Travis County Commissioners Court
July 19, 2005
Item 21
21 is to receive briefing on interim rules on water quality, the environment and procedures for review of applications submitted under chapter 82, Travis County code, standards for construction of streets and drainage in subdivisions. We have been advised that we do not need the legislative item today, and that is item number 29. So 29 we don't need today, we'll have it back on next week.
>> correct.
>> as a post-special session item in case we need it. And back to 21, though. Joe? And anna?
>> judge, is it logical that this is our last item before the lunch break?
>> makes sense to me.
>> I don't want to have unrealistic expectations of people.
>> I don't see anybody who is here on...
>> okay. Thank you.
>> all right. We have before you again the interim rules, interim subdivision rules that apply to the area outside the extra territorial jurisdiction. These rules again were drafted many months ago, came back to the court. We have since been seeking and receiving testimony and input from various stakeholders that are affected by the rules. And so what i'd like to do today is just kind of step through what modifications are changed since the last time we had these before the Commissioners court. I知 just going to go through them in the sequence which they are found within the interim rule. The first section is 82102.
>> I have a stack of documents before me. There's one that we should pay special attention to when you make your presentation? Is that a side by side comparison?
>> you have a July 14th memorandum. You have the interim rule that's been drafted with those changes and then you have the side by side comparison which is like a spreadsheet.
>> should I look at all three while you speak?
>> i'll be speaking from the memorandum.
>> okay.
>> the the first section is 82.102. And this regards the fair notice requirement, which is actually a new provision of state law heretofore undefined, and so we're trying to implement the most recent laws that have been passed by the session of the legislature regarding to fair notice. And what we have done is put a provision in the interim rule. Again, this applies to the area outside the e.t.j. County wide and we decide what fair notice is in the rule. We have actually used an he will lement that was in our -- element in our original subdivision guide guidelines, it was a master provision, and it's an option basically to the developer to tell us exactly what is the concept for the development that is bringing forward. So fair notice can be many things to many people. And what we're trying to do in this interim rule is somewhat defined for us, Travis County, what fair notice ought to represent when they bring that forward. So we have that, we have the provisions in there, which includes a master plan that would basically define the boundaries of the development, the name of what the subdivision is going to be, the location with the street layout, general arrangements and designations of the land uses within the plan, approximate location of the 25-year floodplain and the 100-year floodplain and the proposed location of drainage courses and any necessary off site extensions. This is an idea of what type of development they're expecting to put on the property. It helps us get a better view of what exactly is coming forward with preliminary compliance and subdivision plans. So that is a new requirement that heretofore Travis County has not had in terms of a fair notice requirement. The next item is the requirement for the utilities service on the preliminary plan. As you may recall, there is some issue with the fact that we are requiring a resolution from the governing body of the utility provider to assure the county that adequate water and wastewater service of the available to serve the development. Certain stakeholders felt that the level of commitment was extremely high for that period -- for the preliminary plan. That the fear was that when you went to a utility provider to get something from the board of directors, that the board of directors of utilities would in turn insist that the developer pay fees to reserve the capacity in their system and that that was basically requiring the developer to put down millions of dollars of investment premature to the need. That was not the intent of the original rule. And we want assurances that the capacity that the utilities would be there to serve the development, but we certainly were not requiring or expecting the development community to have to pay money to get those kind of assurances. So we have changed that requirement. And I guess the best way to look at an equivalent is when we now have a provision in our subdivision regulations that require a phasing agreement, when someone comes in with a parent tract we know they're not going to develop the entire parent tract at one time, but what the county wants is some idea of what the sequence of events are going to be and when certain things are going to be required. So in that case it's -- for instance, someone comes in with a -- it may be a 500-acre tract. We expect that that will be developed out over perhaps a five to 10-year period of time. We know that from our perspective when that parent tract is developed, they're going to need certain infrastructure. And so we're basically getting a sense for the timing of when that infrastructure is going to be put in place, what the county's requirements are going to be of the developer when those trigger points occur. And we've brought before the courtney number of time these phasing agreements which kind of lay out the overall sequence of the phased development of the tract. That is more akin to what we are trying to accomplish with the utility provision, so we've kind of modeled our requirement off that. We're looking for certification from the utility provider, and we did use the -- didn't use the word agreement because the word agreement in some quarter may signify contract, and we're not raising it to the level of a contract, but we do want the chief executive officer or his designated engineer to be able to give some form of certification, and it also requires to some extent the developer to understand on the other side what is going to be required to get those utilities. So we're wanting the utility provider to say, look, we do have the capacity or we don't have the capacity. It's going to require us to do these things to get the capacity to this subdivision, and we're going to be able to do that in this sequence of time, given certain terms and conditions. So basically what we want the utility service to lay out for us what has to happen in order to get utility service to this development.
>> you believe the utility companies can do this?
>> we certainly hope they can.
>> and they have not indicated to us that they cannot? That's my way of asking, have we gone to one or two utility companies to test the reasonableness of this requirement?
>> I have spoken with one utility and have spoken with several development developers who are on the other side of the table in those negotiations.
>> and they said?
>> I think at this point the way we have it is a reasonable request.
>> they said yes, this can be done?
>> I think, yes, that's probably the answer. I think you will get varied answers on that question, but from --
>> that was a softball, joe. [ laughter ] all right.
>> i've learned not to answer in black and white terms because there's always a range of opinions on these topics.
>> why don't we take it up a noach from where we are right now, which is the ability to put it on a cocktail napkin when it comes to utility service. It's more than where we are right now, but it's not an unreasonable burden that you literally have to have your plans out there for somebody to say yes, we're ready to go and here's the service that I need. It's raising the bar.
>> it does give us some specific information with regard to the water and wastewater service. It also gives us an executive level of intent both on the part of the developer and the utility that they will follow through on. And we do -- these things firm up as we go through preliminary and then ultimately final. When we get to final, we're probably at that point looking for a contract between these same parties that we've already seen in some general terms at the preliminary phase.
>> it also addresses our experience up to now with subdivisions and the ciens of issues -- the kinds of issues that they call us about. And sometimes we're not in the position to help because what do you retrofit? And so -- but I think this is also our experience. Aren't we kind of relying on our experience in the past and how we maybe want to prevent some issues?
>> we are. And we're also looking forward toward the capacity of some of these utilities to provide service to development. This could become an issue in certain service areas, and we want to make sure that those issues are front and center as we're approving development in Travis County.
>> but it's horrible trying to react to someone's call and say we need the utilities, we don't have water or we don't have the wastewater or septic and having to go through all of that. And it's -- it's not a good feeling as a Commissioner to have to react to people and say I can't do anything for you.
>> these are capital intensive projects to increase capacity or treatment capacity and I知 a taking an eastern perspective here in terms of subdivision going on on the east side and there are serious capacity issues they have there and they can't just snap their fingers and say oh, we've created capacity. The Pflugerville project to bring water up from the colorado river is one that has taken about three to five years, and it's still not complete. So they're getting there, but you can't just snap your fingers and say, magic capacity is here.
>> I agree with that and I think the number of the lue's and a lot of other stuff ought to be determined right up front. And if you've got the capacity to serve the lue's in a subdivision, fine, but I think it need -- I think there needs to be that acknowledgment that is echoed by the utility along with the developer. There has to be a marriage in that, in my opinion, and from what I知 hearing, they're basically in agreement with you. So the number of lue's has to be served adequately within that subdivision.
