Travis County Proposed Rule Changes to Chapter 82
Travis County Proposed Rule Changes to Chapter 82
On Tuesday, October 12, 2010, Travis County Commissioners held a public hearing on a proposal to prohibit approving subdivision plats using groundwater from the Trinity Group Aquifers unless a groundwater conservation district (GCD) is in place and that GCD gives permission for the additional groundwater withdrawal. RECA members testified against the moratorium. However, on Tuesday, October 19, 2010, the Travis County Commissioners unanimously approved a one-year moratorium, to expire on October 31, 2011, on new subdivision developments that plan to use groundwater from the Trinity Aquifer in portions of western Travis County, with the understanding that the moratorium could be extended or shortened. The Court instructed staff to develop a charter for a Groundwater Availability Stakeholder Committee appointed by the Court.
The County's Takings Impact Assessment claims that the moratorium does not constitute a "taking." County staff indicated that the County could grant exemptions for conservation subdivisions or applicants who can prove the moratorium would create an undue and unique hardship. A conservation subdivision is a development that includes in its plan the elements of environmental preservation, including a design that includes a rural or nature-oriented lifestyle, open space, protection for sensitive areas, reduced impervious cover, and has the potential to reduce the cost of government services. The code modification would also create a plat note requirement as an enforcement mechanism. A plat note would be required to ensure that the developer would not be able to get a plat approved based on one source of water supply and then change to the Trinity Aquifer as the supply source after the plat is filed.
While the moratorium has been in place, the County has been developing a permanent policy regarding groundwater availability rule changes in the subdivision regulations.
History of the Ground Water Conservation District Issue in Western Travis County
A groundwater conservation district, which regulates groundwater pumping, has not been created for this part of Travis County. During the 81st Regular Legislative Session (2009), a bill was introduced that would have allowed the Barton Springs Edwards Aquifer Conservation District, which controls the groundwater in southern Travis and northern Hays counties, to expand its authority to parts of western Travis County not currently covered by a groundwater district. However, the bill was not considered by either chamber of the Legislature, although it was reported favorably from House Natural Resources committee.
The Texas Commission on Environmental Quality (TCEQ) released a report in August 2010 in which TCEQ Executive Director Mark Vickery proposed that the Hays Trinity Groundwater Conservation District (HTGCD) be dissolved and its former boundaries be incorporated in a new district with jurisdiction over western Comal County, southwestern Travis County, and western Hays County. In September 2010, the HTGCD’s board, by a 4-0 vote, passed a resolution opposing Vickery’s recommendation. However, Commissioners Courts in Travis, Comal, and Hays counties passed resolutions in support of Vickery’s recommendation. The State Office of Administrative Hearings (SOAH) held a public hearing on the TCEQ recommendation on Thursday, October 28, 2010 at the Hays County Courthouse. In December 2010, TCEQ discontinued its efforts to create a new district, although Vickery reiterated his view that a three-county district would best serve the public good. This action does not eliminate the possibility that the Texas Legislature will create the proposed three-county district in the future.
Travis County Groundwater Availability Stakeholder Committee
On Tuesday, March 2, 2011, the Travis County Commissioners approved the following appointments to serve on the Groundwater Availability Stakeholder Committee (GASC).
County Judge Sam Biscoe: Hank Smith, Ann Huthnance, and Jim Linardos
Pct.1 County Commissioner Ron Davis: Kathleen Pitre, Jennifer Walker, and Marcus Gary
Pct.2 County Commissioner Sarah Eckhardt: Raymond Slade, Dr. Robert Kier, and Jody McDaniel
Pct.3 County Commissioner Karen Huber: Madeline Nabers, Jim Dower, and John Dupnik
Pct.4 County Commissioner Margaret Gomez: Barbara Cilley, Ralph Reinhardt, and Wade Wheatly
According to the charter of the GASC, the committee was tasked to review pertinent information regarding the groundwater availability in Travis County including:
- scientific literature relating to the Trinity Aquifers and the Colorado River Alluvial Aquifer;
- information on ways to enhance water availability;
- the groundwater availability requirements found in Travis County's subdivision regulations and the subdivision regulations of surrounding counties; and
- information regarding the water needs of a subdivision for emergency situations including fire-fighting.
