San Marcos Mercury | Local News from San Marcos and Hays County, Texas

August 20th, 2009
County passes controversial development regs

Grant Jackson of Naismith Engineering, left, and Henly property owner Jimmy Skipton, right, discussed new property development regulations this week with the Hays County Commissioners Court. Photo by Sean Batura.

News Reporter

New Hays County development regulations went into effect Tuesday, imposing tougher requirements on some Hays County residents who wish to subdivide their land, install septic tanks and build on floodplains, among other related activities.

The regulations didn’t pass without last-minute consultations between county commissioners and attorneys to be sure the new provisions can stand up to legal challenges.

The new development regulations, three years in the making, were finalized after months of public meetings in which residents debated the economic and environmental merits of the proposed rules.

Commissioners settled on a six-acre minimum lot size for new subdivisions served by individual private water wells and located in the Hill Country Priority Groundwater Management Area (PGMA), doubling the previous minimum. Water conservation advocates asked commissioners to pass an even larger minimum lot size, while property rights advocates asked the commissioners to at least stay near the previous minimum.

“The problem is you can’t pay as much for the raw land if it’s reduced in terms of the ultimate, salable units,” Dripping Springs resident W.F. Smith said at Tuesday’s commissioners court meeting. “It’s like anything, whether you’re making cookies or cars. If you can’t sell the car for more money than your raw materials cost, your raw materials have to go down. That’s what these rules do, is restrict growth. That’s the goal.”

Before the court approved the development regulations, Smith warned that the Takings Impact Study, a document required by the Private Real Property Preservation Act (PRPPA) and created by consultant Naismith Engineering in December, is flawed because no one associated with the Texas Real Estate Commission or the Texas Appraisal and Licensing Board was hired to examine the new regulations’ effect on the market value of the county.

“Those are the people that are qualified in the State of Texas to offer opinions of value, not engineers,” Smith said.

Smith said a complaint had been filed with the Texas Appraiser Licensing and Certification Board over Hays County’s new development regulations. In response, Naismith Engineering consultant Grant Jackson, the county’s consultant on the new regulations, directed the court’s attention to a provision of the PRPPA exempting government actions that are “under the political subdivision’s statutory authority to prevent waste or protect rights of owners of interest in groundwater.” The PRPPA also exempts government actions that are “designed to significantly advance the health and safety purpose.”

However, Smith’s comments prompted commissioners court members to make last-minute consultations with attorneys before finally passing the regulations, despite a document published by the commissioners court less than two weeks ago that claimed the proposed regulations are in accord with state and federal law.

The county has thus far paid $46,345 to Naismith Engineering for work on the development regulations. Jackson told commissioners Tuesday that Texas Commission on Environmental Quality (TCEQ) regulations may require minimum lot sizes higher than six acres in certain instances.

“That really concerns me,” said Hays County Precinct 1 Commissioner Debbie Ingalsbe (D-San Marcos). “That’s one of the issues that I hope we can work through.”

Ingalsbe had expressed concern during the last few months about the minimum lot size resulting in many properties being priced too high.

“This has been a difficult decision for me,” Ingalsbe said. “I’ve talked about affordability – a big issue for me. But one word continued to pop into my mind: sustainability. I am going to be supportive of the lot size. Is this the answer to the problem? No, not by itself. This has been a struggle in my mind. I don’t come to this decision lightly at all.”

Hays County Precinct 3 Commissioner Will Conley (R-San Marcos), who had long expressed support for a five-acre minimum lot size, called the new regulations “a living document,” with issues that need to be resolved to protect land value and promote operational efficiency.

“I have no doubt we will have some (rules) that are flawed and wrong as we move forward … but it’s an organic document,” said Hays County Precinct 2 Commissioner Jeff Barton (D-Kyle). “We can adapt.”

Residents from western Hays County in the past few months have appeared before the commissioners court to give accounts of wells gone dry and declining springs, which, they said, are partly the results of too many people pumping water out of the Trinity Aquifer.

“Lot sizing has to do not with business plans, not with other things,” said Driftwood resident Susan Cook at the Aug. 4 commissioners court meeting. “It has to do with aquifer recharge. It has to do with whether or not a piece of land can replenish with rainwater the amount of water that’s going to be pumped out by the family that lives on that property. And that’s the only thing that you should be considering, is aquifer recharge.”

The Trinity Aquifer lies beneath the region of Hays County encompassed by the Hill Country PGMA. Nine counties, including more than half of Hays County, lie within the PGMA. A PGMA is a zone the TCEQ finds is “experiencing, or is expected to experience, within 25 years, critical groundwater problems including shortages of surface water or groundwater, land subsidence resulting from groundwater withdrawal, and contamination of groundwater supplies.”

