The Austin Chronicle

https://www.austinchronicle.com/news/1996-08-09/532379/

Off the Desk:

August 9, 1996, News

The Edwards Aquifer Authority (EAA) wouldn't declare a drought emergency for the Southern end of the aquifer last week, despite pressure from a federal judge to come up with an immediate conservation plan to keep the aquifer from continuing to decline. The EAA vote on July 31 was close -- seven members to six -- but "the prevailing feeling was that there was no crisis," says spokesperson Jeanne Jaynes. The aquifer is low, Comal Springs is going dry, and San Marcos Springs is in danger as well; residents, industries, and endangered species that rely on the aquifer and the springs may well go without, or die, if the drought continues. The Sierra Club originally filed a lawsuit in U.S. District Judge Lucius Bunton's court to ask for restrictions on aquifer pumping. Bunton asked the region's users, i.e., the members of the EAA, to come up with a conservation plan by August 1. Now, since no agreement was reached, Bunton has appointed two independent environmental consultants to come up with a plan -- it will likely include strict restrictions on pumping, something San Antonio, in particular, opposes. Three of the seven EAA members who voted against the drought emergency are from the San Antonio area. As the largest user, San Antonio has the largest stake in the aquifer and has vigorously opposed any restrictions. Well, what do you expect from a city with a fake river? -- L.C.B.

The drought is wreaking havoc not only on the livelihoods of many South Texans, but on their recreation as well. The Guadalupe-Blanco River Authority issued a warning last week that conditions are ripe for disease-causing bacteria from human and animal fecal waste and other amoebas that thrive in warm, fresh water. Experts advise holding your nose or wearing nose plugs when jumping or diving into South Texas rivers, streams, and lakes...

So what's with this mandatory meeting set for all the city department heads this Friday? Jittery employees must be wondering if it has anything to do with the private talks held earlier this week between the city's top personnel heads and the city manager... -- A.D.

Recycle This

Remember when recycling made us feel good inside? Maybe The New York Times writer who said it's a big waste of effort was onto something. Look at the headache recycling is giving the city of Austin, Browning Ferris Industries (BFI) and residents who live near BFI's recycling center at 4712 Bolm Road in East Austin.

A fire of undetermined origin last month caused about $500,000 worth of damage to the plant and placed nearby residents in fear of their modest wooden homes going up in smoke. The blaze underscored what neighbors have complained about for years -- that an industrial-sized recycling center doesn't belong in a residential neighborhood. Health and safety matters aside, residents also complain of noise, traffic and paper that invariably ends up littering their yards.

Of course, the neighbors can point to a history of lax city zoning laws in East Austin to account for their anger. So it was with these past zoning wrongs in mind that Councilmembers Gus Garcia and Daryl Slusher sponsored a resolution directing the city manager to assist BFI in relocating to a less-populated area of the city. Still, there's nothing like biting the hand that feeds you. BFI pays the city about $700,000 a year for all the paper, cardboard, glass, plastic, and cans collected in the curbside recycling program. Plus, BFI has the only full-scale material recovery facility (MRF) in Austin that's capable of handling the city's recycling. BFI's contract with the city expires in December. The company has the option to renew and, at this point, it looks like the city has no other choice but to draw up another contract with the company.

This awkward impasse between the city and BFI probably has Willie Rhodes, the city's solid waste director, a little nervous about the future of his recycling program. "They're the only major MRF in town," he said of BFI. "So I don't think the city would want to do anything that would jeopardize the city's recycling program."

Also, BFI's relocation could put a dozen or so workers out of a job. About 20% of the plant's 72 employees live within a half-mile radius of the plant, and most of them walk to work.

Exactly how the city plans to "assist" BFI in finding a new location is unclear. Lynda Rife, BFI's Texas manager of external affairs, said scouting around for a new home isn't so cut and dried. The plant requires a location alongside a freight rail line -- in order to ship paper to Mexico and pop bottles to North Carolina -- with plenty of space for buildings, and suitable turn-around capacity for trucks. In the meantime, Rife said, BFI is doing some serious soul-searching of its own. She concedes that the company hasn't been the best corporate neighbor in the world. "We haven't been pro-active," she said. "We don't, for example, have a neighborhood advisory committee, but we intend to start one."

Susana Almanza, director of the locally based People in Defense of Earth and Her Resources (PODER), acknowledges that recycling has its proper place in the world. "Recycling is a good thing, but it's not fair that the company has been allowed to grow from a small newspaper recycling center 10 years ago into a full-blown industrial site." -- A.S.