The GASC was also tasked to make recommendations to the Commissioners Court for the revision of subdivision rules to protect underground water supplies by June 30, 2011. The timeline included lead time for the initiation of the formal rule making process, at least one public hearing on the rule proposal, and adoption of revised rules by the time the moratorium was set to expire on October 31, 2011.
The GASC met from March 2011 to the end of the summer 2011. In September 2011, County staff released draft proposed new regulations that included many provisions that would impede development, including the following minimum lot size requirements:
- one-acre restriction for lots over the part of the Trinity Aquifer in a Western Watershed or over the Edwards Aquifer Recharge or Contributing Zone (even for subdivisions using surface water)
- five-acre minimum lot size for subdivisions using centralized groundwater system
- six-acre minimum lot size for subdivisions with individual wells
On Tuesday, September 20, 2011, the Travis County Commissioners Court held a public hearing to take comments on the proposal. State Representative Paul Workman (R-Austin), a RECA member, requested that the Court delay passing county regulations until he could draft legislation to establish a Groundwater Conservation District in the next legislative session.
At its Tuesday, September 27, 2011 meeting, the Travis County Commissioners Court instructed staff to hold two public meetings, one in western Travis County and one in eastern Travis County, as well as a work session to try to resolve the issues with the proposed regulations that were raised by development interests. The purpose of these meetings was for staff to share the proposed rule changes with constituents. These meetings were not public hearings where public testimony was accepted.
- The public meeting for western Travis County was held from 6:00 to 9:00 p.m. on Wednesday, October 12, 2011 at the West Service Center located at 4501 RR 620.
- The public meeting for eastern Travis County was held from 6:00 p.m. to 9:00 p.m. on Thursday, October 13, 2011 at East Service Center located at 6011 Blue Bluff Road.
RECA and the Home Builders Association sent a letter to the County Judge and Commissioners expressing concerns about the regulations prior to the Court's Thursday, October 20, 2011 work session at which County staff presented a summary of feedback received at the public meetings.
On October 11, 2011, the Chair of the Committee on Natural Resources in the Texas House of Representatives submitted a request for an Attorney General’s opinion regarding the legal authority of a County Commissioners Court to enact a groundwater management ordinance. The Attorney General’s office has six months to issue an opinion.
At the Thursday, October 20, 2011 work session, Travis County Judge Sam Biscoe told staff that on Tuesday, November 1, 2011, the Court would give them guidance as to which of the recommendations being proposed should go back to the public to be vetted further. He instructed the County staff to then meet with interested parties in small groups to reach optimal consensus on a revised draft. The Court will schedule a formal public hearing during which additional public comment will be received on this new draft.
On Tuesday, October 25, 2011, the Travis County Commissioners voted unanimously to extend the moratorium, which expired on October 31, 2011, until January 31, 2012 in order to allow for more public input before the Court adopts changes to Chapter 82.
On Tuesday, November 15, 2011, staff presented the Court with categories of concerns from the public. Each category had several possible alternatives.
After a brief discussion on possible exemptions for small subdivisions using surface water, Travis County Judge Sam Biscoe directed staff to go back to stakeholders to reach a consensus on all of the items. He further directed staff to bring a new draft to a work session of the Court prior to a public hearing on that draft. Judge Biscoe expressed a desire to hold that public hearing before Christmas.
On Wednesday, November 30, 2011, the Travis County Groundwater Availability Stakeholder Group met to consider revisions to a draft recommendation for new subdivision regulations regarding groundwater availability. At that meeting, the group was able to come to consensus on several issues for which RECA and the Home Builders Association (HBA) of Greater Austin had advocated pertaining to requirements for a Groundwater Availability Certification. There are still some regulations that representatives from RECA and HBA are working to get deleted from the staff-recommended final proposed rule change to Chapter 82. These include issues regarding criteria for small subdivision exemptions and references to minimum lot requirements for subdivisions that use surface water rather than groundwater.
