Federal Judge Rules for LCRA on Dripping Springs Pipeline Project
A wave of turned earth obstructs views of the treetops rippling down into South Sunset Canyon. The mound frames a sandy channel cut through the trees along the southern verge of Highway 290 by the Lower Colorado River Authority. Thirty feet wide, the channel runs 14 miles, from Southwest Parkway Storage Tank on the outskirts of Austin to Dripping Springs, the biggest town in northern Hays County. Four feet below this earth, LCRA is laying a contested water pipeline. When completed, the line will move up to a million gallons of water a day from an LCRA treatment plant in the Village of Bee Cave to potential customers in northern Hays County. LCRA hopes to recoup the pipeline cost of $24 million by charging $4,000 to $5,000 per customer connection, with monthly billing expected to average $70 to $80 per household.
Twenty-four inches in diameter, the pipeline is planned to be ready for full service in the early part of November. The visible excavation actually comprises only the officially approved Phase I of a three-stage LCRA plan. Phase I will serve 7,600 connections: 2,500 existing rooftops, 2,100 platted and approved lots, and 2,970 lots as yet neither platted nor approved. In Phase II, a second line would run west along Hamilton Pool Road, also from the plant at Bee Cave. Phase III would allow the importation of water to the area from Lake Travis. (See map, p.30.)
On April 27, federal judge Sam Sparks denied a preliminary injunction to halt the project. The injunction had been requested in a lawsuit filed in December by the Save Barton Creek Association, Save Our Springs Alliance, and the Hays County Water Planning Partnership against the LCRA (co-defendant with the U.S. Army Corps of Engineers and the Dept. of the Interior). Sparks ruled on arguments first presented in a Jan. 23 hearing, and found that the current need for water in northern Hays County outweighed evidence of threats of "irreparable harm" posed by the pipeline to the Barton Springs salamander, golden-cheeked warbler, and black-capped vireo. Defending the Fish and Wildlife Service (FWS), whose approval of the pipeline came under attack from the environmental groups, Sparks declared, "The record indicates that FWS considered a multitude of factors, including direct and indirect effects of the pipeline, before reaching the conclusion that there would be 'no jeopardy' to the involved species."
The court acknowledged the threat of urbanization to Hays County posed by the pipeline, but concluded that it is too early to rule on the cumulative effects of the surface water project: "the plaintiffs' major concern over the ... project appears to focus on the potential new development that may be spurred by the pipeline ... the Court finds the merits of plaintiffs' claims can be addressed well before LCRA initiates service to any new development." Build the line, the court advised, complete the Environmental Impact Study (EIS), and then bring discussions about the repercussions of new development to the bench.
Two groups have battled over the pipeline since August. The project's promoters, led by the LCRA, Hays County Judge Jim Powers, and the state representative for Hays County, Rick Green, maintain that water shortages in northern Hays County necessitate the extension of utilities. "During the drought last summer," says Powers, "it became obvious that we needed surface water." Pipeline opponents, as represented by the local Hays County Water Planning Partnership and Austin's SBCA and the SOS Alliance, maintain that scrapping the massive pipeline in favor of smaller, more rural alternatives would prevent the rush of development and degradation of the Barton Creek watershed that they believe will follow the utilities. "There are going to be a few people who live in Sunset Canyon who are going to get water," says Bill Bunch of SOS, chief counsel for the environmentalists, "but they are also going to suffer the nightmarish side effects: the complete loss of their rural life."
But LCRA authorities were quick to praise Sparks' decision. "It ... confirms what we have said all along -- that delivering drinking water to the people of northern Hays County is the environmentally responsible thing to do," said LCRA General Manager Joe Beal. "It will resolve severe water supply problems in the area and establish stringent water quality protection measures that otherwise would not exist." Beal paints the decision as the happy conclusion of a process which began in 1990 when the Texas Water Development Board found impurities in Hays County groundwater, shortly thereafter enlisting the aid of the LCRA to explore an alternative water supply. Judge Powers echoed Beal's sentiments. "I think it's incredibly good news. We have talked about bringing surface water to Hays County for 20 years. With the shortages last summer, it's not only a smart thing for us to do, it's a smart thing for the environment. It will save the aquifer [from being drained]. As we continue to grow and grow (and growth is a reality) ... what we need is a reliable source of water."
SOS attorney Amy Johnson disagrees. "The fight isn't over," she said. "A preliminary injunction is very different from the whole case. The judge is not shutting the door. I think he's erring on the side of caution for now. We would have preferred if he erred on the side of the species." Bunch, Johnson, and the team of SOS attorneys see room for hope in the ruling, noting that the judge accepted the plaintiffs' warning of cumulative effects, though he refused to consider those effects at this time. "Our biggest concern is the growth from the pipeline," Johnson said. "Our case still has effects in the long term, [and] we are going to seek a final injunction." A trial over the final injunction is expected to come before Judge Sparks by August of this year.