Wait And Hear

The noise complaints issued around the Barton Springs area may be getting all of the attention right now, but if the buzz of Sixth Street merchant's "wait-and-see" attitude could be registered on a sound meter, it might just read off the scale. According to an Austin police memorandum addressed to downtown merchants, Austin's Municipal Court has changed the filing procedures for noise ordinance violations citywide, requiring that complaints be filed under state law instead of under the city ordinance. As a result, says Austin Police Department Lieutenant Harold Piatt, nights clubs and merchants will be in violation when a complainant convinces the courts that a noise is "unreasonable" -- thereby making the local ordinance's custom of a mandatory decibel reading virtually obsolete.

Already, merchants say they're worried about the apparently vague nature of the new law. "If [the law] is going to make it harder [to issue citations], that's great," says Steamboat's Danny Crooks. "But the way we [clubowners] first read it, is that an officer can walk by and consider the noise `unreasonable' without having to back it up."

However, Piatt says he is not anticipating that the new law will constitute a "substantial change." In fact, the change could put a heavier burden on the complainant to make his or her case that noise emanating from a club is too loud. "Under the city ordinance, anything over a reading of 85 decibels past 10pm constituted a violation," says Piatt. "Now, a complainant must go before and prove to a judge or jury that the noise was unreasonable. First though, the complainant has to call [the police], and we've directed our officers to first issue warnings upon such complaints. That way, citations will only be issued on subsequent violations on the same business night."

Another change in enforcement that ought to rankle downtown residents who say they are perpetually bombarded by loud music is that officers will discontinue their regular practice of "sweeping" the streets with decibel meters, and instead wait on citizen complaints. Even then, says Piatt, the noise must also be deemed "unreasonable" by the officer issuing a citation. "Just because there's a complaint doesn't mean we're going to take enforcement action," Piatt says. "It's like a speeding incident; just because you tell an officer you saw someone speeding doesn't mean we can issue a citation unless an officer saw it themselves. Therefore, the officer acting on the complaint is also going to have to witness, after the warning, an unreasonable noise in his presence."

City attorney Gail Posey backs up Piatt's contention that, despite the new filing requirements and elimination of the decibel reading mandate, nothing's actually changed. Posey -- who admits requesting the official change in filing procedure -- explains that for the past two years, officers have been re-filing citations issued under the city ordinance and prosecuting under the state's Disorderly Conduct Law for reasons of uniformity and appropriate legal principle. The recent move just makes it official. "This way... there'll be fewer clerical errors and less cases that have to be dismissed or re-filed -- which isn't to say the city ordinance is bad law or that decibel readings can't be used and considered. But what we're offering is a broader question for a judge or jury to consider." -- A.L.

Sue No Weevil

Tommy Funk was a believer. Now he's a plaintiff. In January, South Texas farmers voted by a margin of almost 3 to 1 to get rid of the boll weevil eradication effort in the lower Rio Grande Valley. The farmers -- who lost an estimated $140 million when their fields were invaded by the beet armyworm -- blamed the insect problem on the eradication effort. But Funk, one of the largest cotton growers and ginners in the region, voted to keep the program. He believed it would help the cotton industry over the long term.

Now, seven months later, Funk has changed his mind. And he has joined dozens of other farmers in suing the Texas Boll Weevil Eradication Foundation, the agency in charge of spraying malathion on more than a million acres of Texas cotton fields. Funk's suit, filed on July 18 in Cameron County, is the latest of three lawsuits filed against TBWEF, alleging that the assessment TBWEF has been levying on cotton farmers is unconstitutional.

On July 19, a state district court judge in Hale County agreed with the plaintiffs that the assessment scheme is unconstitutional, and issued a final ruling in the case known as Eddie Lewellen et al. v TBWEF. The agency quickly filed an appeal with the Texas Supreme Court.

Other legal battles are looming. The Texas Department of Agriculture is pursuing 829 cases against cotton growers who did not pay their 1995 assessments to TBWEF. Growers in several zones owe TBWEF a total of $544,093 from last year, and TBWEF has filed dozens of lawsuits for non-payment.

Funk is not happy that he has been forced to sue TBWEF. "I'm disappointed that a program that had so much potential and was so successful in other areas was mismanaged and has resulted in just the worst situation in the cotton industry in the Valley that I've ever seen," he said. -- R.B.

