Travis County Commissioners Court
February 7, 2012 (Agenda)
Item 1
Item number 1 is a public hearing to receive comments regarding the adoption of proposed changes to the Travis County code, to update and strengthen water quality protection requirements including repeal of chapter 108, the repeal of various provisions in chapter 82, the revision of certain provisions in chapters 82 and 64, the addition of a new subchapters h through k to chapter 82, and the digs of new chapter 10.
>> move the public hearing be opened.
>> second.
>> all in favor?
that passes by unanimous vote.
of those present.
>> good morning, judge Biscoe, I'm director of the natural resources environmental quality division, with me is tom nuckols.
the rules in a broad sense have to do with incorporating storm water controls into our county code.
there are some other -- it's a very broad set of rules.
the clean water act requires that we address storm water runoff and storm water, as you know, is what happens when precipitation typically for us rain, although it could be snow at this time of year although we're not going to see any of that, I suspect, but when that strikes the ground, it runs off, either across land or across other impervious surfaces and particularly the issue it picks up a lot of debris and whatever else may be on that surface.
it's become an increasingly important water quality issue so the clean water act requires that municipalities, and in our case we're considered a small municipality under the terms of the act, we have to adopt a storm water management program under the ms-4 program.
so we have done that, but part of our directive under the existing general permit is that we have to incorporate storm water controls into our county code.
so we have been talking about this for some years.
we are in the fifth year of our initial phase of the general permit.
we came to you almost two years ago to start talking about the general provisions associated with this rule making.
and then we were here back last March to talk about how to engage stakeholders in a process of reviewing draft rules.
and in fact we've had numerous drafts that have been vetted with folks over the past year.
this has included a number of stakeholders that mr. Webber has contacted by email and the like.
we've had some direct discussions with stakeholder groups.
we've also had a lot of discussions with our internal partners including development services and we've had a lot of assistance from our legal staff.
so the rules have evolved substantially over the last year and we're now to the point we've got a draft we think is going to be sufficient to receive some public comment and that's what we would like to have at this point.
we have no doubt that it will continue to evolve based upon that public comment.
very broadly the purpose and goals of this rule making are to provide further protection to the county's unique surface waters, address geographic gaps of coverage that we have in existing water quality requirements.
fulfill the mandate of the county's ms 4 -- that stands for municipal separate storm water system -- permit requirement regarding regulatory mechanisms. We have to adopt something on this line by the end of August, which is the end of our fifth year of the initial phase of our permit.
we're expanding technical standards that are already in place in city of Austin and Lake Travis watershed areas so we have greater consistency.
we're implementing new standards for storm water control associated with land disturbance at construction sites.
and this is one of the chief drivers of this entire thing.
and we're making sure developments adequately manage once constructed.
we have established a variety of authorities under which we take this rule making option.
I won't even go into that.
I think legal will be able to help us out with that at any point.
at this point I'll turn it over to tom webber who has been our key person in leading the effort along with dave fowler of our storm water management program.
>> good morning, judge, Commissioners.
again, tom webber, environmental quality program manager.
I wanted to hit on just a few topics before we turn this over to get public comment.
a little bit more on process.
the actual changes to the code structurally and a few -- a few points on what will change if these rules are adopted.
so you'll recall that we came to court in a work session on may 27th in 2010 and outlined the concept and nature of these regulatory changes and we got some input and feedback from you at that time.
we then drafted, put together an initial draft of the rule and we briefed you each individually on that draft and proposed the stakeholder outreach process that we've put in place.
that -- that ended up being a release of the draft rule in three parts over the course of March through may of 2011.
we set up a website and a special mailbox for people to submit comments and we -- we had a large email group with a broad spectrum of the Travis County public of all different stripes, I guess you would say.
initially that was over 100 people in that email group and it's grown to almost 130 individuals who have been getting updates on this.
we've had several meetings with individual stakeholders and groups.
we received some written comments to the draft.
not as many as I actually anticipated.
we revised the rule substantially based on external and internal comments.
we -- we sent additional drafts to stakeholders on December 1st of 2011, and then again on January 17th, just a few weeks ago, notifying stakeholders of the public hearing today.
and structurally what these changes to county code would do is it would add subchastise s h, i, j, k.
subcavity h and I are the standards for environmental review for development related applications provided to the county.
