Travis County Commissioners Court
January 2, 2007
Item 7
Item no. 7. Is to consider and take appropriate action to set public hearing pursuant to chapter 26 of Texas parks and wildlife code to receive input and discuss a proposed change of use by the city of Austin, Texas, of the cortaņa tract, and whether the county should approve an amendment to the balcones canyonlands preserve habitat conservation plan and the u.s. Fish and wildlife 10(a) permit granted to Travis County and the city of Austin. This item only goes to whether or not we should set a public hearing. If we do, we have to give at least 30 days notice. And have to give our purchasing office 3 or 4 days to -- to publish an appropriate ad and n a local newspaper -- in a local newspaper in order to comply with the law. So to be safe, if we do a Wednesday evening, which I think we did last time, at 6:00 p.m., about 34, 35 day goes from today, days from today, what is our 2007 calendar say?
>> I guess --
>> 14th?
>> beg your pardon?
>> okay. It would be about February 14th.
>> yeah.
>> I guess my point, though, judge --
>> hold on one second.
>> I'm sorry.
>> the other thing that I would like to say is okay if February 14th is what we are looking at, I have advised the city that in my view we should post, if we do this even for February 14th, in approximately two weeks from today, we should post this item to get some indication of the Commissioners court's intention and unless our intention is to favorably consider altering our previous decision, then we ought to go ahead at that point and make a decision about the public hearing. And if the question is what's important in two weeks is basically to give the city a chance to -- to do whatever additional steps it believes that it can do to persuade Commissioners court or take another shot at county staff to change its mind. The court to change its minds. So that's the thinking that -- that's the thinking there. Commissioner Davis?
>> thank you, judge. On that last request I want to make sure that I understand. The time frame for -- for -- as far as what you suggested as far as the court, members of the court, rather, let's say that -- that members of the court or members of the court are not going to change their mind, the point is why have the public hearing? And-- and I don't think that from what I have seen, I guess I need to hear from staff again, what I have seen presented is that there -- nothing really hasn't changed according to what -- what has been brought forth to us now. So -- so if nothing has changed, as far as what the city of Austin is presenting, supervision looking at the cortana tract, as far as their proposal, to locate the water treatment plant number 4 there, if nothing has changed in the same -- the same being that was brought before us now during the last public hearing in October, in fact October 4th, I'm trying to see what the significance is of -- of having another public hearing in -- nothing has changed. In other words the same thing that they brought last time, bring us back, the staff, I guess that I need to ask staff -- that's the question. Has anything changed since October 4th from the last public hearing that we had on this?
>> john kuhl, environmental officer of Travis County.
>> as far as the city is concerned?
>> well, obviously they have continued to -- to evaluate sites. I think that in terms of -- of chapter 26 hearing in the elements in the code that speak to that, we -- we as a staff do not have a different position than we had at the time of the original hearing. I know this has been a very difficult issue for policy makers, very different for policy makers as well, we are here to do the job they hired us to do. Many of you know me, you have known me for eight years, we have worked together for a number of issues, especially solid waste issues, things like that. Just to remind you my back background is in wild live and fishery sciences, I was one of the preparers of the eis, whether you hate it or like it, I participated in that. I don't consider myself biased. I used to have many friends at the city of Austin and I would like to get resolution to this matter just as you would. My opinion is that there are alternative sites; therefore, the first test of 26 is not met. Whether they see feasible or prudent is probably the crux of the argument. They perhaps have a different standard than we do in interpreting those -- those --
>>
>> [indiscernible] cautious.
>> feasible or prudent, right.
>> so -- so I guess in listening to a lot of -- I think testimony during October 5th, it appears having the summary overview of what was presented to us last time -- last time, it appears that the cortana tract is something that the city is going to continue to push forward with. Let me ask this question. Can the city of Austin go at this -- as far as trying to acquire amend an permit over in the bccp, be able to go at this in a solo effort without involving the county at all as far as the partnership is concerned?
>> that may be a legal question that we may want to ask in executive session, Commissioner.
>> all right. If that's a legal question, I will need to ask it during executive session then.
>> Commissioner, let me tell you, I can tell you that if it were a private citizen or developer that had this issue and was choosing to do this, that is the only route that they would have would to have an individual 10 a permit. I agree with john, that's very appropriate for the discussion in this context in executive session.