Copyright © 2019 Austin Chronicle Corporation. All rights reserved.

The Austin Chronicle

https://www.austinchronicle.com/news/1996-08-09/532379/

Off the Desk:

August 9, 1996, News

The Edwards Aquifer Authority (EAA) wouldn't declare a drought emergency for the Southern end of the aquifer last week, despite pressure from a federal judge to come up with an immediate conservation plan to keep the aquifer from continuing to decline. The EAA vote on July 31 was close -- seven members to six -- but "the prevailing feeling was that there was no crisis," says spokesperson Jeanne Jaynes. The aquifer is low, Comal Springs is going dry, and San Marcos Springs is in danger as well; residents, industries, and endangered species that rely on the aquifer and the springs may well go without, or die, if the drought continues. The Sierra Club originally filed a lawsuit in U.S. District Judge Lucius Bunton's court to ask for restrictions on aquifer pumping. Bunton asked the region's users, i.e., the members of the EAA, to come up with a conservation plan by August 1. Now, since no agreement was reached, Bunton has appointed two independent environmental consultants to come up with a plan -- it will likely include strict restrictions on pumping, something San Antonio, in particular, opposes. Three of the seven EAA members who voted against the drought emergency are from the San Antonio area. As the largest user, San Antonio has the largest stake in the aquifer and has vigorously opposed any restrictions. Well, what do you expect from a city with a fake river? -- L.C.B.

The drought is wreaking havoc not only on the livelihoods of many South Texans, but on their recreation as well. The Guadalupe-Blanco River Authority issued a warning last week that conditions are ripe for disease-causing bacteria from human and animal fecal waste and other amoebas that thrive in warm, fresh water. Experts advise holding your nose or wearing nose plugs when jumping or diving into South Texas rivers, streams, and lakes...

So what's with this mandatory meeting set for all the city department heads this Friday? Jittery employees must be wondering if it has anything to do with the private talks held earlier this week between the city's top personnel heads and the city manager... -- A.D.

Recycle This

Remember when recycling made us feel good inside? Maybe The New York Times writer who said it's a big waste of effort was onto something. Look at the headache recycling is giving the city of Austin, Browning Ferris Industries (BFI) and residents who live near BFI's recycling center at 4712 Bolm Road in East Austin.

A fire of undetermined origin last month caused about $500,000 worth of damage to the plant and placed nearby residents in fear of their modest wooden homes going up in smoke. The blaze underscored what neighbors have complained about for years -- that an industrial-sized recycling center doesn't belong in a residential neighborhood. Health and safety matters aside, residents also complain of noise, traffic and paper that invariably ends up littering their yards.

Of course, the neighbors can point to a history of lax city zoning laws in East Austin to account for their anger. So it was with these past zoning wrongs in mind that Councilmembers Gus Garcia and Daryl Slusher sponsored a resolution directing the city manager to assist BFI in relocating to a less-populated area of the city. Still, there's nothing like biting the hand that feeds you. BFI pays the city about $700,000 a year for all the paper, cardboard, glass, plastic, and cans collected in the curbside recycling program. Plus, BFI has the only full-scale material recovery facility (MRF) in Austin that's capable of handling the city's recycling. BFI's contract with the city expires in December. The company has the option to renew and, at this point, it looks like the city has no other choice but to draw up another contract with the company.

This awkward impasse between the city and BFI probably has Willie Rhodes, the city's solid waste director, a little nervous about the future of his recycling program. "They're the only major MRF in town," he said of BFI. "So I don't think the city would want to do anything that would jeopardize the city's recycling program."

Also, BFI's relocation could put a dozen or so workers out of a job. About 20% of the plant's 72 employees live within a half-mile radius of the plant, and most of them walk to work.

Exactly how the city plans to "assist" BFI in finding a new location is unclear. Lynda Rife, BFI's Texas manager of external affairs, said scouting around for a new home isn't so cut and dried. The plant requires a location alongside a freight rail line -- in order to ship paper to Mexico and pop bottles to North Carolina -- with plenty of space for buildings, and suitable turn-around capacity for trucks. In the meantime, Rife said, BFI is doing some serious soul-searching of its own. She concedes that the company hasn't been the best corporate neighbor in the world. "We haven't been pro-active," she said. "We don't, for example, have a neighborhood advisory committee, but we intend to start one."

Susana Almanza, director of the locally based People in Defense of Earth and Her Resources (PODER), acknowledges that recycling has its proper place in the world. "Recycling is a good thing, but it's not fair that the company has been allowed to grow from a small newspaper recycling center 10 years ago into a full-blown industrial site." -- A.S.