Henly resident Jimmy Skipton appeared at the same meeting to support a smaller minimum lot size than was adopted. At another commissioners court meeting in June, Skipton said the government currently allows his 137-acre tract to be subdivided into 1.5-acre lots. He said his family’s welfare may someday depend on them getting the best possible price for their land.

“If I came in here and said, ‘Let’s increase our tax base by 40 percent,’ y’all would say ‘You’re crazy, we’re not doing that,'” Skipton said at the meeting two weeks ago. “(If I said) ‘Let’s go up eight cents per $100, I think we need the money,’ Y’all would say, “We can’t, that’s way too much.’ But you’re sitting here willing to take our lot sizes up four hundred percent, and everyone seems to think that’s OK, (that) it isn’t a tax. But it is on me.”

The six-acre minimum lot size requirement would not apply to subdivisions of five lots or less in which all lots average at least two acres, or to subdivisions that are ten lots or less in which all lots are larger than ten 10 acres. Previous regulations specified minimum lot sizes in the PGMA of 1.5 to two acres for well owners with advanced wastewater systems and two to three acres for owners with conventional systems in the PGMA, depending on whether the land is also in the Edwards Aquifer Contributing Zone. The proposed minimum lot size requirement would also apply to new manufactured home communities.

Conley said last week that he was most comfortable supporting a five-acre minimum lot size, but had told his colleagues he could compromise at 5.6 acres. He said he was most concerned with the “smaller people.”

Said Conley, “We can develop rules all day long that cover large developers and developments – those are easy rules to do. They have professional teams, they have lawyers and engineers and everybody that can work through our rules and make it work for them – within reason, of course. Within reason. But it’s these smaller family-owned, family-oriented (people) that are caught up in a lot of the rules and regulations, that are usually hurt and squeezed the most and can’t work through it.”

Barton (D-Kyle) said last week that he preferred a 5.61-acre minimum lot size.

“Even going to five would be huge,” Barton said last week. “Because currently, up in the western part of the county, it’s a two-acre minimum. We long ago imposed – I led the effort 10 years ago to impose a much higher standard over the Edwards (Aquifer recharge) area in the eastern part of the county, where in similar kinds of lots using wells and septics, we already have a five-acre minimum. And we were the first county in the state to go there. The rules were groundbreaking rules when I led the effort to write – I actually did write much of what was in it, because we didn’t have money for a consultant back in those days.”

An earlier version of the proposed development regulations specified a minimum lot size of 6.5 acres. The governing body of the Hays Trinity Groundwater Conservation District (HTGCD), which the state created to manage groundwater production in the Hays portion of the PGMA, supported a nine-acre minimum lot size. HTGCD’s wishes were thwarted when Naismith Engineering recommended 6.5 acres to the commissioners court.

Two HTGCD board members said the calculation resulting in the 6.5-acre figure assumes 75 percent of rain entering the aquifer should be reserved for human use. They said a Texas Water Development Board report by Robert Bluntzer recommends that 10 percent of recharge be reserved for pumping. HTGCD Board Member Andrew Backus (District 3) said Bluntzer recommended minimum lot sizes of 25 acres in the Hill Country.

At around 11:30 p.m. on July 21, after more than five hours of development regulations discussion and public comment at Wimberley City Hall, Ford challenged her colleagues to support a minimum lot size requirement of six acres. With midnight approaching and only 20 people left in the room out of the original 200 or so, commissioners court members were not yet ready to come to a consensus. At the same meeting in Wimberley, Hays County Judge Liz Sumter (D-Wimberley) joined Ford in supporting six acres, though she said her preference was nine acres.

Sumter said last week that the minimum lot will probably be increased in future years to be in accord with the planning efforts of the Texas Water Development Board (TWDB). In the next year, the TWDB will issue a managed available groundwater number that will set a threshold for the number of water pumping permits issued by the Hays Trinity Groundwater Conservation District, which has imposed a moratorium on issuing new permits.

“Existing groundwater supplies — the amount of groundwater that can be produced with current permits and existing infrastructures — are projected to decrease 32 percent between 2010 and 2060, from about 8.5 million acre-feet per year to about 5.8 million acre-feet per year,” states the TWDB’s latest State Water Plan. “Groundwater availability — the amount of water from an aquifer that is available for use as determined by the planning groups — is projected to decrease 22 percent, from 12.7 million acre-feet per year in 2010 to 9.9 million acre-feet per year by 2060.”

Another controversial provision in the new regulations is a requirement for landowners developing property 50 acres or greater, or land with 50 or more dwelling units planned, to allow certain government entities to install and maintain groundwater monitoring wells on the property. Costs associated with the wells will be borne by the government entities that install them.