To Erin Foster, co-chair of the Water Planning Partnership, Sparks' ruling was anti-climactic. "The pipeline's already built," Foster said. "I flew over it in a plane in January, right before the hearing, and it was almost all in the ground."
It is clear that the LCRA foresees dramatic demographic changes in Hays County. The question remains: Is the Authority reacting to development -- or inviting it?
Turning on the Tap
"We know there are people who need water," says Erin Foster, "but how many? They are in the process of building utilities to serve 50,000 -- that's over quadruple the population of [northern] Hays County." Foster says that the 650 Hays County residents who joined HCWPP would prefer alternative water supply programs for the area. But the statistics used by the Partnership and SOS are disputed by Robert Cullick of the LCRA. Only the figures regarding Phase I can be confirmed, Cullick points out, as no other line has been approved by the court or the Army Corps of Engineers so far.
Bunch says SOS and SBCA are fighting not only for Barton Springs and the Edwards Aquifer, but for the life of the Barton Springs salamander, the black-capped vireo, and the golden-cheeked warbler -- all endangered species. "As with other kinds of infrastructure and urbanization in the Barton Creek watershed, we have tried to fight [the pipeline]," says Bunch. SOS, the HCWPP, and others opposing the pipeline see it as more speculative infrastructure fertilizing rampant growth over the aquifer. Cullick and the LCRA say that they'll guarantee the safety of the salamanders and the birds -- at least in the short term -- and Cullick says that SOS has attacked the water line not for environmental reasons, but political ones. "You don't stop growth when you stop utilities, you stop the management of growth. SOS is taking action against growth management and environmental protection. Why?" asks Cullick.
According to Cullick, importing surface water into Hays County will in fact benefit Barton Creek. Citing a study done by UT for the state Department of Economic Development, Cullick says, "the Edwards Aquifer [the underground source of Barton Creek] may be at the point that Barton Springs will run dry during the next drought." Exhaustion of the aquifer will be prevented, continues Cullick, if the LCRA pipes surface water to Hays County residents. Bunch, however, foresees the aquifer as safe for at least 20 years, under present conditions. And installing the pipeline without a definite sewage disposal plan, he believes, means that the piped-in surface water will drain directly into the creeks, polluted by its runoff contact with buildings and roads -- threatening both streams and aquifer.
The present quarrel was sparked in the heat of last summer. As an olive branch to environmental activists, LCRA had promised the Save Barton Creek Association in December 1999 that before beginning construction it would provide an Environmental Impact Statement, written to current federal standards. Thirst intervened -- in March, 2000, 114 residents of northern Hays County signed a petition asking for surface water from the LCRA. Over the next couple of months, the grass frazzled and wells refused water to residents of northern Hays County, particularly in the northern Sunset Canyon subdivision. On May 2, the Hays Co. Commissioners Court declared a drought emergency for the area. In a Memorandum of Understanding to the LCRA signed May 24, David Frederick, field supervisor of the U.S. Fish and Wildlife Service in Austin, agreed to initiate a short-term study instead of the lengthier study promised earlier by LCRA. When they received the FWS's Biological Opinion from the first study in October, 2000, LCRA applied to the Army Corps of Engineers for a building permit. The Corps issued a permit for the pipeline the same month, and LCRA broke ground in December.
Somebody Yelled 'Emergency'!
In its initial study, FWS examined the threat posed to the salamander and other endangered species by water service to existing development only, considering the direct and indirect effects of water running off 2,500 existing rooftops. FWS is now conducting a second study, for an Environmental Impact Statement on all 7,600 projected connections. Will this second study fulfill the LCRA's promise? There has been some debate over whether the EIS will meet federal standards, but it may be good enough for Jon Beall of the SBCA. "All the indications are that [the study] is being conducted properly," says Beall.
The SOS is not reassured. "We don't know of any cases where FWS took a position where they didn't look at the cumulative effects," says Amy Johnson. SOS argues that, by looking only at existing development, FWS violated the Endangered Species Act. In the SOS brief, Bunch writes, "federal agencies must 'insure' that actions they authorize do not 'jeopardize' the existence of endangered species ... FWS is highly aware of the illegality of their position but made a deal rather than make Texas 'the poster child' for the Endangered Species Act." In his ruling, Judge Sparks said the court may consider this argument at a later date.
Pipeline opponents remain unconvinced that the water shortage in Sunset Canyon constitutes a public emergency. Said SBCA's Jon Beall, "I think the point the judge missed was that fact that these people have been through dry seasons in Hays County before -- now all of a sudden they need a government-supported agency to come to the rescue? They moved out there to have a rural lifestyle, with a water well and everything that goes with that."