>> and actually, she is dealing with water quality and the environment going through section 82209. As you may recall, the buffer from the bluffs and the canyon rim rock to some extent quite a bit as I recall the last time this came before the court. The initial draft had 1250-foot set back from bluffs and rim rocks, and as we received more and more testimony from various not only developers, but the environmental community, realize that the 150 feet was probably way beyond what we needed to do to protect water quality on the creeks and the bluffs. So we moved that back to 50-foot. Now 50-foot still doesn't have agreement with the landowners along the pedernales river. And we understand that. We understand there are some trade-offs between the economic value of the land because of the set back and then the water quality issue. So there's probably good reasons to go one way or the other, but it's not -- you are truly juggling those two interests on this particular -- with that understanding we have a provision in the rule currently that the setback on the -- the buffer on the bluffs could go as low as 25 feet under certain conditions. And again, it seems like the principle driving this seems like the time it takes for the water to run from that piece of property to the creek. Of course, the more buffer you have, the longer it takes, the more likely that the water would be blensed by the over land flow. But a lot has to do with the slope that that runoff is going, how quickly that water is running and the nature of the vegetation has running across? And so we moved it back to 25-foot. If it is a managed buffer in such a way that you have native grass plantings in the buffer, so you improve the quality, then you could probably get by with less buffer. So there may be things that a developer could do to cleanse the water before it hits the water. All I知 saying is there's any number of variables that could come to play. And perhaps before us is not in full agreement with everyone. We're trying to strike a balance between the economic viability of the property and what the landowners can do with it and also make sure that we have good water quality as well.
>> you're on a roll and I don't want to really stop you when you're on that roll, but on the 25-foot buffer exception where we really split it in half whereas before the buffer area of 50 feet -- down to 50 feet as far as the bluff is concerned, that's been broken down into 25 feet under certain conditions before the runoff or whatever runs into the creek bed. Can you tell me what conditions that is predicated on, the 25-foot? In other words, a person can come right up to the 25-foot barrier and what kind of conditions will allow a 25-foot buffer as opposed to a 50-foot buffer and not have the encroachment to make sure that the runoff goes into the creek, have an opportunity to run on the surface before it goes over into the creek? Can you tell me what kind of conditions there would be setting on the 25-foot?
>> yeah. The clearest thing that comes to mind is right now the natural ground in most of the areas we're talking about is probably sparsely grassed limestone. And so what you're probably talking about there is some improvement of the grass that is in that 25-foot buffer. And the environmental representatives said we're not trying to encourage the importing of soil and bermuda grass and not native spees sis of grasses, but we are talking about improved native grasses in the 25-foot buffer. So actually, to improve the native turf in the 25-foot, that would basically reflect the principle that we're trying to accomplish is if it's just going to be what it is, sparsely populated, sparsely covered limestone, then we may very well need the 50-foot. But if there's in the management of that foot you can get more grass plantings, then you could lower it down to 25. So we're either trying to reduce the volume of water that's coming across that buffer strip or improve the buffer strip itself.
>> okay. Thank you.
>> we're not talking just any grasses, we're talking native grass.
>> native grass.
>> yes, that's clearly what the -- our experts are recommending.
>> okay.
>> joe, walk me through one more thing because I thought in our briefing that there was yet a third opportunity as well because let's just say that somebody wants to just purchase right there on the bluff. Will there be yet a third opportunity -- I thought we had discussed this -- if somebody could figure out a way to engineer that, but the water quality would need to occur elsewhere on the parent tract, say behind it as opposed to -- because of the spacing? What happened to that?
>> we're open to all that, but I think the comment that I remember on that was that it's going to be very difficult to make the water run backwards to do that. I mean, the natural slope is going to be headed towards the pedernales. And this is specifically a pedernales river issue. So we're dealing with large land holdings right now that are clearly undeveloped, and most of the bluffs are along that pedernales river stretch. It's almost a special circumstance that you -- that we will probably grapple with even more as we move into the final rule because we are still learning the science and learning how it applies in this particular area. All right. The next area is the buffer zones. We got extensive comments on the fact that what we were proposing in western Travis County does not fit eastern Travis County. Again, we started this process out of the southwest growth dialogue, so we were clearly focused on getting some interim water quality provisions in western Travis County. When they migrated county wide, they just did not fit, and so -- that was clearly made evident to us as we talked to many more stakeholders. So what we have at this point is that redefinition of what a watershed is east and west of Travis County have a different definition in eastern Travis County than you do in western Travis County. And it just purely reflects the geology and the topography that you have. You have steep slopes, narrow canyons in western Travis County. You have level, broad floodplains in eastern Travis County. So I think what we're trying to do is acknowledge the fact that the areas are different. And so we first redefined what we mean by the size of the water area, the watershed area. The buffers are then defined in terms of the minimum and maximum areas that have to be set back from the creeks in those watersheds. We have also used in terms of permanent post construction treatment, we have used the city of Austin's standard that we use within the extraterritorial jurisdiction, we have used that for the area outside the e.t.j. In eastern Travis County, which really is a standard for erosion, sedimentation control. And we felt that that was probably a fairer application of water quality standards in eastern Travis County than the ones that we were trying to use in western Travis County. But again, all of these I think I should probably make a blanket statement that we are importing from existing regulations that are available to us. Not that we haven't gone beyond in some cases, but we're not trying to totally reinvent the wheel here because these are interim rules. And so we're trying to get something in place quickly so we've borrowed from other existing standards and tried to make it fit. So if they're not perfect, we'll admit to that, they're not perfect. They're interim, they're trying to find us an interim solution, while we're still talking through what we're going to do in the final.
>> on page 11 if you're looking at the legislative version of this, this is a question that came consistently in all the meetings that I had on this. Under the b section when you're talking about what the boundaries of the buffer zone are, a lot of language is included there that said not less than, but not more than. And the question that kept coming up is the asterick, should I be asking is that because of the east thing? Because questions were being raised about whether that was really to cover what the very -- cover the very different geology of east versus west because it says and means different things to people on the west side, and is that provision being there simply because of the east side and having the same regulation and the knot to exceeds? That question consistently came up, is that an east thing?
>> in the June draft we had put the maximum because it almost was easier to apply because you would be dealing with the minimums or the floodplain. But then once we started looking at this just wasn't western Travis County, it was eastern Travis County, that's when we decided to put the maximums back in. Now, there's some discussion on the working group about when that got decided to be included back into this, but that's why we decided to put the maximums back in was because of the difference in topography and because of the eastern and the western Travis County being so diverse.
>> and that was also a consistent question I was being asked by folks that really are east people and don't do anything out in the west in terms of how are you going to accommodate the fact that it's so flat in terms of how the floodplain is that literally a floodplain can take out an entire piece of property. Thank you.
>> it's a larger drainage area in that regard because it is flat. In order to give -- under the old way you had less drainage areas, and by having less drainage area you had less areas to develop. And you had -- and the buffer, in the actual buffer zone became an impediment, a hardship because of the restriction of the drainage area. Now the drainage area has been increased, and Commissioner Sonleitner is correct as far as east is concerned with the larger drainage area, of course rtion then you have more area to work with as far as dealing with the -- as far as the waterways as far as your buffer area. So it is a comparison there west versus east as far as the geology and the flat and the larger floodplain areas that it is on the east side, east of i-35.
>> but I think that's why the eastern side is related to the western side, but development that occurs upstream will have an impact on downstream, and then when it gets over to the eastern side, it flattens out and does have a larger floodplain and floodway. And so I知 glad this is in. And because the relationship, while they may be different, the relationship is there between the eastern and western Travis County in terms of development, and so I知 glad that y'all addressed that. The other thing is when we use the city of Austin water quality standards in eastern Travis County, is that because they are greater than what we -- than what Travis County would have?
>> no, I think it's just what we heard is let's not create yet another standard. We're familiar with what the city is doing, seems to be satisfactory within the e.t.j. Why not just use that? So it's basically just keeping some commonality between the jurisdictions.
>> we heard that from several different stakeholders to build off of that, but going back just very briefly to the maximum and minimum. When we first started this in March we had a maximum and minimum and then we took the maximum out. It was only very recently that we put the maximum back in, and you may hear from different panel members that, hey, when did that happen? I want to make y'all aware.
