The Austin Chronicle

Then There's This: Aquifer Angst

Will the city poop out on a four-year fight?

By Amy Smith, September 28, 2012, News

On Oct. 11, City Council is expected to consider a proposed settlement to a legal battle the city took up several years ago, to block a request to irrigate treated sewage in the recharge zone of the Barton Springs Edwards Aquifer.

If council rejects the settlement, city attorneys will square off against the legal team of Jeremiah Venture LP, in a contested case hearing set for Nov. 14 at the Texas Commission on Envi­ron­mental Quality.

The proposed wastewater system would serve a planned 600-acre subdivision in Hays County along FM 967. With up to 1,400 homes proposed, developers seek a state environmental permit to dispose of up to 330,000 gallons of treated wastewater per day on about 130 acres of sensitive land noted for its porous limestone, over the aquifer that provides drinking water for thousands of households and feeds Barton Springs. Currently there are no other such treatment facilities in the recharge zone.

The city of Austin is the last man standing in what had been a multi-entity effort that included the Lower Colorado River Auth­or­ity, Hays County, and the Barton Springs/Edwards Aquifer Conservation District. The LCRA and Hays County eventually withdrew their protests, followed in May by the conservation district. Until a few months ago, city staff had been collaborating on the case with the Save Our Springs Alliance and the Save Barton Creek Association. Both groups have chipped in volunteer hours and funding to help pay for a 2011 report by environmental engineer Lauren Ross, who found evidence that existing treatment facilities in less-critical areas of the aquifer are polluting tributaries of several creeks in the watershed.

In June, when the enviro groups' leaders caught wind that city attorneys were negotiating with lawyers for Jeremiah Venture, they wrote a letter to the mayor and council urging them to stay in the fight, given the risks of direct recharge of the wastewater into the aquifer and the potential harm to adjacent city-owned watershed protected lands. Over the years the city, with voters' overwhelming approval, has used bond money and other funds to buy properties in environmentally sensitive areas. Voters will decide on a similar proposal, valued at $30 million, in November.

This month, a more urgent environmental call went out after SOS and SBCA learned that Nikelle Meade, a well-connected Brown McCarroll lawyer/lobbyist, had been brought in to help navigate the approval of a settlement that, according to sources, had deeply divided city staff. Last week, the environmental board passed a resolution urging the city to pursue its opposition to the wastewater permit. SOS's Bill Bunch and SBCA's Jon Beall provided testimony to nudge the board forward, with Beall telling members the proposed development "is dangerous enough that the city should exert the full power of their legal department in an attempt to get the best possible deal."

Contacted on Tuesday, Meade initially declined to discuss the case, but later called with the developers' lead attorney, Andy Bar­rett, sharing the line. Barrett was a lawyer at the former Texas Water Commission and served as a policy director to former Gov. George W. Bush.* He said the proposed agreement with the city is similar to the one reached with BSEACD (with monthly monitoring for pollutants and a 12-acre buffer between caves on the property and the wastewater site). But he said the city's deal would also tighten the developers' remediation plan should significant levels of pollutants be detected in four consecutive groundwater samples. In other words, they have to strike out four times in a row before they'll be required to enact a 10% reduction in the wastewater application rate, meaning 2.5 acre feet per acre annually. The proposed agreement also calls for a dye test in a few years to help city scientists determine the route and distance of pollutants.

Is that really the best the city can do? "We think it's a good compromise," Meade said, "and we think it makes the most sense for the city overall, so we hope that the council will be supportive of it."

Bunch, for his part, agrees that 2½ feet of wastewater on the recharge zone every year is better than 3 feet of wastewater. But he also offered some food for thought as the council moves toward deliberation: "Right now there is zero poop water irrigation on the recharge zone," he said, "and in two, five, and 10 years there should be zero poop water irrigation on the recharge zone."

An earlier version of this story online incorrectly stated that Andy Barrett also served in former President George W. Bush's administration.

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