and there are also a j, applicable to operators much a construction site to assure storm water controls are in place and subchapter k addresses special standards applicable to road building since those are some fairly unique considerations in that kind of a project.
new chapter 104 includes prohibitions applicable to any person.
so as opposed to having a scope of permit applicants, it is any person in the county who discharges pollutants in our jurisdiction.
it specifies our enforcement policies and how violations may be addressed.
we propose repeal of chapter 108.
this was the county's policy on tree protection in rights-of-way.
and those are now incorporated into the subchapter k that I just mentioned so it is no longer needed to have 108.
we propose the repeal of what has been called the interim water quality rules that were adopted by this court in 2005, 5 and the repeals are proposed -- and then we've made revisions to many of these interim water quality rules.
there's a chart in your backup material that shows you the disposition of the interim standards and where they are now found in what we're proposing today so you can kind of see that they aren't deleted or repealed, they have just modified and moved.
lastly on structural changes, we propose substantial amendments to chapters 82 and 64 to incorporate new and revised definitions, to update our fiscal surety provisions, to adopt new technical standards for driveway approaches, and to include appropriate cross references in the new subchapters that are proposed.
so what -- what ultimately is change?
in the backup material, we -- we have a lengthy section under issues and opportunities of some of the more significant proposals in this rule making.
I'll just name a few of the major ones, but you can see the list of things that are changing or I guess you could also say we describe changes to the county code where we're really expanding existing requirements of other jurisdictions into our jurisdictions.
for instance, the city of Austin and lower colorado river authority requirement.
and in fact we do have a representative from the city of Austin here today, matt holland, who -- who can talk to some of the issues relating to city of Austin if we have questions on that.
unlike the 2005 water quality rule, these rules will apply in all the municipal e.t.j.s except relating to subdivision proposals that go through the city of Austin, Travis County single office.
the tceq requires that we exercise our authority throughout our jurisdiction and so we didn't avoid that.
in this proposal.
there's also a proposal to issue a permit for the permanent minutes of water quality ponds and the collection of an annual fee to defray staff costs of inspection of these ponds.
that also relates to tceq requirements.
there are technical standards for the control of impacts from mining and quarrying including reclamation standards.
and there are in terms of storm water pollution prevention plans that are applicable during a construction phase of a project.
we've included standards that we believe will add more protection to water quality especially with special consideration by an applicant when there's some critical site characteristics like we find in many instances.
so I'd like to turn this over to receive public comment and clarify that we're not posted for action today on today's agenda.
we are -- we are publishing probably this week the taking impact analysis which offers a 30-day comment period.
and we also expect some final wording changes based on input we received today from you or from the public.
>> court members, any questions or comments?
do we know what impact the interim rules had?
>> they've had a positive impact in terms of moving the county toward what our requirements are under our ms-4 permit, but by their very name interim I think we knew going into it that there would be additional protections.
but we -- we advanced the ball since 2005.
I think that led to the establishment of a larger storm water management program and -- and with the authority under those regulations we were able to put in place things like environmental setback where our jurisdiction was not in common with somebody like the city of Austin who already had those standards.
so yes, it's had a positive impact.
we -- I guess in terms of environmental measurement of those improvements I can't quantify that.
>> so those who want to see the substantial revisions that have been with made?
we would provide them?
>> yes.
yes.
and again, the -- I think it's exhibit c in your backup has a chart that shows in the -- in a left-hand column, we have the existing requirement, our interim rule and then the right-hand column what we're proposing today on those particular standards.
and, of course, they are not -- this was just a side by side of those interim rules and what happens, but there are, of course, additional standards that -- that are not shown on that particular chart.
>> and a final question from me, how do you propose -- what additional steps?
>> I foresee the 30-day notice period with the takings impact statement will take us to approximately the second week of March.
so I think that we would have the opportunity to -- if any members of the public wishes to, we could -- we could meet with anybody, we could establish a short time frame to get any additional written comments.
and then make any final changes and so in the mid-to-late March time frame I think we could come back with a proposal, a final proposal for adoption.
>> any legally required deadline?
>> yes.
the -- the ms-4 permit does -- excuse me -- does require that we get these regulatory requirements in place by August 12th.
so we -- we do have that leeway.