Wait And Hear

The noise complaints issued around the Barton Springs area may be getting all of the attention right now, but if the buzz of Sixth Street merchant's "wait-and-see" attitude could be registered on a sound meter, it might just read off the scale. According to an Austin police memorandum addressed to downtown merchants, Austin's Municipal Court has changed the filing procedures for noise ordinance violations citywide, requiring that complaints be filed under state law instead of under the city ordinance. As a result, says Austin Police Department Lieutenant Harold Piatt, nights clubs and merchants will be in violation when a complainant convinces the courts that a noise is "unreasonable" -- thereby making the local ordinance's custom of a mandatory decibel reading virtually obsolete.

Already, merchants say they're worried about the apparently vague nature of the new law. "If [the law] is going to make it harder [to issue citations], that's great," says Steamboat's Danny Crooks. "But the way we [clubowners] first read it, is that an officer can walk by and consider the noise `unreasonable' without having to back it up."

However, Piatt says he is not anticipating that the new law will constitute a "substantial change." In fact, the change could put a heavier burden on the complainant to make his or her case that noise emanating from a club is too loud. "Under the city ordinance, anything over a reading of 85 decibels past 10pm constituted a violation," says Piatt. "Now, a complainant must go before and prove to a judge or jury that the noise was unreasonable. First though, the complainant has to call [the police], and we've directed our officers to first issue warnings upon such complaints. That way, citations will only be issued on subsequent violations on the same business night."

Another change in enforcement that ought to rankle downtown residents who say they are perpetually bombarded by loud music is that officers will discontinue their regular practice of "sweeping" the streets with decibel meters, and instead wait on citizen complaints. Even then, says Piatt, the noise must also be deemed "unreasonable" by the officer issuing a citation. "Just because there's a complaint doesn't mean we're going to take enforcement action," Piatt says. "It's like a speeding incident; just because you tell an officer you saw someone speeding doesn't mean we can issue a citation unless an officer saw it themselves. Therefore, the officer acting on the complaint is also going to have to witness, after the warning, an unreasonable noise in his presence."

City attorney Gail Posey backs up Piatt's contention that, despite the new filing requirements and elimination of the decibel reading mandate, nothing's actually changed. Posey -- who admits requesting the official change in filing procedure -- explains that for the past two years, officers have been re-filing citations issued under the city ordinance and prosecuting under the state's Disorderly Conduct Law for reasons of uniformity and appropriate legal principle. The recent move just makes it official. "This way... there'll be fewer clerical errors and less cases that have to be dismissed or re-filed -- which isn't to say the city ordinance is bad law or that decibel readings can't be used and considered. But what we're offering is a broader question for a judge or jury to consider." -- A.L.

Sue No Weevil

Tommy Funk was a believer. Now he's a plaintiff. In January, South Texas farmers voted by a margin of almost 3 to 1 to get rid of the boll weevil eradication effort in the lower Rio Grande Valley. The farmers -- who lost an estimated $140 million when their fields were invaded by the beet armyworm -- blamed the insect problem on the eradication effort. But Funk, one of the largest cotton growers and ginners in the region, voted to keep the program. He believed it would help the cotton industry over the long term.

Now, seven months later, Funk has changed his mind. And he has joined dozens of other farmers in suing the Texas Boll Weevil Eradication Foundation, the agency in charge of spraying malathion on more than a million acres of Texas cotton fields. Funk's suit, filed on July 18 in Cameron County, is the latest of three lawsuits filed against TBWEF, alleging that the assessment TBWEF has been levying on cotton farmers is unconstitutional.

On July 19, a state district court judge in Hale County agreed with the plaintiffs that the assessment scheme is unconstitutional, and issued a final ruling in the case known as Eddie Lewellen et al. v TBWEF. The agency quickly filed an appeal with the Texas Supreme Court.

Other legal battles are looming. The Texas Department of Agriculture is pursuing 829 cases against cotton growers who did not pay their 1995 assessments to TBWEF. Growers in several zones owe TBWEF a total of $544,093 from last year, and TBWEF has filed dozens of lawsuits for non-payment.

Funk is not happy that he has been forced to sue TBWEF. "I'm disappointed that a program that had so much potential and was so successful in other areas was mismanaged and has resulted in just the worst situation in the cotton industry in the Valley that I've ever seen," he said. -- R.B.

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