A revised draft of the rule changes was released January 20, 2012. Following the release, a public hearing was held on Tuesday, January 24, 2012. RECA testified against the section of the revised draft rule change that applies impervious cover limitations to developments planning to use surface water. Specifically, RECA concurs with the Texas Association of Builders’ amicus brief stating that Travis County does not have the legal authority to enact this portion of the proposed rule change. After the public hearing, the Commissioners took up the issue privately in executive session.
On Tuesday, January 31, 2012, the Travis County Commissioners Court voted unanimously to adopt the latest version of the rule change, dated January 20, 2012, as it was presented at the public hearing on January 24, 2012. RECA staff testified against the section of the rule which includes limitations on impervious cover for subdivisions using surface water. The new rule takes effect immediately. The moratorium on development in this portion of western Travis County also expired on Tuesday, January 31, 2012.
Judge Sam Biscoe instructed staff to come back to Court in one year to report on the impact of the rule change on development and on the aquifer.
Below are some highlights of the new requirements.
Certification of Groundwater Availability
Subdivisions relying on groundwater from the Trinity and Edwards Aquifer will be required to produce a Certification of Groundwater Availability in order to receive project approval. This document should include;
- the results of a walking survey around the perimeter of the subdivision and along adjacent public roads to identify all groundwater wells within 1,000 feet of the subdivision boundary;
- a list of the record owners of land within 1,000 feet of the subdivision boundary and proof that the applicant delivered to each a County-approved questionnaire regarding groundwater wells; and
- all information on groundwater wells within the subdivision and within 1,000 feet of its boundary contained in public records.
Preliminary plans and plats shall specify the layout of lots and the GPS coordinates for all wells supplying the subdivision. A well in the subdivision may not be located within 150 feet of the subdivision boundary without the consent of the adjoining landowner.
Owners of residential subdivisions with 15 or more units and owners of commercial subdivisions that will use more than 100,000 gallons per month will be required to install County-approved water-level monitoring equipment on one of the wells and dedicate the equipment and an easement to the County to monitor. This Certificate of Groundwater Availability also includes regulatory requirements regarding test wells.
Amenity Ponds
There is a section of the new rule dedicated to the use of groundwater for common area features. Use of amenity ponds are restricted to no more than two-acre feet for a single pond. The subdivision may not have a cumulative total of six acre-feet for amenity ponds. Furthermore, all drought contingency plans should include disabling amenity water features with the first round of water restrictions.
Exemptions
A subdivision of five or fewer residential lots averaging two or more acres per lot is exempt if;
- the owner has an agreement with a water provider to bring in surface water;
- the drilling of more than one well on each lot is prohibited by the County;
- a rainwater harvesting system providing storage of at least 2,500 gallons of potable or non-potable water is installed on each lot when a structure is erected there;
- further subdivisions of lots is prohibited five years following the filing of the plat; and
- the use of groundwater from a well in the subdivision to supply land outside the subdivision is prohibited, except in the event of a fire.
Development Intensity (This section was opposed by RECA; it applies to projects using surface water and groundwater.)
Subdivisions located over the part of the Trinity Aquifer in a Western Watershed or over the Edwards Aquifer Recharge or Contributing Zone must comply as follows:
- impervious cover in a commercial subdivision shall not exceed 45 percent unless the primary driveway access is on a state road or complies with alternate standards;
- impervious cover in residential subdivisions shall not exceed 30 percent, except if the total number of lots does not exceed the number of acres in the subdivision or if the subdivision includes a conservation area that meets development requirements in the Conservation Area section of the Code.
Development Intensity for residential subdivisions using groundwater
- Subdivisions supplied by individual wells shall have a minimum lot size of five acres.
- Subdivisions using a centralized groundwater system shall have minimum lot size of three acres and the total number of lots should not exceed the number of acres in the subdivision divided by four.
Master Development Plans
The owner of land may file a master development plan that sets out phases of development for which different preliminary plan or final plat applications will be filed and that calculates development intensity based on total acreage in the master development plan.
NEW Proposed Changes to Chapter 82 (January 20, 2012)
SUPERCEDED Proposed Changes to Chapter 82 (January 10, 2012)
Map of Trinity Aquifer Area in Travis County
Water Availability Policy Questions (November 15, 2011)
Draft Regulations (September 6, 2011)
Request for an Attorney General’s opinion (October 11, 2011)