I think we've got a lot ahead of us and so we -- you know, we just did the ground water protection rule and brought this forward after it.
county attorney may want to address this, but we also have a project in infancy to kind of look at all of chapter 82 and to try to rewrite it in a -- in a more user friendly and -- kind of a -- it's a project that we want to get underway next after -- after this phase so that's the reason we're trying not to stretch this out till August.
>> court members questions?
this is a public hearing.
>> so the revisions that we're making that strengthen this, are they already in place in other places?
I mean, are we forging new ground here or is this implementation -- of recommended best practices?
>> many of the -- several of the requirements are already in existence in lower colorado river authority and city of Austin jurisdictions.
some requirements, for instance, the permanent water quality controls we derived from the harris county area, who is also a ms-4.
we -- we've actually taken the step to look at what e.p.a.
adopted in the past year and incorporated that.
different jurisdictions are likely to have to do that sooner or later.
there's a lot of transition in the standards relating to water quality, or I should say storm water management particularly.
our illicit discharge elimination program was derived from model ordinances.
some of the requirements for mining and quarrying were kind of a combination requirement that lcra, city of Austin has, plus we also looked at what the state of missouri and the state of wisconsin does in terms of controlling impacts from mining.
so those are a few examples.
so I'd say -- I'd say you would find, you know, around the country I think you'll find regulations that could be more stringent.
there's some things that we didn't address because we were mindful of the fact that this -- this was kind of a step in our progress on this program relating to trying to bring it up to more of the common bar of our local area, but there's a lot of things out there.
the city of Austin has a process working on watershed protection that could result in more stringent requirements that we might come back and leap frog over at a later point.
so --
>> that was sort of my next question.
you mention would earlier the
>> [inaudible] e.t.j.
as it relates to what the city of Austin does?
>> in many ways it does.
we're not in lock step.
there's some things that the county doesn't require, wouldn't require under these requirements.
one of them being impervious cover limitations.
we sort of felt that that would take something more into a more involved stakeholder process.
>> but it has been our goal overall to have consistency with respect to setbacks and the like, and to the extent the city has their own process going forward right now which may influence setbacks, we're hoping to try to sort of reach the finish line about the same time in the same fashion.
>> given what appears to be a sort of limited stakeholder process, have you had input from stakeholders that questioned -- had pertinent questions that you've sat down and visited with the stakeholders about and worked any issues out?
>> yes.
there are some stakeholders that did comment on this over time and we, in fact, did have meetings.
I think some examples would be city of Austin.
we met with a group from the association of civil engineers.
we -- who were concerned with an initial draft that we had on the preparation of storm water pollution prevention plan.
a lot of conversations.
but I would say, frankly, that I thought we would get through all the solicitation of comments that we put out there, that we would have gotten more comments.
and -- but we didn't for whatever reason.
we felt we should look at it and we should offer almost a year now of opportunity to give us feedback.
we're starting to get a couple -- we got a letter I think just overnight from an advocacy organization that -- you know, it just came yesterday even though they've seen this and been reviewing this for a long time.
just examples of what was going on.
>> I would reit rate we had a stakeholder group of roughly 100 that has grown since then.
while there haven't been large stakeholder meetings, there's been ample opportunity for people to become aware what's going on.
>> is that group represented across the board different stakeholder interests?
>> yes.
>> everybody from homeowners to the real estate community.
>> yes.
yeah, people, the development community and engineering consulting community, not for profit environmental advocacy groups, governmental entities at state -- state municipal and district level.
>> speaking of opportunity to provide input, this is a public hearing.
if you would like to give comments please come forward.
give us your name, we would be happy to get your comments.
>> I'll goo first again.
my name is hank smith with Texas engineering solutions.
I'm going to be very brief.
I appreciate what the county is putting through here and I think we've got a good start.
I think there was a lack of input from a lot of people, the stakeholders.
when they first started sending out chapters, they sent a chapter at a time.
here's chapter 1, we're going to follow with chapter 2.
personally I didn't want to look until I had the entire package.
until you see how everything is going to fit together it's difficult to read one chapter at a time so a lot of us didn't pay final attention until you got the final set.
the final set came out between the thanksgiving and christmas holidays and everything was craze that I time of year and no one had a loss of chance to look at it.
now we have a set in front of us, this would be a good time to have see meetings and we can help set up that up through the aca and hba and rica and others and put together a stakeholder meeting.