>> okay. Because I think in the next -- well, let me ask this next question as far as compliance is concerned. We -- you know, I guess according to the state parks and wildlife code, make a change, stuff like that. My point, though, is that -- is that we legally have a -- a public hearing, I think as a required situation, what -- what is the requirement, what is the legal requirement for this particular hearing since we've already had it and we, of course, looked at this and of course the finding that we are suggesting and we looked at it, we rejected the city of Austin proposal based on -- based on our interpretation of physical and prudent and in other words as far as the findings are concerned. So I'm just saying that if we are going to go through another public hearing -- I guess what the court wants to do, if the court has a will, they are willing to do it. I'm not here to fight with nobody. I'm coming here as a humble -- want to work together type of person. But if there has not been enough due diligence for situations outside of the bccp, if you want to disturb those habitats, I think those things need to be looked into. But I'm not -- I'm not the city, I'm not pushing this. But I'm still trying to be as humble and as -- as cooperative as possible but -- but my concern is that -- the question that I just asked, since we have already had a public hearing on this particular issue, and nothing -- it appears that nothing has changed since that public hearing, why are we having another public hearing?
>> [one moment please for change in captioners]
>> if there's a change of mind, then you're suggesting a public hearing?
>> right, we should go through the whole process again.
>> again, okay. Based on that, now I'm looking to my attorney. I'm looking to my humble attorney to my left, looking him right in the eye.
>> right.
>> so you're saying if there's a change in votes, or to see if there is a change in votes. We don't know that yet.
>> right, you don't know that yet.
>> there was an article in the paper and I'm just going to say it right up front, my vote's not going to change. I'm going to say what I need to say now and I just don't think if it still continue to be on the cortana tract. So you don't have to wait for a public hearing to know what my vote is.
>> the two things that stand out to me, one is that last time we were really sort of pressured timewise. A after listening to all the evidence available then, public hearing, what we received from the city, I cast my vote. Since that time, though, the city says we have done additional work and we want to share that with you. And they share that with county staff in a -- how long did the meeting last?
>> two and a half, three hours, something like that.
>> two and a half, three-hour meeting. And the county staff and our lawyer briefed us, especially our lawyer, in executive session last week, I guess, or two weeks ago, about an hour, answered whatever questions we had, and a majority of the court was convinced that we ought to stick to our decision. That's evidenced by the fact that there was not a motion to change it. Since then, though, some representatives of the city have said your staff is unduly negative towards us. And we want an opportunity to share information with you. And we still have a time constraint. There's no way for us to meet the late January deadline; however, I don't know that it would have made sense for us to stay two weeks and then do a public hearing because then have you more than two months rather than more than one month. So my thing was, okay, we'll post this for public hearing if the majority wants to, go ahead and start that timer running, but frankly, two weeks before the public hearing, I would know whether have you the information necessary to make me change my mind. And in my view at that point, two weeks out, we post the matter on the court's agenda for a determination. And if the majority of us says let's go on with the public hearing, then we think we may change our minds. If the majority says, hey, I'm not going to change my mind, which is a good position to take if the facts support that for you, then there's no reason to wait until the hearing date. Two weeks out we just cancel the public hearing. So that means we stand by our vote. To make matters even worse I have promised the city that I will do that, and the statesman did accurately cover what I said, and that was we're posted for public hearing, but understand if it seems clear that a majority of us will not vote to support cortana, then two weeks before the public hearing, and then I thought the public hearing would be early February, not February 14th, we'll put it on the agenda. And it really is a way for us to know whether the majority is inclined to reverse that decision is to post it, the only legal way, right, tom, is to post it, come in here and decide. But if we say let's go on with the public hearing, then at least that means we are disposed to reversing the vote. Now, one of us has the luxury of not being around to cast any votes before, but to the city I said, yeah, I'm still willing to listen to whatever evidence there is, so I guess my position is it won't hurt me today if the majority says let's not go to the public hearing.
>> judge, the thing about the information being presented by the city is -- heanz abled me to really focus on what is at stake here. And for me it's the permit. And the fact that we are both holders of that permit, then it says that we both have some responsibility and obligation to conserve that permit, which means conserving an area that is in the bcp. And just intuitively, it says, you know, if we set that land aside for the bcp, then why is it on the for one party or the other to try to pull land out of the bcp, which I think we can't really do, but on the other hand I also see a huge conflict between the county and the city, the two permit holders. And for me it makes sense to have mediation on this issue because we're going to go back and forth and back and forth, and it sound like we'rener going -- the we're never going to -- chances are the county is never going to see the stuff's side and the city can't see the county's side, why we don't move. And to me it just makes a lot of sense to have mediation instead of a public hearing. And let's try to work this conflict out the best we can and reach agreement with our contract, our permit, the laws that pertain to that permit, and it sounds like a conflict that's going on, and mediation is the best way to work out the issues. I don't think a repetition of the process that we've gone through before is going to land us in any kind of better position to make a decision.