"The study LCRA did to prove the [existence of the] 'emergency' is a farce, completely dishonest," echoed Bunch. According to Nico Hauwert, a hydrogeologist then serving the Barton Springs/Edward's Aquifer Conservation District, "Neither the results of [my] study nor the LCRA Hays County Drought Emergency Study indicate a serious water shortage in the Sunset Canyon area." Robert Cullick responds, "Nico testified in the federal hearing. ... It was clear, under cross-examination, that he was not qualified to decide whether the emergency did exist or not. I had the Texas Natural Resources Conservation Commission, county authorities, the state, and the people coming to me saying, 'We need water.'" Karen Bondy, chief engineer for the LCRA, also defends the emergency declaration: "To the people whose wells did not dry up, the situation may not have seemed urgent, but to the people with dry wells it was an emergency." Judge Power agreed. "The pipeline was not designed to promote growth," Power said. "It was designed to bring water to the people in Hays County who were already there."
State Rep. Rick Green, R-Dripping Springs, maintains that outsiders are driving the pipeline opposition. "The only opposition I've heard," says Green, "is from folks who don't even live in the area we're trying to serve." As Green sees it, unless opponents have addresses in northern Sunset Canyon, they should mind their own business. But Erin Foster suggests that Green might consider the opinions of the 650 Hays County residents already in the Water Planning Partnership. "We're going to keep bringing it to people's attention -- that this [pipeline] is for new development, and not for residents."
Certainly some residents want the pipeline. "I have concern about the environment," Sunset Canyon resident Linda Erwin told the Chronicle last year, "but when you wake up and can't take a drink of water, you have to deal with reality." Dede Stevenson, another Sunset Canyon resident, said, "We're basically looking at being without any water. Ten people had to redrill their wells in the last few months."
Yet despite the declared need, area residents have not been voting with their checkbooks. For a line designed to serve 7,600 connections, only 350 residents have signed up as paying customers. Given the supposed urgency of the water shortage, why the dearth of customers? Gayle Satterfield lives in northern Sunset Canyon, a couple of hundred yards from the danger zone. "It's overpriced," says Satterfield. "The connect fee is $4,000 to $4,500. I estimate that the minimum bill would be $70, but the average could be $100 a month. I have $7,000 in my well [and] I'm at 400 feet right now. If I go deeper, at $10 a foot, I could go down another 500 feet for another $5,000. So I'm weighing that: Why do I want to spend $4,000 connecting to LCRA? It would be in the interest of everyone to lower the connection fee."
Bunch and the SOS say the aquifer already supplies adequately to the area. Underground water in Sunset Canyon became trapped between wells last summer, Bunch believes, like metal stuck between two magnets. There should have been enough for everyone, but suction from opposing wells prevented flow, and nobody received anything. "In Sunset Canyon, there are too many wells too close together," he says. Without the imposed emergency, Bunch believes that people would see simpler solutions for Hays County's water problem. He cites rainwater harvesting and well management plans as alternatives to surface water, saying these already work in some parts of the county. But Karen Bondy, LCRA's chief engineer on the pipeline project, says she investigated these alternatives and still concluded the pipeline remains the most economical solution.
According to SOS, since Hays County water regulations were initially designed to protect the Trinity and Edwards aquifers, the influx of surface water will alter the whole regulatory equation. "As soon as you have a central water system in Hays County," says Bunch, "the minimum lot size [under the regulations] goes down to three to five acres. If you throw in a centralized sewer system, the minimum lot size disappears." SOS foresees the loss of regulations inevitably opening floodgates to new and more crowded development, including extensive roof space, with concrete and asphalt offloading the poisonous water, which would then be guttered directly into the Barton Creek watershed.
I Exist, Therefore I Develop
Ken Manning, LCRA's environmental policy manager, says that won't happen. Included in the contract between LCRA and the Corps of Engineers is a stipulation that anyone who connects to the water line will have to comply with recommendations made by the Fish and Wildlife Service to protect the Barton Creek salamander. "In many respects the recommendations resemble the SOS ordinance," says Manning. "We aim for the total non-degradation of runoff water from development. Our impervious cover numbers are in some cases tighter than in the ordinance." The well-being of the salamander, the warbler, and the other endangered species are paramount in the list of requirements and specifications for potential customers. But will the LCRA be able to enforce these recommendations? "This is not a handshake agreement," says Robert Cullick; if a customer does not comply, "we would be in violation of our permit -- that could lead to us being taken to court by the FWS or the Corps of Engineers." Matt Lechner of the FWS is likewise confident that sufficient safeguards are in place in the agreement. "LCRA and Fish and Wildlife Service will work together," Lechner says, "to ensure that these measures are met by people getting water from the pipeline." Jon Beall also praises the safeguards. "LCRA has done well and they deserve credit," he said.