>> so that was put back in?
>> it was to accommodate the differences between the eastern and western sides to be sure that the buffers -- the buffers were appropriately sized -- they were functioned to do what they were designed to function.
>> we think it's better with the maximums back in?
>> yes, sir.
>> while we're still on buffers, and I知 on page 12 right now, one of the questions that came up yesterday in one of my meetings had to do with what kinds of activities could occur within the buffer zones, and there was a reference to golf courses and the lack of specificity -- I知 learning how to say that word -- related to a program of fertilizer, pesticide and herbicide use. Who's going to make that judgment that that was an appropriate program, and do we have any kind of reference that we throw at people to say the standard is the city of Austin, the standard is lcra, the standard is u.s. Fish and wildlife? It's just a question that it seemed rather open-ended as to who would make that call and whether there was some standard or best practices or whatever that we could refer people to as to what our expectations were. Did I get that right, brad? Thanks. Do we have an answer?
>> the quick answer is question. As joe pointed out, all of the regulations have their origin in some other set of regulations, whether city of Austin, lcra, city of Lakeway, joint, city-Travis County code with the e.t.j. And all of those existing regulations have with them a technical criteria manual. The lcra has their man wal, their regulations, and the city has their technical criteria manuals for all their regulations. So where we borrowed from the city of Austin we say the technical criteria for implementing this regulation is found in the city of Austin's technical criteria manual. So in the integrated pest management plan you're talking about for the ghost course that's where you would go. You would go to the city of Austin environmental criteria manual, and they do have criteria for integrated pest management.
>> on the one development I had the conversation with that had to do with u.s. Fish and wildlife, they were the one that had to sign off on the pesticide management, the spanish oaks subdivision.
>> the last comment I have is on the cut and fill requirement. This again we have imported from the city of Lakeway, which has a maximum limit of cut and fill balance of six feet. And we discussed that at length as well that there was a range of four feet, six feet, eight feet. There didn't seem to be any particular management with regard to the difference between six-foot and eight foot. We did hear that the city of Austin anyway grants variances routinely to eight feet because the six-foot is so difficult to meet, and so we went with the eight foot in this final draft. Also the cut and fill requirements does not apply to the streets and right-of-way because of the trade-offs between the design of the roadway and the safety of that, and also that the cut and fill. So we have an eight-foot limit, but no limit within the utility corridors and railroad right-of-way.
>> did we specifically say that related to the exemption related to the roads, joe? Does it specifically say that or am I just reading it someplace else?
>> I think it specifically says that.
>> the page 13, line 19 --
>> got it. Thank you.
>> what's the reason for that? I understand the safety, but is there a more specific explanation of that?
>> well, yes. You have a horizontal and vertical geometry you have to meet for road construction. A lot of it has to do with site distances. Basically it's the hilliness and the curvature of the roadway. So if you -- in order to fit -- and then quite frankly, the straighter the road, the safer it's going to be. That conflicts with the topography. You try to put a straight road on top of a hill, you've got a problem almost immediately with cut and fill because you're going to have to cut something in order to keep it from being too hilly or too curvy. So there are limits. There are some basic standards that we've accounted that are going to require a developer to build those roads so that they're not too hilly and too curvy. And when we do that with our left-hand and then our right hand we say you can't have a cut and fill greater than this, basically we have them in a bind, that you can't get roads to serve the area. So we're saying with that understanding, because basically we told them in favor of safe roads over the cut and fill requirement.
>> okay. Thank you.
>> there are probably maybe half a dozen other lesser issues, and I won't go into highlighting here, tweaks to the language so that it was more clear to those readers who may not have satisfied everyone in the process of doing those, but we hope that this is at least something that we can live with for a period of time, and we won't get into a lot of conflicts of interpretation, but that's yet to be seen. At least from the spirit that we're taking this in, we're usually agreeable to sitting down with applicant and finding out what the particular problem is. I think we've left ourselves enough room in this draft to give the executive manager some discretion of making those judgment calls when they come up. And we're not going to be arbitrary and capricious when we go to interpret this. We have a few people on our staff that will be making those judgment calls, and we're -- I promise that we will not have to be -- that we will not try to be black and white about this and listen to the applicants when they come in.
>> still, I think an issue that I知 not saying it hasn't been addressed, that we still need to get some clarity in, and that is the maintenance of any type of water quality pond versus impervious cover. They both are one and the same, but do you have to go with one of them and then who will actually bear the cost of those kind of things? And I know that those are some things that I think may need to be laid out. I know these are basically interim, but before we go into final permanent rules, I think it's something that really needs to be focused on and hashed out because water quality I think is experience for folks on one side of the city ought to be experienced on the other side of the city. We've got kids that play in our creeks and stuff like that, so it is a big deal as far as water quality on the east side than it is on the west side. And of course, how do we get there? I think some of these proposals that we're looking at now as far as interim rules, there's one way to get there, but it appears that the owner is responsible for maintaining that. And I want to make sure that doesn't come up under the auspices of an hoa if they're going to deal with water quality ponds, that it's something that's done, but whapses if it's not -- what happens if it's not an hoa? Let's just say it's a subdivision that's built. Who is going to go and maintain that stuff? I really am really, really serious and need to know where we are on that. And also if we may need to look at the possibility if they're going to -- if that's going to be an issue of not doing this, then the only other avenue available is impervious cover in my opinion. So again, that is something I think still need to be laid out on the table, might not be as popular, but I think it's still a fact. And so since it is a fact, the water quality is definitely a fact and should be addressed on the east side just a is it is. And when you have folks down here crowding up this courtroom and anywhere else speaking about water quality on the west side of ih-35, we want the same equal treatment on the east side of the city. East of 35 in the area out there. So it seems to me that we need to have some type of encroachment into a solution for that, and just need to do what we need to do. So I want to make sure that's still on the table and I see what we have laid out here as far as whose responsibility it is on the water quality issue. So with the sedimentation, filtration, all those kinds of things, who is going to get out the sediment. There's a bunch of stuff still out there. I want to make sure it's a part of what we're doing and where we need to go. Thank you.
>> and joe, you are fair and not arbitrary and not capricious, but where in here is it that says, but if I still disagree with mr. Gieselman I have an opportunity to take this to a higher place? I知 going tack-back to page 5 talking about the preliminary plan. Some of the things we took out of there had to do with an executive manager's decision may be appealed to the Commissioners court. What have we put back in here in terms of somebody disagreeing with joe, and I知 back on page 3, about him approving or disapproving of the final plat application? Help me walk through, how does that get appealed to the full Commissioners court or full district court? That's the deal? Because we normally have one more layer of appeal, and I don't see that written back in.
>> well, the provision you're referring to is an appeal of the executive manager's decision not to grant a waiver to the suspension on preliminary plans. And so since the suspension of preliminary plans until July 31st is being taken out, that particular appeal is being taken out with it. That's all that's going on out there. All that interdelineation there is repealing the timeout on preliminary.
>> all right.
>> but then in terms of let's just then go to the heart of the question. If somebody disagrees with the assessment of the professional staff at tnr, will they have the ability through the interim rules to take their appeal to the Commissioners court for consideration of the hardship?
>> as long as the five of y'all are willing to let them speak when their preliminary plan comes on the agenda, they have that opportunity.
>> or any of the three of us?
>> or any three of you. Probably any one of you. [ laughter ]
>> now, some residents may have come down today to address us on this issue. Now is their opportunity. Please come forward. And if you would give us your name, we would be happy to get your comments. Joe, you may want to slide down to the end there just in case we need you to respond to some of these comments. We have one taker. Anybody else? Three, four chairs available. Four chairs available and approaching the noon hour. Yes, sir. If you would hand them to tom there, he will pass them down for you.