>> I think that voting to have the chapter 26 hearing in order to essentially leave the door open, whether we walk through the door or not is another matter, but to leave the door open for a period of time that the city -- for the period of time that the city says it has, that in that interim time if we were to vote for a chapter 26 hearing to be posted, it perhaps could give us the opportunity to set up that kind of mediation.
>> fine with me.
>> what do you mediate? What issue do you mediate?
>> the permit.
>> well, I think --
>> for me it's mediation of let's put the permit on the table. Let's see what the permit says and try to come up with some agreement from both sides as to do wech the right to take land out of the bcp, for instance. That's what I see. And taking land out of the cortana tract in order to do something else does not seem to be part of the permit allowable by that personality. But we can argue all day long and all week and all month about what -- who's right and who's not. And I think it just makes much more sense to recognize it for the conflict that it is and try to get somebody to help us work out those conflicts.
>> I think the sticking point in the language -- correct me if I'm wrong, legal, but the standard in chapter 26 that we are held to is that there is no other feep I believe and prudent -- feasible and prudent alternatives to taking the cortana land. And that there's a program or project -- the program or project includes all reasonable planning to minimize the harm resulting from that specific take. Thowp, I believe, are the two standards. There's a third clearly enunciated that local preferences have been considered, but I think the first two are the realisticking points. And the first one you have to get over that hurdle to even get to the second. So I think that there's a possibility that mediation might be helpful in regard to feasible or prudent. I believe, and I'm speculating because the city isn't here to speak for themselves, that they are standing on the argument that it's imprudent to build at bull creek because of the environmental concerns there. And yet they're also saying they will build there if they aren't able to build on cortana. So it seems that they are having a conflict in their own findings, and I think that that might be an area that if we could not come to compromise on where to build, at least through mediation, perhaps both parties would be more clear about the other's position.
>> that's what I think.
>> but I guess my whole point, though, I hear what you and Commissioner Gomez are both saying and I don't disagree with mediation. I think sometimes we have to come to the bottom line and sit at the table. I don't think staff has closed -- our staff has not closed the door to any type of meetings or whatever in aspects of the direction we're trying to go. But what I'm hearing staff saying is that -- in other words, if people are not going to move off the dime, then that is a sticking point. Staff is recommending that we do not support the city of Austin proposal to actually move on the cortana site. And of course, there are other alternatives and have they all been explored? I have not had an answer from anybody to see if these other alternatives have been shrord. What are we looking at, proximity, flatness of the land, environmental sensitivity. Those are things that we must hold on to if we're really serious about protecting the balcones canyon land preserve and protecting the species that reside there. If we're not serious about that, next month Travis County can say, we'd like to go up there and do this, da, da, da in those preserves and they were set aside for a specific purpose and that's to protect the species and thing that reside there. If we aren't going to do that, then of course that's another story. According to our county staff, who has worked hard on this for a long time, this is not a good idea per se.
>> they're saying that it's not a good idea, but perhaps we can help the city off of that ledge --.
>> mediation and whaf we need to do and continue to deal with the stoi that to show them where we are seeing that it's not a good idea, city, can you do something else? And I think that may help present it. I don't really know, staff. Staff would be the only ones to answer that. I haven't been at the three or four hour meetings. No, I have not, but staff has been there. And I don't know if they have brought an alternative site that may have even come in lately as far as another solution to the problem.
>> has staff position changed since y'all reported to us last week?
>> no, sir.
>> staff is saying based on what we have seen and heard, our position is the same that it was in August or September, right? If there's no new and different information or different spin to put on the old information, then it seem to me we're right where we've been. But I think we need to give the city a chance. Now, hold on. Do we have reason to thabl the city is interested in mediation.
>> we have an off.
>> why don't we schedule the public hearing for February fownth, leave open the mediation door, still I think that if we're not headed toward a different conclusion, in my view we ought to put this back on the court's agenda in two weeks and do it. So I said okay, I'm willing to listen to whatever you've got and I didn't say I'd go to the meeting alone. I still would need some county staff there. So if it gets super technical I'd want to help somebody to help me interpret it. But I didn't want to just close the door. That's putting too much pressure on staff. But I did say you've got to understand the briefing we've gotten so far has been to the effect that the decision we made initially was the right one based on the facts. And then when they ask the question, let us come over and meet with you, let us give you additional information, I mean, I just didn't have it in me to say, no, I can't. I'm willing to spend whatever time is necessary to look at whatever they think we have yoaf looked -- we have overlooked. Whether I change my mind after seeing that remains to be seen. And in the end I kind of have to say, look, what is if we look at this, what are we left with? Tom will tell us that still legally we have those three affirmative findings we must make that the law requires. There's no way to get around those?