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0 thoughts on “County passes controversial development regs

  1. Commissioner Ingalsbe, as usual, and Judge Sumter, got it right in the comments above. Economic considerations are not really that hard to understand. The issue is what is durable for the future–“SUSTAINABLE.” What is not sustainable, by definition, won’t last. Won’t endure. Won’t be economically feasible, for the poor end user, long after the developer is in some other place that IS. What will water cost in ten years, at the rate it’s being hogged and wasted? What will traffic do, after all the roads that can be publicly provided? Where can the “outliers by choice” go when the crowd fills in after them? Commissioner Barton long ago thought about these issues and pioneered bringing them to Hays County, not yet a suburb of Austin.

    It’s an issue virtually from coast to coast around metro centers and former metro centers that are now wastelands. Do people bother to consider the massive regional work done and being done by Envision Central Texas (.org)?

  2. the science to truly support 6 acres insted of 5 is not really there.

    It will be interesting to see how the complaint with the appraisal board works out. Not everyone in the western part of the county uses groundwater.

    how much of the money stolen from the people on the edwards and east side by the Hays-trinity thru their double taxation/taxation without representation will be used to drill those monitoring wells on every 50 acre tract that gets subdivided ?

    These rules are very complicated and very poorly understood by the parties involved with drawing them up. Unfortunately it appears that certain special interest groups got into the process and put things in mainly for themselvs.

  3. Andy, who are the “special interest groups” who “put things in mainly for themselvs” in regards to these new development regs? I think you mean concerned citizens who want to protect our quality of life here. Its a perversion of reality that you paint environmentalists as “special interest groups” and that you defend antiquated notions of property rights that benefit only developers, but I guess they’re the ones who employ you, so you are really the ‘special interest group’. Look at development regs and property rights around the rest of the country and the rest of the developed world – your tired arguments were lost decades ago. Unfortunately, Texas is still the wild west when it comes to regulating development and its not going to change until the rivers have dried up, the aquifers are depleted, and this becomes Chihuahua Desert. at least maybe then we’ll get some cool Lampropeltis species up here. Coleonyx would be cool too.

  4. My three neighbors and I had to put a gauge/meter on our “municipal” well, and now we must make monthly reports to the Edwards Aquifer Authority (EAA.) After a year of monitoring our collective usage, we may be required to install individual gauges to monitor our individual water use and pay for fines, penalties, and overuse (possibly $1,000’s.) In essence, our water rights have been usurped. If you are sharing a water well and not registered, EAA will eventually find you and charge you fines and penalties.
    Our water problems could be alleviated if we could drill individual wells at approx. $15,000 each. Out here on “the Rock” it can cost that much and more. Then, we could use all the water we wanted and only pay electricity, like we have been doing for the past 30 years.
    The problem, besides the money, is this does nothing to help limit water usage. If something isn’t done, we all risk losing access to any well water at all.
    I don’t believe anyone intentionally wastes large amounts of water, but leaks and waste do happen. There must be some mechanism to hold people and municipalities accountable. I support individual gauges for every household on “municipal” wells. Just like electricity and gas, water must also be monitored and regulated on an individual household basis
    Perhaps, I did not understand the last line of the article, “Costs associated with the wells will be borne by the government entities that install them.” What does the government pay for? No government entity offered to pay for our gauge(s,) much less a new well, but then, we don’t have 50 acres. The big guys get to take our water and our taxes will pay for monitoring it?
    Until the EAA gets a handle on how much water is being used where, how can they realistically estimate our future water needs, availability, and realistic restrictions?
    I think incentives, if not requirements, are needed for rainwater collection. Perhaps credit could be give for those who use less than average household water allotments.
    The lady, who said we must rethink how we think about water, got it right. Growth must be controlled and limited because of water availability. Perhaps S.A. will develop other water resources and global warming will raise the oceans and water tables, but until that time, unlimited development, without restrictions, threatens the status quo for all of us.

  5. What a statement! “unlimited development, without restrictions, threatens the STAUTS QUO for all of us.” I think that really goes to the heart of the controversy over the development regulations for many people. Once they get here, they really don’t want others to move here as well. It comes down to a fear of change – and what that will bring.

    I believe in controlled growth and rational land use and conservation of water – especially in times of drought. But regardless of how much you love the hill country, it is changing. And there is nothing you can do to stop that. I hate it too. I’ve lived here over 25 years. But I have come to the realization that there were changes to the area long before I stepped foot here – and they will continue long after I am gone. It’s called life.

    The best we can do is try and put in some rational regulations – but regulations to stop it will never happen.

    And yes – environmentalists are special interest groups. Get over it. It’s not necessarily a dirty word, any more than politics or government are bad words.

    P.S. – when leaks and waste of water happen – it’s your responsibility to try and stop them, regardless of intention, particularly during drought.

