Bethany Mission Subdivision & Water Quality

Ruth Andersen reported on her research regarding water quality and other issues related to the planned construction of a 272-unit apartment building on the Mission Bethany Subdivision (MBS), as follows:

I. Background

 A. Why Should We Protect Barton Springs and the Edwards Aquifer?

The Edwards Aquifer supplies water for drinking and other daily uses for 1.5 million people in Texas, including Austin and San Antonio. It also supplies water for local farms and wildlife habitat. An incredible, invisible resource right beneath our feet, the aquifer is an underground layer of limestone that captures and holds water, which occasionally surfaces (through cracks in the limestone) in the form of springs. The aquifer’s huge freshwater zone extends through nine counties: Travis, Bell, Williamson, Hays, Comal, Bexar, Medina, Uvalde, and Kinney. The Edwards Aquifer is a crucial source of water for urban and rural needs, providing an average of about 800,000 acre feet of water a year.

The “Barton Springs” portion of the aquifer (named for Barton Springs itself) is the separate aquifer segment around Austin. Every day, the Barton Springs portion discharges about 34 million gallons of water into the Colorado River, contributing significantly to City of Austin’s water supply. The Colorado River is dammed in several locations to form the Highland Lakes system, a series of reservoirs that serve this area. Because of its crucial role in local daily life, in 1988, the Environmental Protection Association (EPA) named the Barton Springs segment a Sole Source Aquifer. That means it is the main or only source of drinking water for this area.

In the Barton Springs portion of the aquifer, water moves very fast through open rock channels, and no filtration occurs. The aquifer is very useful as a water source because of its location, but it is highly susceptible to contamination. It has been widely studied by scientists and is considered a key element of the endangered Central Texas environment. In fact, the Barton Springs portion of the Edwards Aquifer is the most endangered aquifer in Texas, very vulnerable to pollution because it is relatively small (in terms of the increasingly populated area it serves) and also highly porous and threatened by our region's land-development boom.

Water from our local portion of the aquifer emerges above ground at only one major location: Barton Springs. At this outflow point, the sparkling aquifer waters create Barton Pool, a natural "swimming hole" that is the jewel of Austin's beloved regional park system and a major recreational resource for our community. The condition of Barton Pool serves as a warning of pollution within the watershed and the aquifer, the source of our drinking water. More than two decades ago, officials began to close Barton Pool from time to time because of bacterial levels that contaminated the pool following storms. Obviously, however, they could not close the entire aquifer, into which the pollution had been carried by runoff from developing areas.

The quantity of water in our aquifer is determined by how much rainfall we have and how many people are using the water. The quality of our water is determined by what goes into the watershed (that is, the area that drains into the aquifer). Oak Parke is built on top of, and is surrounded by, watershed lands. Whatever contaminant substances the rainfall picks up from this special “recharge zone” changes the rainwater into polluted runoff. This runoff flows directly into Austin’s network of creeks, which in turn “recharge” the aquifer underground.

B. Aren’t There Laws Protecting the Aquifer?

Some laws are in place to protect the aquifer and the water supply, but they have limitations and can be circumvented by those who have the power and influence to do so.

At the Federal Level: Federal law requires that any building project receiving federal funds must be specially reviewed if it could potentially pollute a Sole Source Aquifer.

At the State Level: In the past, the Texas Legislature has given in to the interests of developers and passed laws that loosened local controls on development that could affect water quality. One of these laws that applied to Mission Bethany Subdivision was tested and found unconstitutional (see Item #2 below).

At the City Level: In the 1970s, under the Austin Tomorrow Program, monitoring of lakes and creeks in the Austin area was begun. In 1981, the city joined EPA's Nationwide Urban Runoff Program study. Over the years, the City of Austin has studied how pollutant loads in storm-water runoff, groundwater quality, and impervious cover (buildings and pavement) affect water quality. Studies that continued into the mid-1990s showed that pollution found in the Austin area was largely from non-point sources. Non-point source pollution is what is carried by runoff from impervious cover, rather than from one specific polluting location or entity, such as an oil spill or factory waste discharge. Research on water quality in general has shown that the higher the percentage of impervious cover built over any given area, the more the water system (creeks, rivers, etc.), deteriorates and the more the water quality suffers. The City of Austin has also studied the effects of locally based, changing land-use and confirmed that water quality  deteriorates when lawns, buildings, parking lots, and paved roads take the place of natural soil and native plants.

In 1997 the city's Watershed Protection and Development Review Department published the Barton Creek Report, which summarized many of the studies. The report recommended that the City of Austin purchase land and development rights in watershed areas under its jurisdiction. The hope was that this protection would help offset damage caused by development in areas outside the City’s control. (The city has jurisdiction over less than 25 percent of the total land area that contributes to the Barton Springs portion of the aquifer. The other 75 percent is protected only minimally by state regulations.) The city followed this recommendation, and the Brodie Wild tract (adjacent to Oak Parke and Mission Bethany Subdivision), is one such Water Quality Protection Land.

