Up From the Slime – Commissioners Push for Water Quality Rules

Illustration By Doug Potter

It arose from the slimy, green algae tainting the once-clear waters of Lick Creek, striking fear in the hearts of developers as it oozed toward the Travis Co. Commissioners' Court. It was … the Travis County interim water quality rules!

Last week, county commissioners were poised to vote on a set of interim water quality rules governing commercial developments and residential subdivisions larger than 20 acres in unincorporated parts of the county. But after a frenzied week of meetings with terrified landowners, commissioners instead voted to adopt a 90-day freeze on applications for new developments. Nevertheless, the debate over the now-dead interim rules set the stage for the battle over the permanent ones to come. While the rules were not entirely inspired by the Lick Creek algae bloom that has been infuriating county residents in recent weeks – the push for some kind of county-level regulation dates back at least to last fall, when the county decided against a development moratorium favored by environmentalists – the creek, and its sludge, casts a long shadow over the discussions. Even the developers arguing against the rules agreed that overenthusiastic fertilizing and poorly executed pollution controls in the neighboring West Cypress Hills subdivision had mucked up the creek, and Pct. 3 Commissioner Gerald Daugherty returned time and time again to the algae bloom as evidence that inaction is no option. "I think that what we have in place is inadequate," he said. "I'm not happy with the status quo."

Even if everyone agreed that the county needs to do something, however, consensus on the best "something" to do was predictably elusive.

The interim rules, as initially drafted, combine elements from city of Austin water quality rules, the Lower Colorado River Authority rules governing pollution in Lake Travis, and the Texas Commission on Environmental Quality regulation of the Edwards Aquifer. They require developers to meet either TCEQ or LCRA rules during construction, to reserve buffers (strips of undeveloped land) around sensitive environmental features, and to install pollution controls that remove 70% of sediment and certain pollutants from the runoff of a completed development. The rules were to be "interim" because the commissioners are waiting for the results of three separate regional planning processes to shape their permanent rules. Meanwhile, however, the county doesn't want developers to rush every scrap of county land into the development pipeline so they can be grandfathered out of whatever commissioners finally come up with. This is what inspired Pct. 2 Commissioner Karen Sonleitner to push for a rapid vote last week; and it's the logic behind the 90-day freeze. "I've reached a tipping point," she said. "This morning we had 443 acres come through the commissioners court. Two weeks ago it was the same thing. It just keeps marching on."

But in the meeting Daugherty held with developers and environmentalists Wednesday to try to reach a compromise, the developers argued that the interim rules, hastily thrown together as they were, were sloppy and duplicative of existing regulation. After all, argued landowner Ted Stewart, plenty of rules already exist; the problem is that no one is enforcing them. "If we don't have enforcement now, what will adding another layer of rules do?" he asked.

A lot, said County Attorney Tom Nuckols: If the county wants to be able to step in to battle the Creature from the Poorly Engineered Subdivision when the TCEQ and LCRA won't, the county needs its own regulations. But on top of the enforcement issue, the developers also complained that by pulling bits and pieces of regulation from so many sources, the county had created a regulatory hodgepodge worthy of Dr. Frankenstein. Everything would be simpler, suggested engineer Hank Smith, if the county simply adopted TCEQ or LCRA rules wholesale for now, and left the mixing and matching for the permanent rules, which will be put together at a more leisurely and well-thought-out pace.

But taking that route would also be a huge boon for developers. The reason? Buffers – the city requires them; LCRA and TCEQ don't. When land is left in its natural state as a "buffer" around streambeds or other sensitive features, it can filter sediment and pollutants from runoff before it reaches the water supply. But it also means developers can fit fewer houses on any given piece of property, and that cuts into profits – especially since home sites with proximity to riverbeds or dramatic (but erosion-prone) hilltop vistas fetch the best prices. As Wednesday's discussion turned from enforcement to buffers, several landowners argued that requiring buffers would dramatically devalue their property. That prompted an outburst from engineer Lauren Ross, who attended the meeting to support the rules.

"I'm hearing the very same people say that these ordinances are duplicative and unnecessary, and that they will affect property values," she said. "I'd like to point out that they can make one argument or the other, but not both."

Just as developers can't support a plan with buffers, Ross said environmentalists can't support a plan without them. ("That's the one thing you've got in these rules that makes a difference," she said.) Developers prefer "engineered" pollution controls, such as man-made ponds that collect sediment, because they don't affect how many homes you can put on a property, but Ross argued that poor installation or maintenance render them notoriously ineffective. Everyone at Wednesday's meeting agreed, for example, that the Lick Creek debacle was largely the result of improperly erected silt fences. And because the commissioners have long indicated that impervious cover limitations are off the table, environmentalists insist on buffers as the only other reliable protection.

While Tuesday's vote skirted this impasse, it really just prolongs the commissioners' agony, as the high-stakes debate over interim rules now becomes a really-really-high-stakes debate over permanent ones. It's a debate that will no doubt entail a good deal of ugliness for many southwest Travis Co. stakeholders – even those without a Swamp Thing in their creeks.