>> my name is brad rockwell. I知 here on behalf of the save our springs alliance. I知 glad to be here and I知 very glad that y'all are considering these interim rules today. My comments will be very preliminary because I haven't had a lot of time to examine the rules, proposed rules, and our water quality engineer, lauren ross, is in europe and has not had a chance to review any of these rules. So my comments will be based on a preliminary examination and hopefully not based on a misreading or misunderstanding of them based on the rapidity of which some of these rules have come out. We do hope that you will adopt some form of interim rules fairly quickly, and we also hope that you will adopt more permanent rules by December or so of this year. One of the questions we have, and hopefully we can get some information about this too is what's the scope and magnitude of what's been grandfathered out there already and will not have to be subject to the interim rules? And i'd like you to remember that whatever you adopt as an interim rule, there will certainly be many development applications following those that will be grandfathered into these interim rules no matter what ultimately is adopted as permanent rules. The first comment i'd like to make is that to some extent the interim rules fail to make a distinction between based on geographical differences in the different parts of Travis County. The karst he did wards aquifer is the most subject to pollution aquifer in the entire state of Texas, so there may be some very of differences that would be needed there, and I知 thinking particularly in some of the buffer and set back requirements that are proposed. And there was some discussion on that earlier that the floodplain issues in eastern Travis County may be different than in western Travis County, and there may be a very good reason to treat them differently. And because the -- our mission for save our springs alliance is focused on the edward's aquifer and particularly the southern edward's aquifer, many of my comments other than this initial one will not go to issues in eastern Travis County where we don't necessarily have any particular expertise or background in dealing with some of the water quality issues in that part of Travis County. One thing that's noticeably missing from these interim regulations are impervious cover restrictions for the barton springs watershed. Almost every jurisdiction that I知 aware of that's considered water quality protection includes some form of impervious cover restrictions. The regional planning process centered in dripping springs, but was participated in by people from Travis County, recommended and included impervious cover restrictions, city of Austin, city of Sunset Valley, city of buda, all deal with impervious cover restrictions and recognize them as an indispensable component of water quality protection. And there's really no substitute. Commissioner Davis' comments earlier today I think were very apt in that I think one of the benefits to a governing jurisdiction for impervious cover restrictions is that they're much less expensive and workable than, for example, trying to protect water quality with engineered controls. Because as Commissioner Davis mentioned, when you have a mechanical, engineered control system set up, things invariably go wrong. I've served as city of Austin for Sunset Valley and dealt with water quality controls that were under Sunset Valley's jurisdiction. We've got an s.o.s. Experience a lot with engineering controls throughout the region. They almost never work. They're almost always broken in some way. And no jurisdiction that I知 aware of is able to do an adequate job of monitoring and regulating these water quality controls so that they actually work as designed. And it would be a very expensive proposition to regulate them and monitor them in a way to make them actually work.
>> do you have any cost figures in your experience as far as what it really would cost to maintain? Do you know about the aspect of that operation of that pond has taken place in the flood detention pond or whatever. The actual cost on that -- because I hear very expensive, I hear very expensive, I hear very expensive to maintain these things, and I guess I know impervious cover is cheaper, but what is the actual cost in your experience?
>> yeah. I think the actual cost is unknown because nobody's done it. And I know the city of Austin's budget for watershed protection is about six million dollars a year. And they don't come close to having the staffing to monitor all these systems, so we're talking about something that is very expensive and we don't know the ultimate cost because nobody's been willing to pony up the money to do it.
>> okay. Thank you.
>> so to the extent that you are relying on water quality controls exclusively instead of impervious cover restrictions, not exclusively, but primarily instead of impervious cover restrictions, you're potentially imposing some significant annual staffing and administrative costs to actually make them work as they're designed. One of the things -- one of the things in the interim regulations is you're primarily relying on setbacks and engineered water quality controls, and I think there's some important dwirkt sis in -- deficiencies in the regulations regarding both of those that I would like to comment on briefly and that are in your paper too that i've given you. There's some restrictions on development activities in the 100 year floodplain, but those restrictions are lessened or there's a maximum, as we've talked about before, so that it would allow -- depending on how wide the floodplain is under many circumstances, it would allow development in the 100 year floodplain. And this would include -- my understanding is that would allow people, for example, to put septic symptoms in the -- systems in the floodplain. And to the extent that you are allowing development in floodplains, you really are defeating any water quality protection purposes that would be served by that. So we would recommend that that kind of loophole that would allow people to develop in the floodplains, at least in the barton springs watershed, that it be limited. There may be good reason in eastern Travis County to allow some sort of limited development of the floodplains because of the less sensitive nature of eastern Travis County watershed and aquifer. There's a complete exemption to waterway buffers for golf courses. In other words, under these regulations, golf courses can be built up to or perhaps through a creek or waterway. There's really no justification for this? Golf courses are one of the most significant courses of pollution in the barton springs watershed. Golf courses originated in climates like england. In our climate they need a lot of help to survive, and that help comes in the form of extensive water use, a lot of times they're used as drainage fields for wastewater systems. They always rely on nienl based -- nitrogen based fertilizers and pesticides. And for these reasons they are perennial problems in the watershed. And I would urge you to eliminate the exemption for buffer zones applying to golf courses and ensure the same setbacks that are applied to every other type of development would apply to golf courses. Again, this is in the barton springs watershed I知 talking about. Can I go back to the septic systems within a floodplain? What does tceq say about that and isn't the answer yes you can?
>> tceq allows it. And basically they're not really allowed -- you're not really allowed to write your own rules about regulating septic tanks. Tceq is the sole authority in the state. And since their rules allow it, basically unless you go through their process of getting a special change to your local rules blessed by tceq, you've got to issue a permit for it.
>> I always hark enback and remember when I was a lake Commissioner, the bathrooms out at hippie hollow and windy point go underwater when the lake comes up, so unless we were to put those bathrooms, our own county public bathrooms way out of the floodplain, we can't even have our own amenities at our own public places. So it sounds goofy, brad, but that's state law that says you can do that.
>> well, but y'all don't need to compound the problem by allowing various kinds of development in the floodplain. I mean, there's really no reason to allow that in the barton springs watershed. To the extent you have control over it through the subdivision process and your regulations. There's some setbacks on point recharge features that are found in the regulations, and those setbacks are very important because recharge is how the aquifer gets replenished. But again, there's some loopholes that are problematic. The largest -- there's a limitation on how big the setback can be for the largest recharge features, and that's a maximum of 300 feet. And again, this really is illogical from a water quality perspective. The largest recharge features are the ones you're going to want the most protection, so if the catchment basin for the recharge feature happens to be larger, you don't want to cut into that because there's a particularly large and important recharge feature. So it would be better to change the setback to the catchment basin as it is in your regulations and eliminate the maximum, the 300 feet maximum and just have it in all circumstances be equivalent to the catchment basin. Another loophole would allow an exemption for yards in in a catchment feature. Yards are not a significant source of pollution as golf courses, but still yards, landscaped yards tend to be sources of nitrogen and pesticide pollution. And it would be better to include them with all other setbacks rather than creating a loophole for them. Now -- I have a few comments about the water quality controls.