I think that would be very helpful.
a few concerns I had reading through this, this seems to follow a procedural process that the city of Austin tried a year ago or so where all of the swift requirements go into your actual construction plans.
and we contacted the city of Austin, it was rolled in that way, and after really just a few months it seems like that was an unworkable solution and the sat has changed their process.
there's already a pretty good process administratively for how you administer it at the state level that's been in effect 20 or more years.
storm water prevention plan.
the administrator side is already there and the extent we can follow that administrative side, the technical criteria can change or fluctuate, but administratively this seems to put together a process, I've been talking with a few other people where we would have to follow one process of Travis County and another process at the state to get the same thing accomplished.
rather than spending our time and money dotting is and crossing ts and filling out applications forms, I would rather spend our time designing the water quality controls.
I think the cad would spend their time
>> [inaudible] administering a program.
if we work to develop a ground water conservation district in western Travis County, you wouldn't come in and create a new appraisal district and a new tax assessor-collector that would just look at that district.
you would use existing tools that are out there.
I think there's a lot of existing tools that can help with the program that we can help roll into this process to make it easier to function.
with that I'm available to answer questions and be a glad to sit down with a group of stakeholder and walk through and find out what the steps are the county is trying to administer and see if we can't find an easier way to implement this from our standpoint.
>> thanks for your assistance.
>> questions?
thank you very much.
>> you bet.
>> > good morning, I'm terry savvy, greater home builders of Austin.
one of the people I work for is hank.
thank you for the opportunity to provide some comments and he actually noted some of the issues or problems we have had with keeping up and providing input until now.
and frankly there's nothing like a public hearing to coalesce focus and get you to really pay attention and so we've started to.
let me begin by saying that I think the home builders association and responsible members of our industry would have no problems in complying with, in fact appreciate the opportunity to comply with e.p.a.
and tceq guidelines.
and just to reiterate what hank said to the extent those can be integrated and treated as one is single process, so much the better.
I would also say that when doing the takings impact analysis we would encourage you to recognize that anything in excess of those mandatory federal and state requirements does result in a cost and ultimately ought to be considered as part of that takings analysis.
as far as collection of fees, again one of the things we -- again, I'm no attorney, I don't play one, but I would encourage your legal staff to look at whether that kind of fee is statutorily approved and authorized.
again one of the things not exactly on point to the water quality requirements, but with the fact that the Travis County is going to mandate its requirements in the e.t.j.
of other municipalities, again, we worked with -- actually in cooperation with Travis County at the legislature a number of sessions ago trying to develop a process where the equivalent of the joint office between the city of Austin and Travis County would be applied into any municipality that choose to do so in one form of agreement or another.
some counties -- some municipalities seeded their authority, ceded their authority the county.
and I believe that's it.
I was trying to make notes as time was going along.
again, one of the issues or challenges is frankly we -- at least I'm more of a layman, I don't have the technical expertise people like hank do, but until we just now got our hands on one document I can tell you that the engineering community so far as we know, it's just now beginning to focus on it.
one of the things we appreciate is this is a hearing and there won't be final action until 30 days from now, and again, we would encourage the staff to sit down in more of a q and a kind of a format to allow us to get input and to -- not to affect or change the process because it's already written, but just to better understand what the final results, how the final implementation is going to work.
thank you.
>> do you believe you and your members will be able to meet with staff within the next 30 days?
>> within the next two weeks.
>> okay.
questions?
thank you.
>> thank you.
>> yes, sir.
>> my name is michael barrett.
I'm a professional of civil engineering at u.t.
and my area of research is storm water management.
I do projects for tceq, txdot, lcra, city of Austin and others.
I'm speaking today on behalf of the save Barton Creek association.
I think your staff has done a great job of pulling these elements together.
taken as a template, the city, lcra and state requirements, so there's not -- I don't think you are breaking a lot of new ground here.
I have three specific elements that I would like to make recommendation about.
the first having to do with erosion and sediment control.
the -- and in that I'm recommending that y'all adopt the performance standards for erosion sediment controls.
there is a natural hesitancy because e.p.a.
for the last couple of years has been trying to do exactly this through various fits and starts and so there's some logic that says let's wait and see what number they come up with and we'll adopt that.
however, I'd like to emphasize that what they are doing is going to adopt one number nationwide that will apply to whether or not you are discharging to the mississippi river or hamilton pool.
and my suggestion to you is that you look at the local receiving waters, their quality and the resources you are trying to protect and adopt a number of appropriate for this area.
as part of my comments I've done some analysis of the data during storm flows in Barton Creek and suggested a value to adopt.
other states have adopted criteria from california to vermont and both georgia annual alabama have adopted standards more strict than I've recommended for Travis County to adopt so there is a precedent there.
the second thing has to do with post-construction runoff controls.