>> two findings and the third is you have to consider local preferences in making those findings. It's two findings and one thing you have to consider in making those findings.
>> and one other thing I would like to put out on the table as we're considering this chapter 26 hearing, there has been some movement that was actually initiated, I believe, by tnr, by our staff, regarding sites in the lucas tract and in the terio trablght. And those have been suggested to the city and the city is looking into them is my understanding from the city. So there is some movement, although it is our staff initiated, and in the event hypothetically speaking, because of course we don't have anything on the ground, but hypothetically speaking, if we were to locate some alternative tract aside from the bull creek and cortana tracts that's outside the preserve that the county could in some way enter into a negotiation with the city for the purchase of -- I don't know if it would be a three-way transaction or what because I understand that we are in the process of purchasing lucas. If something started to gel there, then there would be no need for the chapter 26 hearing, am I correct?
>> you don't have to do a chapter 26 hearing.
>> and am I also correct if we started to negotiate with another tract that would also indicate that there is another feasible and prudent alternative? Of course, prudence hangs on a lot of things. I would imagine an element in determining prudence is cost as well as environmental compatibility as well as how fast you could do the deal considering the city's alleged time constraints on their water needs.
>> Commissioner Daugherty?
>> sarah, I wish we had the time to do it. I mean, the one thing that I think is irrelevant refutable -- irrefutable with the city is they don't have the time to do it. Unless you think the city is lying to us, and I think that that's one of the things that we had the problem with in October was that I think that people really felt like that there really -- there might be some of that in play. I don't think that there is. The thing that does mean something to me I will say, and I don't mind repeating that in deference to the city is maybe I ought to ask the three of y'all. I know that, john, you told me the other day that if you just looked at these two tracts, forget all the other things about cortana and bull creek. Which in y'all's opinion are you collectively -- maybe I need to ask you each individually, but you told me that you thought that the bull creek side sooit from an environmental standpoint, if you will build this water treatment plant, I think you should build it at bull creek. Is that your opinion?
>> yeah, I'm begging for c as well. But let me tell you that I consider many, many things in addition to the perceived nature of bull creek. We don't want it in bull creek if we could get an alternative site. We don't want it in the prfb, period. Right now I consider all of the regulatory parameters which are in play, which includes the fact that the virio is an endangered species urns the law of this land. There are only 15 known species in the preserve and the use of cortana jeopardizes fully one-third of those. And the only virios the city has within its system at this time. So for me those are doa kind of pieces of information, dead on arrival. When I think about cortana, I'm just having a hard time getting there. It's a great watershed. There are jollyville plateau salamanderrers downstream. There's nobody here that has listened carefully that any species listed under the federal endangered species act will be endangered by that.
>> do you agree with that? All three of you, our staff, is of the opinion that just strictly from an environmental standpoint that bull creek is better than cortana.
>> that's correct.
>> that's pretty impactful. I do -- I do trust the city that they are telling us that they have gone and in their estimation everything that they have looked at that they for some reason have said they can't go there. So maybe the real hard question is is that how we need to be making that decision. What it flies in the face of is 75 to 80% of the people who came to the chapter 26 hearing said if you're going to do one of the two, we'd rather be in cortana. And all of the gray matter that we get into with regards to what I call gray matter, I guess any time you ask an attorney what do you think? I mean, because this they've got an attorney other there that thinks something else, I said are you going to have an answer on this? And it is clear that fish is in a position that they are going to be okay with this permit thing that we would have to ask for, it is also clear to me that there may be some negotiation -- I don't know, john, I take you for your word that there are only 15 sites that have been identified in our microsite area that really has birds. So if that's literally -- I'm looking for a way for us to be able to give a legitimate reason as to why we're not doing this. Because I do not think that the city is as gult wrenched with -- gut wrenched with this situation as we are. They do not want to do this. And what we've got is a situation where -- and we don't have a c. Everybody wants a c. 100% of the October 4th meeting people wanted a c, but we've never been presented with a c. And I do agree that there's no use going through the shenanigans here if we're not going to -- if we legitimately don't think that anybody is -- or we're going to see a movement where we get three people to say, I mean, yay, then I think we owe it to the city -- let's at least have a relationship with the city of Austin. There are too many things we have to do with the city of Austin that we need their help and that they need our help. And that is really what I'm trying to find here. If they're legitimately -- if there legitimately is no place else for them to go and they have got to build, start this water treatment plant, and if you don't think that, okay, I respect anybody's opinion that doesn't really want to think that.