  6. I guess I’m a newcomer to these parts, but in the 10 years since I moved here I’ve seen the population explode and the property value (of my land on ‘the rock’ at least) increase about 200%. Some sort of regulation of growth and resources is needed, even if imperfect. Its better than no oversight at all.
    Andy, I apologize for my tone above – too much coffee. Your expertise in the natural history of these parts is well known and I know you care about this area as much as anyone else.

  7. Simple question – I think. Many people own property of less than six acres which currently does not have a well. Will the new restrictions affect their ability, or the ability of anyone they sell the property to,to have a well drilled?

  8. I do not believe it does, Shirley. I am pretty sure the rules only apply to newly platted pieces of property. Now, if the property has never been platted and you want to further divide it or platt it for any reason, then you may have problems.

  9. COS is correct. New subdivision lot size standards only apply when you try to subdivide or in some cases resubdivide property.

  10. Hays County, among all the counties in the Region, has geographic, hydrological, and topographic, as well as geologic profiles which define the “carrying capacity” of the land for various purposes–residential, farm and ranch agricultural, commercial, and of course more intensive uses. The soils are typically very thin and highly erodible, as well as rather alkaline because of the limestone substrate. Because of certain clay mixes, the land often has high “shrink/swell coefficients,” and is thus rather unstable. Grades or slopes tend toward the extreme, which means surface water and rain are hard to contain or to detain. Pollutants are a serious threat.

    The land is near semi-arid, which means sparse and seasonal rainfall and aquifer recharge. Thus, historically, Hays and surrounding counties tend to be erratically provided with water, with long dry intervals. We are both drought- and flood-prone, ironically.

    Add to this the amount of cedar or Mexican Juniper which dominates, and which is itself a voracious consumer of groundwater. The problem emerges then of undependable and sporadic water supplies, both on the surface and in groundwater reservoirs. If we are to sustain the historic priority of uses and provide new additional resources for growth, especially dense, rapid, and scattered growth, the issues become water and facility cost and sustainability over time.

    In the Trinity and Northern Edwards aquifer areas, as in the much larger Balcones Fault Zone Edwards to the south and west, conditions favor increasing scarcity of usable water supply. From rainfall catchment basins to recharge formations to municipal facilities to pumps, springs and wells–not to mention the many creeks which are called on for uses from goat-raising to aesthetic or recreational uses, the system has a definable carrying capacity, above
    which man-made shortages and periodic drought conditions simply cannot supply more.

    As with the Balcones Edwards, the solutions follow cost, with better management the cheapest alternative, followed by conservation and re-use. The most difficult, long-term and costly measure is to add to the “reliable yield” of water per year by adding additional supply, through dams, reservoirs, and pipelines. Hard choices.

    All of these issues confronting us now have as an impediment the fact that both English and Spanish “common law,” and in the Texas Constitution, groundwater and surface water and surface water are managed separately. Water in the ground and available for pumping belongs to the users under whose land it passes. As a result, in an open-system. limestone karst formation, since water flows underground quickly through porous rock formations, the landowner with the “biggest straw” gets and can legally claim all the water he can pump “without waste.” Surface waters, however, are considered separately, and can be bought and sold or allocated by permit, as property of the State.

    Ultimately, pressure on supply through growing demand will create conflicts such as the present one, where users are basically pitted again st each other in interest. It is thus we see friction between Austin, in the Colorado Basin, and San Antonio, in the Guadalupe-Blanco Basin, over availability and cost of transfer via pipelines to balance supplies and support huge (often “sprawling”) suburban and ex-urban growth in their systems. Factories and power plants magnify the problem.

    The conflicts of the metro areas are mirrored in rural areas, where there is not a vast cash reserve to build facilities, but where small subdivisions can find their interests pitted against each other, their neighbors, and nearby municipalities. The counties and the Special Water Districts lack both the financial and regulatory structures necessary to provide equity. They are unable to jointly manage ground and surface resources for maximum yield. They cannot fee water use at some “market value.” They have little authority over permits or taxes or user charges. This is a vast hole in current and historic Texas law which worsens conflicts. Thus one sees “Water hustlers” show up periodically with schemes to move in new supplies from afar, at vastly higher prices. Greater County land-use regulatory power could help, by guiding growth to maximize available resources.

    Until the Legislature acknowledges these problems in rural areas statewide which abut metro areas, we will continue to argue over how large lots can be, and how many wells can be drilled, usually with ongoing strife and unsatisfactory resolutions. The BIG clash will come.

  11. The whole notion of carrying capacity based on water availability flies out the window, however, when you pipeline water into an area like the hill country. Suddenly, an area of land that could “sustainably” support X households on grounwater alone can support ten times that many households on imported water.

    Remember what’s going on here at the end of the day: Environmentalists (and others) are using the fact of limited groundwater availability to try and control development. That’s why they got so furious when Joe Beal and the LCRA did an end run a few years ago and pipelined water in to the Dripping Springs area.

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