In response to the studies, Austin also passed a number of laws. In 1986, the Comprehensive Watersheds Ordinance was enacted. It is now part of the City’s land development code and restricts development throughout the City's jurisdiction as well as setting limits to impervious cover. According to recent information from the Trust for Public Land, in the first five years after passage of the Comprehensive Watersheds Ordinance, 86 percent of Austin-area development went forward without complying with the law’s provisions, primarily because of zoning variances or “grandfather” clauses that exempted the developments from regulation.

The Save Our Springs (SOS) ordinance was passed to help protect the aquifer from non-point source pollution by limiting the amount of impervious cover allowed when land is developed. Limits on impervious cover help to reduce water pollution caused by soil and sediment, oil, grease, heavy metals, chemicals, pesticides, and fertilizers that are picked up by rainwater running over the land as it enters the watershed and then the aquifer.

Sources:

http://www.lcra.org/about/overview/history/history2.html - (Lower Colorado River Authority)

http://www.tpl.org/tier3_cdl.cfm?content_item_id=917&folder_id=745  (Trust for Public Land)

http://www.tpwd.state.tx.us/kids/wild_things/tortuga/ttex_edwards_aquifer_vocab.phtml (Texas Parks and Wildlife)

http://www.epa.gov/owow/nps/whatis.html (U.S. Environmental Protection Agency)

www.sosalliance.org/ (Save Our Springs Alliance)

II. Meeting with the WPDRD

Why is Mission Bethany Subdivision at a crucial crossroads in the context of the watershed, water-quality protection, and the environment of the Oak Parke area, Austin, and Central Texas?

To answer this question, on June 26, 2008, Dr. Andersen met with Pat Murphy of the City of Austin Watershed Protection and Development Review Department (WPDRD). Mr. Murphy also included Tom Nuckols, an attorney with the City of Austin Law Department (i.e., the City Attorney’s office) in the meeting, Kedron Touvell (representing Save Barton Creek Association) was also present for most of the meeting.

Mr. Murphy and Mr. Nuckols provided information digested in items 1-10 below, which describe the facts as these two men presented them in the meeting, as well as some opinions that they expressed:

1) Mission Bethany Subdivision and the Aquifer

The Mission Bethany Subdivision (MBS) is in a very sensitive area in terms of the watershed and the Edwards Aquifer. WPDRD has mapped the area of MBS and surroundings to show where runoff goes in relation to where the creek system and watershed are located. WPDRD has run tests and determined that runoff from MBS land reaches Barton Springs in about 40 hours. At present, all of the runoff from the Mission Bethany site is routed to an existing manmade holding pond. The runoff then travels downstream into a tributary of Williamson Creek watershed, where it recharges the Edwards Aquifer in the creek bed. The recharge in this tributary takes approximately 40 hours to emerge at Barton Springs. This crucial location in terms of the watershed/recharge process is why the MBS land requires better water-quality standards than were present under past state law.

2) State Law: Unacceptable and Ultimately Unconstitutional

The past state law that the City sees as insufficient to protect the watershed was enacted in the late 1990’s. That legislation created Water Quality Protection Zones (WQPZs). These were responsible only to the County, not to the City of Austin. The City saw this law as a direct attack on the Save Our Springs ordinance. The City fought the law in court and prevailed: the WQPZ law was found unconstitutional. There is no site plan on file with the City for the original MBS construction because it was planned during the time when WQPZ legislation superseded City code. The Circle C development, including what is now the Mission Bethany Subdivision (MBS), was in a WQPZ. The original site plan was approved by the County and was placed on file with the County in November 1996.

3) Bethany Church: Vested Rights?

Defeating the WQPZ law was a huge victory for the City, because the requirements of the WQPZs were much looser as far as protecting the waster quality of the Austin area. When the City annexed a portion of South Austin land including MBS, the MBS property became subject to City code related to water quality. Bethany Church had already started construction, however, and had not planned to comply with City code. Bethany asserted that it had vested rights and should be allowed to build without complying with City land-use and water-quality code. The City disagreed and said Bethany must comply with SOS and other applicable laws. Bethany threatened a lawsuit.

4) An Ordinance for Bethany

In 1998, Faced with this threat of a lawsuit, the City was willing to “grandfather” in the MBS site plan and compromise. The City Council met in closed session and passed a specially tailored ordinance designed to address Bethany’s problem, help Bethany proceed with construction, and prevent a lawsuit. The ordinance was intended to provide the supposed “vested rights” to Bethany Church. While limiting the permissible subsequent construction to use for religious purposes, the ordinance also specified the few and very limited elements of City code that Bethany would have to comply with, saying it could disregard everything else related to land use and water quality. Nevertheless, the ordinance looked like a good compromise to the City, because it said that if Bethany did any further construction on any of the property, Bethany would have to retrofit the existing water-quality-related construction to comply with City code. The City saw that as an improvement in the sense that the old WQPZ requirements were not as demanding in terms of their effect on water quality.