>> the issue is that there is an a and a b. Under chapter 26 if there are two choices and one is not in the preserve, you have to go with the one that's not in the preserve. That's the ca none drum we're at. Conundrum we're at. I want to see from a policy, but from the legal perspective the fact that there's an a or a bfks has me hanging on the horns of the chapter 26 dilemma.
>> we've got two interpretations of 26. We've got the city attorney and we've got our attorney and so it's an impasse. It will be an impasse. Nobody has the trouble or nobody has the time --
>> that's why I think a mediation would really help at that impasse.
>> and you have to recognize that the plain language you do not need to be a lawyer to read the law. The point is the law should be clear from its plain language, and the plain language is no other feasible or prudent alternative. The intent behind that is plain. It doesn't say the best feasible and prudent alternatives, it says no other feasible and prudent alternative. I think that it's plain that the intent to that is once you established a preserve, you cannot start chipping away at it as your circumstances change except in very specific circumstances. And you can look at the bccp and it plainly states -- this is going to be an unpopular position I'm about to state, I know, but I'm going to make it. Irrespective of which is the most environment al sensitive, bull creek or cortana, the purpose of the preserve was to recognize that there is a bunch of environmentally expense active property out there. So in order to make development possible, we will reserve some of that environmentally sensitive property so that you'll be able to get 10-a permits. And the water treatment plant at bull creek was specifically accepted and the area, the bcp was creelted to mitigate for that take. So irrespective of which is more environmentally sensitive, we already fought this fight. A decade ago. To reopen it now is to impugn the integrity of the agreement. I know that sounds like a little of legal ma larky, but it's not. The point of the whole preserve is to lay aside some of this incredibly environmental sensitive property so that we can utilize the remainder for houses, for businesses, and for water treatment plants.
>> but I don't think that motion penal would think that you have the ability to alter something, if it needs to be altered years down the road. And of course, what you have is you have negotiation capabilities here. If we're going to take this, then what is the migation for this.
>> and the mitigation according to the infrastructure corridor provisions in the agreement is five to one for the actual harm. And I don't see -- that takes us to the second prong, the program or project includes all reasonable planning to minimize the harm resulting from the take. That gets us -- that's the second prong which also there are some issues around that prong as well. Because the cortana tract is not inside of an infrastructure corridor. The infrastructure corridor is -- correct me if I'm wrong because you were there during this and I was not, but my understanding is that it was a five to one ratio considered to establish those infrastructure corridors. So if you said you were going to build a water treatment plant inside one of those infrastructure corridors, then the plan tofs find a five to one mitigation for that infrastructure corridor.
>> then we've got two weeks to do that. Judge, I know you want to move on. I am willing to make the motion to set the chapter 26. And two weeks before, if we don't want to go there, then we won't go there.
>> I have never disagreed and I'm not going to disagree with the mitigation. I always think --
>> hold on. There's a motion to schedule a public hearing on February 14th.
>> [overlapping speakers].
>> let's deal with whether or not we scheduled a public hearing on February 14th, which is what the item says basically. Then we'll address if we do that what we'll do in the interim, right? Right?. I second that motion. Some individuals have come down. Any of you plan to give brief comments today? You can see where we're head odd this, where we're trying to go.
>>
>> [inaudible - no mic].
>> you have something new to add. Come forth and please add it briefly. If there's another person who wishes to give brief comments at this time, please come forward.