>>
>> [one moment, please, for change in captioners]
>>
>> ...in the standards that are in for water quality controls. The way I read the regulations, it allows, what you have is ways line levels, which is fairly small in undeveloped states, you have huge orders of magazine tiewdz of increases in pollutions including things like lead and heavy metals that occur with development. What your rules do, is they allow, depending on the slopes, the 30% or 10% of the increase in pollutions to go totally untreated. So for example in a commercial site where there's 40% impervious cover, you typically see total suspended solids increased by over 2,000%. Huge increases. So at the water quality control were designed to only catch 70% of this increase, it would allow a minimum, if everything is working perfectly on the water quality controls, 610% increase in total suspended solids. Even if it's supposed to catch 90%, that still allows an increase of 203%. So again we would urge that you -- that you adopt a standard similar to what the city of Austin has and basically require that the water quality controls are designed to collect 100% of the pollutants, we all know that they won't because they don't always work, but at least have them designed with that goal in mind. And finally, there are several particular pollutants that are mentioned to be protected by the engineered water quality controls. These are suspended solids, phosphorus, oil, grease, these are good pollutants to be protected against. But the water quality controls should also be designed to protect against other forms of pollutants that are in -- that are flowing off of developed sites, which would include pesticides, arsenic, pah's, lead and mercury, should also be removed from the runoff. For example, in a 40% impervious cover commercial development, one that we looked at, lead -- lead will be 100 times, two times the amount of runoff for undeveloped property and if untreated each commercial site could be dumping many pounds of lead into the aquifer. So those are the initial comments I had. Again, as I said, we do hope that you will adopt these interim rules with modifications as soon as possible. And proceed to adopt some permanent rules. We are very glad that you all are moving in this direction.
>> all of those chemicals will then also impact eastern Travis County if.
>> that's correct.
>> thank you mr. Rockwell.
>> yes, sir.
>> honorable commissions, ladies and gentlemen, my name is andrew bucknell, I have to admit to you I am not an expert on water quality issues. I come before you as a parent. I知 here because of my son over here, aaron bucknell, I share with you a concern about the quality of our water in Travis County. Because I think it is so important that we protect our water for our children and our future. It is not just an environmental quality issue. It is a human quality of life issue. That is really important that we have a comprehensive plan that is not just for one part of the city or one part of the county. But it addresses water quality in all parts of Austin. All parts of Travis County. The process of osmosis takes the -- the water will move from the area of lesser -- of greater concentration to an area of lesser concentration. I think this is interesting because development follows the same pattern. We tend to go for more dense areas and then we get sprawl, which develops out in the outskirts of town in the outer -- the outer range outside of the county. If we don't have progressive planning, if we don't have forward thinking, then what's going to happen with our plan now for the kind of development that's coming now is going to be compounded as growth occurs in new areas because the cities -- the city's more populated metropolitan areas get overcrowded and people start to move to the suburbs. So I think it's very important that we -- growing up in a house with a creek in the back yard, shoal creek, having witnessed the memorial day floods and seeing the top of the 7/11 float across the street, that we have a plan that says where development should be. The neighbors that live by the creek had to crawl up the inside of their house into the attic as the water rose up. My friend joe vasquez then had to break a hole in his roof and climb out on his roof with his family and wait for a rescue boat to come in and save them. That was a result of because -- at the time, when that house was built, there was not dense development in that area and the floodplain was not as high as it was at the time that flood occurred. Because as we get more impervious cover, as we get more development, those floodplains tend to rise. So I really commend you. I really salute all of you for having this progressive, forward thinking, policy -- you know to really carefully think things through and make sure that we are making decisions that don't just address the issues today, that are forward thinking and really address the kind of plan that we expect in the future. So thank you very much.
>> thank you.
>> thank you.
>> yes, sir?
>> judge Biscoe, Commissioner Gomez, daughterty, Sonleitner, Davis, my name is bill gunn, I知 a local developer. Sweetwater, on highway 71, that's probably auto familiar development. I was on the panel as a voting member and later as a non-voting member. I want to commend the Commissioners for bringing such a diverse group together to -- to see how we could work together. I would like to report to you that everybody was extremely gentlemanly and polite. Many of us got to know others that we would never have got to know. For that, I commend you. Iments commend two things -- iments commend two things in the -- I also commend two things in the report especially. One is impervious cover, we have already heard two people talk about impervious cover. The report recommends against it. And we are banddying it around like impervious cover is a legal word, it's not. Virtually every city will have a different interpretation of what it is. Once it gets implemented, I would assure you there are cities in our general vicinity, that if you decide that you would like to cluster development or if you decide that you would like to leave a large block of open space, that that will not be counted as parts of your impervious cover. If -- if in a case of water quality, you decide that you would like to say no degradation in the creek with water quality measures, if you would like to say irrigate an open space with that water, once through filtration systems, you will not be given any kind of credit for that. And that also is another thing to beware when you get into impervious cover. In the case of [indiscernible] litigated by s.o.s., prevailed, I was one of the witnesses, s.o.s. Has appealed that. My attorney asked that I no longer be subjected to questions that could be brought up in some kind of appeal. I regretted that. I would have liked to have participated and been around. There were some things in the regulations that were proposed that I think we need to color weather radar and one of them -- that I think we need to consider, one of them take the case of lazy nine, e.t.j. Of -- Travis County, hurst creek watershed andments barton correction -- and little barton. We have water quality rules, we have to comply with bee cave, Austin's, lcra's, tceq's, now the county. It certainly would be helpful for your process if on some occasion we knew exactly whose water quality rules we were going to have to comply with, because in some instances we will have lots that are in two jurisdictions. Also on page 38, section [indiscernible] 11, I would like to bring out something. These were kind of unique to sweetwater, they were not really worthy of the panelists time. But section 4.11 talks about dark skies, I would like to have some variances on that for the simple reason that -- one major reason is that we are looking at maybe being a -- being a location for a possible county park. And if we become a location for a county park, there -- there might be proposed ball fields. Those ball fields could be lighted. In our particular instance, there -- at this point in time, because it is sparsely populated, there would not be a -- would not be a particular objection in our particular area. But -- but in general, I think accommodating dark skies for the few, we have areas that we would like to at least have street lights, say, at the end of cul de sacs, maybe street lights at the intersections. It is useful to see a stop sign or yield sign and those street lights do help, but if we want to minimize them, that's fine. On page 41, 6.11, has adoption of incentives for green infrastructure and trails. We definitely are going to need assistance from the county in all developments to establish trails. I can't tell you what the gentleman to my right here in s.o.s. Will say when we go into some of these tributaries and want to do a walking trail alongside the creek. I would like for us to take that into consideration. If the county would like to do a master plan on trails, so everybody doesn't just willy nilly go into their tributaries and put a walking trail, so be it. We do need to consider that because obviously in order to do a walking trail alongside a creek it's not going to be in its totally natural state. 46.218 -- sorry, of that your trails and on 61, we had removal of cedar. This has been a -- a sore spot for years. We would like nothing better than to clear cedar, juniper. It's a weed, it's not a tree. We get all kinds of flack if we go into our developments and clear it. Now, if you are a rancher, that's fine. But the minute you become a developer, it's not. We would sure like some county assistance in getting cedar removed in some areas that have been mitigated, regretfully, if you go to those areas today, and those beautiful tracts were bought for -- for mostly preserves, but if they -- if they ever come out of mitigation, the old trees are probably gone. You cannot walk in some of them in as short of a time period as five years. The cedar has simply closed in and you can't walk. We have areas, most of western Travis County, that have been neglected that are exactly in that situation. And we would like some help in clearing the trees. Now, we do have tceq regulations, I don't know whether everybody is aware of those. We can't take an ax and turn those things into mulch now. The reason we can't on a piece of property if you have not had an environmental assessment, the t sex does not want you to cut that cedar and mulch it because if there are karst keeps, the mold of course would hide the karst features. We are well aware of that certainly but we would l.i.-c.o. Some help to clear the cedar.
>> tom, is he working off of a document --
>> that's the final report. You are riding from the final report of the dialogue?
>> which is a different gig than the interim rules, correct? Help me out, tom.
>> correct. Those -- I think -- most of the people participating in the growth dialogue, the stuff could end up in the permanent rules.
>> permanent rules. Yeah, a couple of those things --
>> thank you for clarifying that. -- [speaker interrupted -- multiple voices]
>> I just worried that I was off the document.