5) Another Ordinance for Bethany

However, the 1998 ordinance did not resolve Bethany Church’s problem after all. Bethany considered the cost of retrofitting the water-quality pool and other construction needed to get into compliance with the parts of City code that the special ordinance had left in place. That expense, combined with the small number of potential paying residents in the area for the planned Lutheran assisted-living facility, seemed to make building the facility a losing proposition. As the years went by, Bethany tried various strategies to sell or develop the land, without success. Bethany still wanted to build something that would create income and help them retire their debt for the large worship facility that they had already built. So, Bethany then came forward again (in 2008) asserting that they had made their development plan before the City annexed the property and passed the ordinance. They insisted they had a vested rights and a vested interest in continuing their development process as desired so as to retire their existing debt. Again, they threatened a lengthy, expensive lawsuit. The City was intimated by the threats and passed another ordinance in an attempt to solve Bethany’s problem. The 1998 ordinance had said the land could be used only for religious purposes, including an assisted-living facility for Lutherans. The new ordinance (2008) (now in effect) broadens the possible uses of the property to “residential,” and even specifies in so many words that a 272-unit apartment complex can now be built on the MBS tracts.

6) Why the City Compromised

When the City Council was considering the proposed ordinance, the Council met in executive session to receive legal advice from the City Attorney about Bethany Church’s vested rights. The legal issue involved was that Bethany asserted that they had a vested-rights claim based on a prior plan to develop (not on an approved site plan, since there was never any City-approved site plan on file). Bethany portrayed their situation as having no choice but to pursue whatever legal means necessary to win and to be able to address their current financial situation through profitable development of their property. They specifically threatened to file a lawsuit and fight it to the end. The City realized that it would require considerable resources to litigate the matter. It would be a case of taking a risk at considerable cost. The City Attorney assisted the City Council in weighing the risks and factors on each side so the City could decide how to proceed. The case seemed best handled by the ordinance that was passed as a compromise. The City Attorney and WPDRD share the view that the compromise was the best that could be done under the circumstances.

7) The Bethany Ordinances: A Legal Anomaly

Both the 1998 and the 2008 ordinances were unique and specific to Bethany’s situation. Each of the ordinances was passed specifically to accommodate Bethany Church and avoid a lawsuit. They are anomalous and an illustration of the proverb, “Politics makes strange bedfellows.” On the advice of the City Attorney, the City Council considered the ordinances desirable compromises that would save the City the expense and trouble of a lawsuit. In both cases, the City Council voted in favor of the ordinances because Bethany threatened a lawsuit. The ordinances were intended to accommodate Bethany’s needs and solve its problems. The 2008 ordinance was made much broader in terms of land use because the first ordinance did not solve Bethany’s problems. According to the ordinance that was passed specifically for Bethany Church, neither Bethany nor any developer building on the tracts in MBS has to comply with SOS. They are exempt from SOS.

 8) Where Was the Public?

The City Council meetings to consider this matter were executive (closed) sessions. Three separate public hearings were conducted on the matter. There was no public testimony addressing the planned development of MBS because the public was unlikely to have understood the notice of these hearings, which was not as usually given, but was just a one-liner about “Mission Bethany” in the required postings. You would not be able to understand what the posting meant unless you were one of the specialized organizations monitoring such things.

9)  What’s the Plan Now?

No site plan for the planned construction on MBS specified in the tailored ordinance has as yet been approved by the City, and none is formally on file. However, the City has an engineering report labeled “proposed site plan” submitted by Cunningham and Allen, a firm that is working for both Mission Bethany and Walters Southwest and Mission Bethany. Walters Southwest is the development firm currently interested in buying the MBS tracts to which the ordinance applies and building the 272-unit complex mentioned in the ordinance. Under the proposed new site plan, the known amounts of water pollutants will be less than they are now, with the existing pond. As far as amount of allowable impervious cover, the plan DOES NOT meet the requirements of the Save Our Springs Ordinance. Mike Kelly [of WPDRD] worked with engineers for BC and Walters Southwest for weeks and challenged them with providing the best water quality possible in their site plan. They made significant reductions, the water will be collected and held and the end result is that the water quality will be better than it is now, with the pool that was built under the legislation that was later found unconstitutional. The 2008 ordinance permits 650,000 square feet of impervious cover.

10) What About Our Water?

The new controls shown in the proposed site plan for MBS will not control the runoff from all the vehicles, impervious cover, construction activity, etc., if the 272-unit apartment complex is built. They relate only to changing what is now in place for Bethany Church buildings. The 2008 ordinance permits a total of 650,000 square feet of impervious cover on the MBS tracts: much more than would be allowable under the SOS law, which is suspended by Bethany’s special ordinance. Runoff from the proposed construction will be a definite danger to the Edwards Aquifer and Barton Springs, but is hard to quantify and difficult to get the public to take an interest in. Water can take a lot of pollution and still be able to buffer it, but there is a tipping point where one more challenge to its quality can push it over the edge. Then the water cannot take any more pollution and it becomes unsafe. Austin and the state of Texas have a pro-development mentality. People would be likely to care about the issue of water pollution and danger to the watershed only if some people were to actually die from bad water quality.  ■