>> I'll be very brief. My name is bill cura and I'm very familiar with the water treatment plant 4 issue. Currently in the last year and a half I have been working on the jollyville plateau on 183-a as the compliance manager where we have endangered species, karst issues, very similar to the cortana and the bull creek sites. I've had guided tours of -- recent guided tours of the cortana and the bull creek tract and I've had a guided tour by the city of the franklin tract which is down the hill from the bull creek tract. I've seen jollyville salamanders under rocks. They're not hard to find down there. I've drunk the water that comes directly from the bull creek site. I've spoken to some of you on this, tried to talk to the remainder. I've talked to robert pine with u.s. Fish and wildlife service about the minor permit amendment and he assured me that it is a rather administrative matter, not a big hurdle to get over. I've studied the plumber report, the city's analysis of the alternative locations, including research that has come to light subsequent to the original 26 meeting. I'm not privy to the information that was exchanged during the December 18th discussions, but I feel like I'm above average informed on this issue. I strongly urge you to move forward with advertising the chapter 26, the February 14th meeting that you have envisioned, if things go successfully, is going to jam the city for completing their investigation of the cortana tract. They have geotechnical borings that need to be conducted and other investigations that's going to be very difficult to complete before the nesting season begins March first. Based on my -- wrar to ms. Eckhardt's comments about we've got two options a and b, therefore there is a prudent alternative, I would argue that the bull creek is not a prudent alternative, it is the default situation that would have to arise if the cortana tract is not going to be built upon. The city is adamant and they are not going to budge on moving forward with bull creek tract. It's not a prudent location, but neither is shutting off the water to citizen of western Travis County. So when you're considering no water for western Travis County beginning in 2013 or building on bull creek, it goinz look prudent, -- it begins to look prudent, but when you consider bull creek versus cortana, it does not look prudent. The cost factor comes about in the feasible issue. The terri yovment tract, I walked it on Sunday. It has consider ablg issues. It's challenge understand that way. That's why it did not show up as one of the five alternatives that was addressed in the plummer study. I'll just say I do request that the third criteria of the chapter 26 is considerable public -- local public interest in this. I am local public and I'm considerably interested in moving forward with the chapter 26 hearings.
>> were you at the first public hearing in October?
>> I was out of town. I missed that.
>> so you missed out on that one.
>> that's correct.
>> did you get a chance to witness or talk to anybody how that public hearing went? It was basically the same stuff that we're looking at now. Nothing has changed.
>> I believe that things have changed. The level investigation --
>> what I'm saying, according to my staff. I don't really know --
>> I've just heard the county's expert state that they would prefer from an environmentally perspective the bull creek site over the cortana tract. The science advisory committee of the balcones canyon land preserve state that had they would prefer the cortana tract over the bull creek property. These are audubon people. These are people who are bird experts. Also, I would urge you, if you decide to move ahead with the chapter 26 hearings, and it is if is it is ultimately decided to mooch forward with the cortana tract, I would urge to you have that hearing as quickly as possible because of this March 1st deadline for the city to complete their investigations. I think that's all.
>> thank you very much. Yes, sir? Fshs.
>> good morning. Thank you for the opportunity to speak briefly. I was at the October 14th meeting.
>> you were?
>> and I strongly concur with Commissioner Davis' assessment. Nothing has changed in general. And I also have to disagree with the fact that we have a very, very serious time limitation here. The city has been dragging their feet for years looking for a site. I really think that the scare tactic of running out in 2013 is really not a good tactic. If we were to improve the present facilities and introduce some reasonable water conservation measures, I don't think we'll have a tremendous problem. I'm also very much in sympathy with bheem have stated that this is a preserve. A preserve is to be preserved. It should not be a handy land grab situation for anybody who wants to dig it up, mess it up and destroy the creatures that are in there. We are abandoning our responsibility that was placed in our lap when we accepted this preserve. And we still owe it 3,000 more acres. We haven't done that either. So we have been very remiss. And now we want to tear it up for a water treatment plant. It is not reasonable, it is not right. Thank you very much.
>> thank you.
>> sir, tell us your name again.
>> I'm gardener sumner.
>> gardener, tell me, why do you think that fish really considers this to be a minor -- don't you think that they are every bit as vigilant about what they want to happen with the preserve as anyone?
>> fish and wildlife?
>> yes, fish and wildlife. Why do you think that they seem to say this is a minor deal, you could do this? Because all the dealings that I've had with them, which hasn't been a great amount in the four years, but boy, they're pretty hard to move if they think that you're doing something that's not right.
>> I am not familiar with them personally, Commissioner. However, I have a lot more faith in some of the stuz that your -- the studies that your staff has produced. In all fairness in all fairness I must say that there are some state organizations here which I don't think really meet the responsibilities very responsibly. And fish may be one of them. I don't know. All I'm saying is that looking at the fundamental definition of a preserve, it's something that should be preserved. And the reason why we put it there is so that people can build houses all around there, leaving this in protection, in perpetuity. It should not be a place where we can go dig something up every time we teed a piece of free land, and it would be free, much less than buying other land. And it's not right. It's not right for the trees, plants, creatures for which that preserve was given to us. This is our responsibility that we're trying to dig up. That is not right. I don't think it's right. I'm not on the court, but I do appreciate the time that you've given me to talk about this.