>> this item was posted for discussion today. It will be back on the court's agenda next week for action. We appreciate your input.
>> mqhc.
>> some people -- some people didn't get to come up and speak.
>> okay, that's why I asked -- we have four -- we have five chairs available. We normally recess at 12:00.
>> we can come back after lunch.
>> what's the court's preference?
>> we have a full afternoon.
>> we don't have a lot to say, I don't think.
>> we are going to have to take extra time for lunch anyway. Okay. If you will just hand them ail to her, if they have names on them, she will find hers.
>> I do. [inaudible - no mic]
>> judge and Commissioners, I知 larry neiman, a lawyer, retired. I have in the past represented many people who are affected by these ordinances. I myself is affected. Most of the interim ordinance has a very laudable purpose. Even the water quality portions of it. But I知 here to tell you that I think that you are ill advised to proceed forward on the water quality portions because you simply do not have statutory authority to do so. I know that that is not a pleasant bit of news. But I honestly believe that. And I believe in my heart that this court has an obligation to make sure that it is doing what is lawful under the current statutes. And in that regard, I think mr. Stewart will be giving you a brief that has been prepared by mr. Allen heywood of the graves daughterty law firm here in Austin. In that brief he concludes that under Texas statutes the -- the urban counties do not have authority in the water quality area. They have other authorities that I will get to in a moment, but I think you should seriously listen to what mr. Heywood says in the brief. For your information, mr. Allan heywood is considered at least one of the foremost scholars on real estate laws in this state, in this neck of the woods. Very highly respected, I think his opinion should be given due consideration. The -- the statute upon which mr. Nuchols's relies, the urban county statute, simply does not give urban counties authority to duplicate and expand on the Texas commission on environmental quality regulations with regard to water quality. Particularly, the attempt in the interim rules to achieve water quality by buffers and setbacks and if it's anything like the s.o.s. Ordinance, it will grow to include impervious cover and other kinds of water quality mechanisms, at the same time Travis County does have a lot of authority in the water quality area in -- by other methods. Right now you have the -- the ability, the lawful right to require developers to provide copies of their tceq water quality plans, their tceq permits for construction and implementation of those plans, I think the testimony so far has been rather disht ent on this issue as if there were no other sources of water quality protection. The tceq regulations are quite comprehensive. They apply state-wide, they require water quality ponds, filtration of runoff right now. Ments the fema rules, the federal rules, prohibit development in the floodplain with some exceptions for parks and roads and other things that of necessity must be in the 100 year floodplain sometimes, but structures cannot be in -- cannot be in the floodplain so that they would be flooded. I would urge the Commissioners to respond in writing, don't keep mr. Nuckols' response secret, share it with the public just as you would have to do if a declaratory judgment suit were to be filed contesting the lawfulness of the water quality portions of the ordinance. I think the [indiscernible] the Commissioners have a duty to make sure that it is proceeding forth in a lawful manner, with due diligence and to put the county attorney to the test of the very comprehensive brief has that been prepared by mr. Heywood. If anyone else would like to see that brief, I知 sure that it is available or will be available from mr. Stewart. I think that you will very likely be hearing from other lawyers among the real estate bar in the city of Austin confirming take mr. Heywood has hit the target square in the middle. That the county does not have the authority to duplicate and expand upon the existing state tceq regulations regarding water quality. That concludes my testimony.
>> the buffers and setbacks that you question?
>> anything beyond the 100 year floodplain. Okay. Anything at the subdivision platting stage. Judge, the theory by which the county attorney believes that you have water quality regulation authority, is under the subdivision ordinance, the [indiscernible] county subdivision ordinance. If I may just briefly explain it in a nutshell, the county subdivision ordinance is almost word for word as the city subdivision ordinance. The Texas supreme court, in the quit case, has said that the city subdivision ordinance is not a water quality ordinance. No water quality authority was given to the cities under the subdivision ordinance. Then if the city subdivision ordinance doesn't give the cities water quality authority, how then can the county subdivision ordinance give the county water quality authority? And I beseech you, almost beg you, to proceed carefully before you drag the county into the danger of a declaratory judgment suit that -- that would be very costly for the county and I think end up with an adverse result.
>> let me ask you this question. You presented us with this material today. This has been talked about for I guess for months, I don't know how long -- joe, how long have we been dealing with the interim rules as far as the county? Let's go back to the initial nation date, time? When?
>> the first proposed draft that was publicized was in February. My question is when did it come out of suspect from you that the water quality issue that you brought up as far as what we are dealing with, having the authority to deal with, when did you have knowledge of this historically? Apparently there's been some previous tests -- testing of this issue as you stated before the city of Austin. When was that done and if we had been going down the wrong trail, why was it brought up instead of just today? That's my question.
>> Commissioner Davis I think you are going down the wrong trail for political reasons --
>> I just posed that question. If you can give me an answer I would appreciate it.
>> I want to give you an answer. I can give you an answer.
>> -- [speaker interrupted -- multiple voices]
>> not for political reasons. It's because I need an answer.
>> in fairness they questioned our legal authority to do water quality back in February and not before. That's always been --
>> you bet.
>> the very beginning, Commissioner Davis.
>> we discussed this with your county attorney, we objected from the very beginning. As a matter of fact if you will recall, several months ago I appeared before this very microphone telling you at that time that I -- that I had severe reservations and I was convinced that you did not have authority. Those who believe like me, had mr. Heywood draft a brief. For you, mr. Nuckols was very gracious to sit down and visit with us about that legal conclusion. By I assure you, mr. Davis, this is not a johnny come lately position. We have tried to tell you this from the very beginning.
>> again today, this afternoon in executive session, we will talk about it.
>> that -- [laughter]
>> go ahead, judge.
>> [multiple voices]
>> we have given it to you publicly. All that I am asking is for tom to give it to us publicly. [multiple voices]
>>
>> you have made public. Are you going to give those to me? [laughter]
>> I tell you what, I will give all of mine to you, if you will give all of yours to me.
>> show me yours, I will show you mine.
>> is that a deal? Is that a deal.
>> I need to talk to my clients.
>> hold on.
>> hold on -- [speaker interrupted -- multiple voices]
>> we have another speaker, let's go.
>> good morning, Commissioners.
>> good afternoon.
>> good afternoon. We have been here a while. My name is ted stewart. I think that I have been here before in the beginning when this process started like mr. Neiman. I am here today wearing three hats, one bigger than the other. We have heard the legal fights, we have been led to believe from our legal position what the county is about to do is not legal. I know it's legal for you to post a 40 miles an hour speed limit on hamilton pool road. If I break that, I get stopped, I get a ticket. As I have several times. I don't know. We don't know what the -- what the legal ramifications of what you guys are doing is all about. What we did, the Texas landowners conservancy as a group, the affected stakeholders, the people most affected by what you are contemplating doing here, paid -- we think -- who we think are the best real estate attorneys in the ball game in Austin, Texas. For your benefit. To provide you with a brief to study and have mr. Nuckols reply to. That's what I delivered to you in these packages today. I知 sorry it looks like a last minute deal, mr. Davis. This conversation that we are having now was moved up one week and surprise to us as it was to -- to --
>> my concern strictly is the -- this could have been put on the table early on. This in writing. I hear you, but nothing in the magnitude of what's in writing here until today. That was my question is if --
>> if it was something that was early on, I think we needed to have that in writing early on, da-da-da, you know, you know, get to that end, but --
>> it doesn't matter too much. Now you understand our position. We got the first interim rules on Friday night. So I understand your position.
