement. Perhaps on the earlier occasions no backup/draft agreement was posted because the Board and the plaintiffs/developers were unable to come to a final agreement. If that is the case, it begs the question, why post the agenda item if the parties have not reached a settlement? Perhaps it is some sort of strategy by the board in a back and forth with the developers. It is, however, a policy that at best is designed to draw public suspicion and at worst to try to speed through a deal before the public has adequate time to examine it.
I think the agreements I worked on actually got better as a result of them going out for public review. I know that Jon Cobb and others think there are some environmental and neighborhood folks who will never agree to a deal. I do not know whether that is the case in the Bee Cave area, but I do know that it was the case on the Stratus agreement and other settlements in Austin.
That just sort of comes with the territory. On the other hand no one is going to be persuaded to support a settlement they are not even allowed to see.
How Will History Judge Us?
In closing I want to reemphasize why I, or anyone from Austin, have a stake in this issue. The answer is Barton Springs and Barton Creek. Th creek and springs do not belong just to the people of Austin though. Yes, Austin has done the most to save them, through ordinances and by purchasing land to protect water quality and endangered species (including in the Bee Cave area).
The creek and springs belong to everyone who wants to go there. People have been enjoying swimming in Barton Creek and Barton Springs ever since people lived in this area — way before the first people of European descent arrived. Later, generation after generation of Austinites swam at the springs and hiked upstream to do the same in Barton Creek. This is documented in a new film by Karen Kocher and Monica Flores called Origins of a Green Identity, Austin’s Conservation Pioneers. (It will premiere December 29 at 8:30 PM on KLRU and re-broadcast January 8 at 8 PM. It will also be available for streaming on PBS after the premiere.)
The core of the Kocher and Flores film is how modern efforts to protect the springs from the impact of development date back to at least the 1950s. They chronicle how generations of Austinites and central Texans labored to win protections for the creek and springs and to convince the City to buy land for recreation and to protect water quality and water quantity. These were the origins of the Barton Creek Greenbelt and the beginnings of water quality protections.
That history helps emphasize what a great tragedy it would be if the springs and creek become too polluted for swimming on our watch — during the time of all of us living in the Austin area today. It is that love of the creek and springs, and the feeling of responsibility to pass them along to future generations, that explains why so many people are deeply concerned about what is happening with the WTCPUA and the Provence Development.
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