Bunch disagrees. "There are 15 different ways for developers to squirm out of these guidelines," he said. The SOS brief characterizes the measures as too flexible, "still contingent upon the LCRA's 'Environmental Impact Study' and may be modified by the FWS."
Reading between the legal lines: nice guidelines, but good luck babysitting developers.
In fact, Lechner was the FWS agent who signed the Biological Opinion allowing the pipeline project. Yet at the January hearing, he testified he had never seen a map identifying the "existing development" signed up for the water line. "It was something which I wanted to see," Lechner said, "where and how much existing development would actually get water, where and how much undeveloped lots there were that would be included as 'existing development.'" Yet despite this uncertainty, Lechner approved water service for existing development.
Erin Foster and HCWPP also question the real intentions of the pipeline project. "LCRA promoted this project for existing development, but the terms 'existing' development and 'new' development have been twisted by the LCRA." Foster points to new developments like the Carr Development, platted right on the route of the line. "It's irresponsible to come along and put a pipeline in the ground, and just say, 'First come, first served,' she says. "The authorities need to be more concerned about people already living in the area who can't afford to hook up to the pipeline, because it's developers who can afford to connect who will get all the water. We would like to see water allocated to existing residents first and forever."
Outside Bert and Ernie's General Store on Hamilton Pool Road in Dripping Springs, it looks like they just recently leveled the hitching posts to serve as jambs for parking spaces. Inside, there's a faint smell of gumballs. A massive fridge glows just inside the entrance; bar stools welcome the weary, and pool balls rumble in the corner. A sign on the wall declares, "Love thy enemy, but keep your gun well oiled." Ellison, working the counter for Bert and Ernie, shakes his head. "We don't want no pipeline," he says, "They're bringing the city to the country."
More or Less
Perhaps surprisingly, some customers blame neither the developers nor the politicians nor the LCRA for the pipeline -- but the SOS Alliance and the environmentalists. Melody Grider says, "The passage of the SOS bill for Austin forced a lot of growth to jump outside Austin. They should have thought of it [sprawl and the danger to the salamander] in the beginning. When they blocked growth in Austin, they [SOS] didn't think it through."
Even Bunch acknowledges some truth in that claim. "If you create hurdles in one area," he says, "developers will look in places where they see easier pickings. Looking north of Austin to Round Rock, and northwest to Cedar Park and Leander, urbanization is happening. Southwest of Austin is a largely undeveloped area -- [but] we have worked very, very hard to educate the investment community that [the Barton Creek watershed] is not an appropriate place for development."
Grider welcomes the pipeline. "The use of surface water is going to save the aquifer. I don't think you're going to be able to stop development [in Dripping Springs, but] at least everyone's going to have water."
Laddy Lawis agrees. "For one thing, last summer a lot of wells dried up around here, especially around Sunset Canyon. They're draining the aquifer anyway."
Rick Green declares bluntly that for the needs of his constituents, he would condone the destruction of the salamander: "Not even a contest, not even close. I wasn't elected by the species, I was elected by the people. If it came down to the salamander versus the needs of the people, I'd go for the people every time." Ken Manning of the LCRA presents the opponents in softer light: "SOS seems to believe that you cannot protect the salamander and allow any growth at all. We believe salamanders can be protected while growth is happening. It's necessary to have certain controls and regulations in order to protect the water quality, but that can be done."
By the LCRA's calculations, Hays County has grown 49% in a 10-year period, and the authority argues that development will march on -- with or without its waterline. Cullick says, "I drive around the Dripping Springs area, with all the publicity about wells running dry, and I might see 15 new houses under construction. There are problems with a well on one lot, and they're digging another well right next door!" Steve Parks, the LCRA's head of construction on this project, says the company wouldn't be in Hays County without an invitation: "We only go where there's customers."
Bunch responds, "Less is better. In my mind, it is not a responsible act to target the watershed for any urban-style development." Bunch sees the strategy of non-extension of utilities as a linchpin of the Austin Tomorrow Plan, which the city and its residents approved by referendum in 1979.
Pamela Simmons runs a secondhand bookshop near the town of Dripping Springs. "I feel torn," she says. "As a property owner, the pipeline means I will be able to sell my property for a good price. I can wait five years, take the money and run. If you had asked me five years ago, before all this traffic came out here, I would have said 'No way' to utilities. I moved out here for the quiet, but my quiet is already gone. I'll just have to run further, to Alaska. I grew up watching the Bay Area in Northern California develop. The same thing is happening here. Poisoning water and killing animals just seems to be part of the growth process."