>> thank you, mr. Sumner.
>> judge, I'd like to make a substitute motion on the one motion on the floor. My substitute motion would be that we allow and recommend staff to meet with the city of Austin to go through a mediation process for a two-week period, and on the results of that particular meeting with the city of Austin come back to the court and reported to the court and at the time we could set the public hearing based on our findings on that. In other words, what I'm trying to say is if the city's not going to budge with the alternative that may be available to them as far as new sigh that would be out of the preserve, but it wouldn't be taking a fiscal and prudent nature, based on those findings there may not need to be a chapter 26 public hearing if that is actually the evidence that's presented after the staff meet with the city. We won't have to have a chapter 26 if that is the case. I would like to make a substitute motion of the other sites they could consider other than one.
>> staff initiated?
>> yes.
>> and there's a little friction now between city staff and county staff on this issue?
>> we work professionally day in and day out together. You may hear other things that I don't hear. I don't know.
>> there's a substitute motion for staff to initiate mediation with city council, city staff.
>> my understanding of the motion is that we would get a report back before we set the public hearing?
>> yes. And then if we did a report back, if that particular findings are that this particular -- there's another tract, another alternative other than having to bring chapter 26 into play, then we wouldn't need a public hearing on chapter 26 because of the mediation, if there is throos a possibility of bringing alternative tracts to the court out of the bccp altogether, it's not environmentally sensitive and other things.
>> is there a second to the substitute motion? The substitute dies for lack of a second. Is this friendly? That in addition to scheduling a public hearing on February 14th, we put together a list of five or six basic questions based on county staff recommendation to the court, we send those to the powers that be at the city, starting with the city manager and city council, let them get the answer from whoever they wish, get those answers to members of the Commissioners court within 10 days of the questions and then we individually decide whether we wish to meet with city, with city staff to discuss those, that we pit this matter back on the court's agenda two to three weeks before February 14th for us to decide finally whether to proceed with the February 14th meeting or not. Is that friendly?
>> yes. But my -- can I ask a question about it?
>> yes.
>> I don't know that we have that much time, if we're waiting 10 days and then we want to meet three weeks -- we probably have 10 days if we wait two weeks. Effectively what we're giving is a 30-day period.
>> two to three.
>> so February 14th, two weeks before then would be around the first of -- is the 14th a Wednesday? January 31st is on Tuesday?
>> no, the 30th.
>> January 30sth is a Tuesday. So we would have it book the court's agenda. If not the 23rd, then the 30th.
>> then that gives us enough time to still have the 14th.
>> yeah.
>> so my thing really -- what I promised was a second look. So we would do that. But at the same time if we're not going to do it, there's no reason to wait until February 14th and have a lot of residents coming down here?
>> yeah, that's friendly.
>> so judge, your friendly is actually to get the necessary information. Is this similar to maybe what I requested as far as mediation is concerned?
>> I have no problem with mediation too except it should be court initiated.
>> I understand. The comments I got, I got from the city council. I did not get from city staff. But I'm sure city staff talked with not the whole council, but a couple of councilmembers, see what I'm saying? That's why -- and I'm thinking that they're basic questions. We may not like the answers, but I think the city ought to be given the opportunity to say here is our response.
>> I think there are some basic documents as well that would be useful to ask for.
>> is that friendly?
>> that's friendly.
>> I guess my position still remains the same. If the city does not move out of that area as far as the preserve is concerned -- and also the head waters of bull creek. That's water quality there and I've heard folks talk about that area, not only the -- the encroachment on the jollyville plateau salamander, but also the golden cheeked warbler. And I'm very concerned about that. It's just not a good land use in my opinion. But anyway, we're going to go through what we go through. I have never -- I think from the time that I've been on this court, I've never voted against a setting of a public hearing. I don't think that's probably good policy. You always want to hear what somebody else have to say. So I'm not going to vote against this particular motion. But I am going to not support, as I stated before, I'm not going to support the effort of the city's proposing to locate on the cortana, nor to support them locating in the head waters of where bull creek is right now, the bull creek watershed. I'm just not going to do that. So I'll listen to what anybody has to say, but I want to make it perfectly clear, that my position has not changed. Thank you.