>> I知 here today really to make three points, I will get out of here, we can go to lunch. The first one is that the -- the one that we are discussing right now, the county does not have the legal authority to adopt certain parts of these interim rules and especially those issues that -- that try to impose water quality regulations on property out there. And I defer to our legal staff to -- to make that point. I said as mr. Gunn alluded to earlier, I sat on the panel for nearly a year, spent lots of time on that as one of the large landowners, one of the six large landowners who are affected by these interim rules and I知 going to couch all of my discussions to two issues. Bluffs and string buffers. There are a lot of other things that you are doing, in fact the preponder ran of the other things that you are doing I don't have any objections to. But those two issues have been here since the very beginning, through all of the conversations that we've had. They still exist. And they are still unacceptable to the six tracts of land that you are trying to impose these rules on. I believe that the goal of the entire process of the dialogue, now into the interim rules, is to protect the western part of Travis County, specifically the pedernales river, the valuable environmental features and -- in my ranch, up and down this six miles of river, I believe that's a worthy goal. It's a goal that has a real broad support from Travis County voters, most of the cities in Travis County, and believe it or not most of the landowners who own the property that you are trying to place these restrictions on. However, the process that the county has used to achieve this goal -- and my lawyer's recommendation, I have toned this down -- but it's been a very transparent attempt to confiscate land and property rights in the name of health, safety, welfare and water quality. And I知 expand on that a little bit in that I believe that -- that the true goal in this particular area, as you mentioned earlier, for the first time, we have denoted that that is a special place in the county. The pedernales river section has a special set of rules. We have now divided the county up into east and west. Not a good idea. I don't think. But we have done that in an attempt to show why these rules need to be placed on the pedernales river bluffs. As we have gone through this process the definitions have changed to meet the goal. The goal is this. The county has an intent to acquire property, the rhymer's ranch and create preserves up and down along the pedernales river. That's a great thing. We are, I for one, two miles of river that I have, I think that's a wonderful goal and a wonderful use of county funds. Along with that. What the county is attempting to do is create a -- a conservation easement, a view corridor in the name of setbacks, called a seth back in the name of water -- called a setback in the same of water quality to protect people in the future from building overhanging mansions along these bluffs, like has been done on all of the rest of the river upstream and downstream. You pass the bog creek, you are in the subdivision, you go to highway 71, all the way from there to downtown Austin, Texas people have built on the bluff, because that is the most desirable place to view, create a view, the most valuable piece of property on that land. My problem with -- with this is it's kind of like -- you know, it's a little bit like the 5th grade kid who decides he wants to cut school, cuts class one day. He has a scheme worked out. He cuts class, he says well tonight he goes home, writes himself a note to the teachers, dear bobby he was sick today, he couldn't go, signed mrs. So and so his mother. And so he has this note and he submits it to his teacher. The problem is his teacher is the one who is teaching him handwriting today and sees it's his handwriting on a daily basis and knows who it is. It's easy to see through if you are one of the landowners, again there are only six of them, six tracts of land affected out there to see what the goal is. So -- so I have been trying since the beginning of this process to get a meeting set up which I finally got set up this week. And that is the direct meeting with the people who are affected and the people implementing the rules on behalf of the county. So we have a meeting scheduled tomorrow with tom nuckols, joe gieselman to go out to my ranch, walk these bluffs, hike these bluffs, take a look at where we're going. Then -- then --
>>
>> [one moment please for change in captioners]
>>
>> ...to go to court over this, but I do believe we can accomplish that goal, which is clear. And what I ask you to do in that process is to continue forward on a one on one with the landowners along the river. Believe it or not, I had lunch with mr. Bunch for the second time this week, and I told him, I said through this whole process the only consensus that I think as far as a consensus that's been reached through all of this process is a mistrust on the part of all parties. At the end of the day nobody trusts anybody, and everybody is looking for a 100% gain on both sides of the fence. You know, I think it's a real paradox that the landowners, the environmentalists and the county all have a fairly common destination of what we want to see in bluffs and stream buffers and development along the river. It's just that as it exists today we're all travelling in different vehicles to get to this same point. So i'd like to leave you with the idea that I for one, as probably the owner of most of the land out there along the river, the greater part of it, think that we can achieve a high level of protection for this beautiful part of the Texas hill country without resorting to the confiscation, condemnation and costly courthouse battles. I can debate for a long time some of the things that joe had to say about the bluffs out there, and I hope tomorrow to show him to even discuss creating vegetative buffers along the limestone bluffs out there really is pretty weak. It doesn't make sense to even discuss it. It's like water doesn't run across, it comes from -- it doesn't come from blanco county, gillespie county, run across the property in Travis County and then power off of this bluff. It ends up in streams. There's very little water degradation created by what runs off of the bluff if you take the bluffs as a whole all the way across there. So what i'd like is an honest dialogue about what you guys really want to achieve out there, quit trying to disguise it as a water quality issue, whether or not you have the right to do that really is not my fight, but I don't think that's what the goal is. And let's sit down with the people who are affected and say, you know, you might be really surprised to find they want the same thing you want. And I for one know what I want out there. And I look forward to my meeting tomorrow with tom and joe.
>> a couple of questions. How many acres do you have out there?
>> I think it's around 14, 15 hundred acres.
>> okay. And do you have in your mind what you voluntarily would want to do in terms of that as a development idea in terms of things that you think, whether you're required to do it or not, go hmm, that's a good idea because it's more marketable because of the idea that let's say you could just do it, 100% impervious cover, nobody wants to go out to the hill country and have everything covered. That's not a marketable idea. People go out there to have space in between, they enjoy trees, so do you have it clear in your mind as to what things you think are good ideas for your development and we're not really at cross purposes in terms of stuff? Help me out. Help me understand.
>> well, you may or may not know I filed a subdivision plat, a final plat on my property out there some three or four weeks ago, something like that, and what I applied for is a one lot subdivision, 1400-acre lot. And part of the reason I did that was to disburse the idea, this mistrusting idea that everybody has that all ted stewart, all his neighbors want to do out there is go develop their land, and we're in a land rush, we better hurry up and get something done and get these rules and regulations placed on these property or he's getting ready to do that. As you can't know, I can't resubdivide the 1400-acre tract later on without losing my protections under 1704. What I am concerned about, though, is -- and I think that's a question -- I don't know what the future is. I would like to say i'd like to see it left exactly like it is today in the interest of the common good. My problem with what you're doing and how we get it to that point is I don't believe in the concept of regulatory taking where you six people, five people leave it inside basically the confines of mopac can write a regulation that prohibits me from developing or doing anything I want on 90% of my property. Now then, we are negotiating right now with the rhymer family to acquire 500 to 1800 acres of land out there for a park. You have the right of condemnation. You didn't entertain that idea, I hope. And the idea of condemnation and the new london case which just passed is an object noxious for property owners to condemn their land and sell it for property. What we're talking about is we don't even have the right of condemnation process. That would look great to us. Come to us, get the appraisers it together, figure out what the value is and give it over to the people of this state.
>> I don't want people to think out there that somehow we are talking about condemning property for the purposes of a park. We are not. We are negotiating in good faith with people who are willing sellers. Same kind of thing related to the balcones canyonlands. We work with willing sellers. So I appreciate your concerns with the new london case but nobody is talking about condemning property in western Travis County for purposes of a public park. It ain't happening.
>> would you understand my parallel that I知 drawing on our property where you are willing to write a regulation that takes away potentially 90% of the value of our land without paying us anything for it?
>> are you going to have to work with other jurisdictions out there. I知 thinking are you going to have to work with the lcra in terms of to try to get a contract for water? Don't know. Are you going to have to work within the --
>> we're not talking about development. Commissioner Sonleitner.
>> no, but there are others out there as well who have regulatory authority and who persons can feel like it feels unwielding, but it is the law. If you have to deal with u.s. Fish and wildlife, if you have to deal with tceq. We're not the only ones out there that have jurisdiction and authority, and you're making it sound like the only people who might have discussions with you about what your development is going to look like is the county, and that's absolutely not true. You will have to get utility service, have to deal with those folks. You will have to try and get roads out there. You will have to deal with tceq, so some of these same discussions are going to occur with them.