I mean, we've always -- we've long had mandates to build controls to capture street runoff and the achille's heel has been inspection and maintenance.
it's a huge issue.
you can go anywhere, find controls that aren't maintained and aren't functioning properly.
I applaud the concept of the city having an annual permit that gets renewed, and that I would suggest as a variation on what they are doing is with that permit renewal application from the owner of the facility to include a letter from a licensed engineer or other qualified professional or an affidavit saying that the control has been maintained and it's in proper working order.
it's a way for you to transfer responsibility for the maintenance and enforcement back on the owner of the property instead of having you having an ever expanding staff to do exactly that same work.
this is the method used in harris county in houston so it's -- you have a Texas go by.
and harris county makes that information public so it's actually encourages the entrepreneur set so you can see who's permit is due and who hasn't turned in a letter, and for the people that form those companies that do pond maintenance, inspection, else, they have that ability to contact the people and reach out so it brings the private sick along in help ensure the controls you are mandating do work over the long term.
and finally, a lot of the research I've done recently has been on a paving material called a permeable friction course.
it's a two inch thick coarse at fault overlay and the reason it's used widely is when rainfall falls on it the water instead of flowing off the road on to surface of the pavement where it would be resuspended as spray and splash by vehicles, the water travels within the pavement layer.
and so that makes it a safer pavement and in addition it's quieter than normal pavement.
if you look at locally Travis County you can find examples on i-35, 71, now mopac, 2222, 620.
an entire variety of roads.
and the reason that you should be considering it under this topic is that you can also achieve up to a 90% reduction in the pollutant discharge just by doing it this way.
to the extent the county owns and maintains road, here's an opportunity when maintenance is required you can go back in, you can do a thin overlay with very little cost difference between this kind of asphalt and regular asphalt, achieve a huge pollutant reduction without buying additional right-of-way, building ponds or other facilities you have to maintain.
those are my three comments.
thank you.
>> thank you.
>> questions?
thank you.
one more speaker and four available chairs.
if you would like to give comment during this public hearing, please come forward.
final call.
final speaker.
>> my name is john beal.
I'm with the save Barton Creek association.
and I'm also with a new organization, the wilbarger creek conservation clients.
I would like to first play a video.
this is the six-inch storm event we had on January the 25th.
this is in east -- in east Travis County.
we've been following this rule making process for a year.
we're very encouraged by the application of controls and regulations that will help those who create problems, bear the responsibility for ensuring that those problems do not become a burden on their neighbors and on the taxpayers.
in the years to come.
now, we feel like the long-term impact of these regulations to prevent polluted storm water from entering into the public waterways is the financial impact is insignificant.
the developers and the folks will be impacted by these regulations.
do not prosper because -- or fail to prosper because of our environmental regulations.
it's the business cycle.
if they hit it at the right time on the business cycle, they are very successful.
if they hit it at the wrong time they -- they go bankrupt.
and we've seen cycles here in central Texas in the late 80s, again in 2007.
our long-term best interest will be served by a strong set of environmental rules.
the time is short, especially in eastern Travis County.
I will be back during citizens communication to show you one of the problems that we're faced with in this same area.
thank you very much.
we encourage you to move rapidly and forcefully in adopting the strongest possible rules that -- that you can.
thank you.
>> thank you.
>> any questions for mr. Beal?
thank you.
any brief closings comments?
>> just one thing, judge.
we received earlier this morning a pretty extensive letter from the Texas aggregate and concrete association.
you will be getting that along with other correspondence but primarily they are questioning our legal authority to do a lot of this.
they feel we're more stringent than we need to be.
those are issues we'll have to work through.
>> let's invite a meeting with staff and that group.
don't need members of the Commissioners court there, do you?
you don't need us getting in the way, do you?
>> that's fine.
>> if you choose to join us, that would be fine.
>> make it happen.
>> okay.
>> with that I move the public hearing be closed.
>> second.
>> all in favor?
that passes by unanimous vote.
thank you all very much.
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