>> the friendly basically was intended to describe staff's anticipated to table place over the next two weeks. Any more discussion of the motion? All in favor? That passes by unanimous vote. We'll do that and make it happen. I will get with staff and take a shot at the draft questions over the next few days, get those to members of the Commissioners court. Maybe we ought to get those questions from staff?
>> initiate it how far you wish. Before you send it out, the court should probably come back and vote on those questions next week.
>> I was trying to avoid -- trying to eliminate the need for --
>> if you're going to involve the rest of the court, they believe you will need to put it back on the court's agenda, but if you want the staff to initiate those five or six questions with maybe one or two representatives of the court to help them guide on that, then that's the way to go.
>> I'd very much like to work on that.
>> can we have the court send mr. Kuhl the two or three most important questions, each member, and then mr. Kuhl put together basically in his view the most important five or six? Then meet with a subcommittee of the Commissioners court to refine that list and send that to the city.
>> if the court is delegating mr. Kuhl to make the list of five or six questions, yes, you can do that.
>> all right. And then our precinct two Commissioner and precinct three Commissioner, work with mr. Kuhl. And maybe we'll just post this for -- no, we won't. Next time we post this will be the 23rd or 30th. How's that? Then when the answers get back, we individually decide whether we want to meet with constituent or not. -- with the city or not. It's to the individual. That makes sense to me. Will that work? Now, what about initiating mediation?
>> I think that would be one of my questions.
>> okay.
>> would it be better for the possibility of mediation to be approached separate love through you in order to -- separately through you in order to -- without fear of --
>> [overlapping speakers].
>> I needed to see the mediation aspect of this die. Margaret brought it up, you brought it up. I think there's always another quai to get somewhere with the opportunity to mediate. That's why I made the motion, because of the concern that you guys brought up about mediation baugh bu it died because of a hack of a second. But that doesn't mean the interest is still not there to mediate.
>> the problem is that staff initiated mediation on this issue goes nowhere. But if a member or two of the court were to initiate it with a member of the city council, then we may get somewhere. This is kind of based on my interpretation, evaluation of comments I've received.
>> right. I understand. Commissioner Gomez and she brought it up, so that's why I brought it to the table in the form of a motion.
>> that's part of the framing. If we can make it happen at the higher level, it will require additional steps anyway. So if the council says yes, we would love to mediate this, then you really need to make sure you understand what issue or issues you want to mediate. That would require coming back to the Commissioners court.
>> right, as well as if -- normally in a mediation you would be choosing an independent mediator to help guide the process and that the city and county would want to share in the cost of that mediator as well as identifying who the representatives of the court would be to go to the mediation and what those issues to be mediated would be.
>> so to me it's consistent with this motion to initiate that. My guess is that the city will say we don't have time for that. There are probably preserve-related issues that we may need to go ahead and discuss anyway apart from cortana. This is one of those forever preserves, right? And I don't know that we've ever sat down and said okay, here are the guidelines. We have kind of done our thing, they have done theirs and we've happily been sort of focusing on acquisition and the management and operation here after.
>> and the other purpose from having mediation is to have a win-win situation. I don't want us to say, well, we're the winners. We're the ones who have all of the correct information and correct stance, but I think we need to have a win-win situation because we need to continue working together on other issues.
>> so the mediation aspect of this is being added? Good.
>> it's like doing the tango in east Texas, it takes two people to do it.
>> I think that the court can find out right after lunch whether mediation is even an interest. Either sarah can make a call or I can make a call. And we can bring that -- we'll get that off the table real fast.
>> is the city council meeting today?
>> I don't think it will take the council, Commissioner. I think there are a couple of people that can be called on this and somebody can give you an answer like that and say we're not interested in that, thank you very much.
>> but I thought the intent was for elected officials to deal with that as far as that's concerned.
>> is there a member of the city council that you would like to call?
>> talk.
>> if it's elected official to elected officials, which is what I'm hearing --
>> is that the aspect of the mediation? I don't really know.
>> that's what the friendly was.
>> okay.
>> not to staff.
>> no. We love staff. We're taking you off the hook. It seems to me that if this would happen, it would be --
>> we're not really taking you off the hook.
>> [ laughter ]
>> this motion also includes authorization from purchasing to receive any additional funding necessary to advertise quicker. Anything else?
>> there are a million things I'd love to say, but I'm going to withhold because I know we've taken way too much time.
>> you are wise beyond your years previously, mr. Kuhl. Congratulations again. I ta know you took this off of things to do in '07, but put it on another 30 days.
>> thank you.
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Last Modified:
Wednesday, January 210, 2007 8:14 AM