>> again, you're talking about developing that tract, Commissioner. What if I want to go build my oldest son and his family a cabin on the bluff of the pedernales river? Where everybody else that owns property on the pedernales river has balt up until now -- built up until now? I知 not talking about running the water lines. I heard a comment today that you made about tceq and their authority to establish septic tanks. Your comment was the county doesn't have the right to do that because tceq has that right and prohibits the county from doing it. We believe --
>> no, I didn't say that. My attorney made clarification. The question was being raised that you shouldn't be doing that kind of stuff in a floodplain. And the question was doesn't tceq have the controlling legal authority and we had to go by whatever the rules are related to the state of Texas, and we had to go in with very specific science to get any exceptions to the state minimums. The state minimums became what our laws are. We got it on separation to groundwater and a couple other things, but tceq is the local authority. Others were questioning whether we had any right to step in, and the answer is no, there is authority out there.
>> well, I read mr. Heywood's brief up there and came to the conclusion that you don't have the legal authority to implement and impose these water quality regulations, and in fact will adopt the tceq laws that are in place today, but again, I知 -- I read in the paper this morning and I知 glad to hear we're going to have another 30 days of discussion on this. I知 optimistic that the six landowners out there can get together and deal one on one, not through a forum of attorneys and landowners and unaffected parties by what goes on on this vote. I want to leave y'all with one thought, that we are very aware of out in the county out there, and it's somebody brought up on owe I think brad -- I think brad did, brad rock wm, said dripping springs had adopted the rules and regulations down there that came out of their growth dialogue. I want to point out that the city limits of dripping springs is 25 hundred acres. There are, I believe, five councilmembers there. They adopted these rules and regulations as a city on 75,000 acres of land within their e.t.j. If that is not taxation or rule without representation, I don't know really what is. And to the extent -- to the extent that the science is there, we're all buying clean water. We're not running from that. That's why we bought the property we have that has streams, springs and creeks. And what we want to do is bring to the point fair and just compensation for what you're asking us to do for the common good.
>> thank you, mr. Stewart. Yes, sir?
>> good afternoon. Dominic chavez with the real estate council. Judge and Commissioners, i'll keep my comments brief because I知 hungry and I want to move on.
>> we are too.
>> thank you, Commissioner. First of all, I just want to take this opportunity to thank mr. Gieselman, ms. Bow less than and mr. Knuckles for the hard work they've put in to developing these rules over the last couple of months and for the better part of this year. They have a thankless develop and they ought to be commended for the work that they're doing to try to accommodate. I have a letter from the real estate council with some suggestions and comments about the July draft that we have in front of us now. I know we've met with each of your offices over the last week or so. It was kind of a fluid document at that point, so we just wanted to kind of update our feedback and comments with respect to this -- these interim rules. So I won't go into detail. A lot of the issues have been touched upon. I won't go into details of the specific comments that we have. I'll give a copy to each of you and also pass it along to mr. Gieselman and his staff. One thing I want to touch upon which has not been mentioned is the issue of the utility agreements. I know, judge, you brought up that really earlier. The development community when these rules first came out did have questions and issues with the utility agreements provisions that were in these new rules. Not so much because they had a problem with it, but the concern was how the utility providers, particularly the small utility providers, were going to react to these requirements, what additional requirements are they going to put upon the development community. I think with this July draft we've come a long ways towards addressing those issues. Having said that, judge, I think you asked the 25,000-dollar question. It would be helpful to know, get a better sense of where the utility providers, with the current requirements that are in this July draft, how do they see it? What would their response be to it? That would go a long ways towards alleviating any concerns that the development community might have because if we get some reassurances that sh isn't a problem, we're not going to create additional burdens for you, we're not going to require 50% of financing up front to sign the certification, I think that problem essentially goes away. So I知 hoping over the next week or so we can have some more discussions about that and maybe get some discussions with some of these utility providers to clarify that. So with that I will distribute these comments and look forward to working with the county and the staff on a going forward basis. We have a lot of issues to deal with, it sounds like, but we definitely want to be at the table and want to help address the issues that kind of generated this discussion. I appreciate it.
>> thank you.
>> thank you, tom.
>> judge and Commissioners, my name is ken mann. I would like to commend the Commissioners court for making a statement with the interim rules that it's time for the county to have a seat at the table on water quality issues. I think it's important that there be a level of protection provided for water quality in the e.t.j. -- in the county beyond the e.t.j. Of any of the municipalities. I would submit that existing tceq rules are not nearly sufficient in that regard to provide the level of protection that is appropriate. Let me stress that it is my understanding, and I hope the staff will correct me if I知 wrong, that the proposed interim rules only apply in the part of the county that is not within anyone's e.t.j. I think mr. Gun's comments about i've got lcra regs, i've got the city of Austin e.t.j., now I知 going to have this on top of that, that is not my understanding of what these are about. These are to fill a gap where there is not ordinances and requirements in place on the part of municipalities. If that's not accurate, please tell me so, but that's my reading. I'd also like to commend Commissioner Daugherty for setting the southwest growth dialogue in place. I was not part of that process. I was brought in more recently in the last couple of months to work with staff in trying to hash out some of the issues in the interim regulations. I appreciated the opportunity to be part of that discussion, and as has been mentioned, your staff has done an admirable job in trying to bridge the gap between some environmental perspectives and some development perspectives. On a lot of issues. Needless to say there's a lot of details that remain to be worked out. What I have tried to do as part of that process is say I知 not going to insist that every one of my issues be worked through. It is my understanding that the Commissioners court would like to do away with the hold on preliminary plats, so I have foregone a lot of the issues or reservations that i've had about some of what is in front of you. I知 okay with that. It's like it's time to move on, let's do the interim rules and move into the final rules. Southwest growth dialogue initiated the discussion on the county's part about water quality, but I think it's very important for us to acknowledge that we've moved beyond that. We're not just talking west Travis County. We're not talking southwest Travis County. We're talking all of Travis County beyond the e.t.j.'s. I think it's very important that we've addressed the water quality issues on the east side. That is being addressed appropriately and differently, and water quality issues on the west side. On the east side, as has been mentioned, it's got erosion issues. You've got much flatter topography, you've got floodplain issues. There's a very different approach taken on the east side than the west side, but we said it is as important to protect water quality on the east side as it is on the west side. I think it is a tribute to your staff and to y'all that this is not leaving the east side playing second fiddle to water quality on the west side. What do the interim rules do or not do? Is the county involved in water quality issue? I would respectfully disagree with the contention that you do not have any legal authority to be involved in that arena. And I commend you for saying you should be at the table. What do these interim rules not do? They will not relate result in any perceptible difference in the character development in the hill country compared to what you are currently seeing in the village of bee cave, for example. It will not preclude intensive development. You can't have shopping malls, you can't have three units per acre subdivisions. Let's not kid ourselves about what this does. There's not a zero degradation standard. This makes a lot of accommodation for development for economic development to assure that there is little, if any, legitimacy to the suggestion that there are takings involved in these regs. A lot of legitimate questions have been raised. Most of them I think can wait for the final. I think there are a lot of details to be hashed out that don't need to be hashed out before you adopt some interim regs. In closing, I commend the Commissioners court for moving in this direction and urge you to move forward with the interim regs on an expedited basis. Thank you.
>> joe, do we want these back on for action next week or two weeks from today? Commissioners, can we be ready by next week?
>> the extension of the preliminary plans expires July 31st, so the 26th is your last opportunity to take action before that goes away.
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Last Modified:
Wednesday, July 20, 2005 11:18 AM