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Ritter seeks AG opinion on looming Travis development restrictions

Tuesday, November 8, 2011 by Michael Kanin

The chair of the House Committee on Natural Resources has requested an opinion from Texas Attorney General Greg Abbott about pending ground water use restrictions in Travis County. Rep. Allan Ritter (R-Nederland) asked Abbott whether members of the Travis County Commissioners’ Court can legally enact restrictions on development that would rely on groundwater from multiple natural sources—including the Edwards and Trinity Aquifers and the alluvial aquifer that runs along the Lower Colorado River–within the county.

 

The Attorney General’s office has 180 days to respond to the request.

 

Commissioners are scheduled to take up the issue in the executive session portion of today’s meeting. There, they will likely consult with the county’s legal team in advance of a formal response to the Attorney General’s office.

 

“I’m optimistic that we can go through with this,” Commissioner Karen Huber told In Fact Daily about the pending new rules.

 

Court members voted at the end of October to extend a temporary ban on development that uses groundwater from the Trinity Aquifer. That ban was set to expire last week (See In Fact Daily, Oct. 26, 2011). Though the extension carries through until the end of this calendar year, county officials hope to have a more permanent solution before then.

 

Ritter’s letter could derail Travis County’s plans. In it, he makes four main points: three of these deal with the court’s authority under a section of the Texas Water Code that addresses priority groundwater management areas or PGMAs. The fourth is a query about a new law that went into effect on Sept. 1.

 

In his letter, Ritter wonders whether “a county-wide groundwater management would also apply to areas within the county that have not been designated as a PGMA.” In what appears to be a reference to recent efforts by Rep. Paul Workman (R-Austin), Ritter also asks “whether a county commissioners’ court may enact a groundwater management ordinance…after (the Texas Commission on Environmental Quality) has initiated a process to create a groundwater district.”

 

In closing, Ritter refers to Senate Bill 332, which he says “clarifies and codifies…a landowner’s ownership of and right to produce groundwater, qualified only by groundwater conservation district regulations.” He asks Abbott whether a county commissioners’ court may enact a groundwater management ordinance that unduly restricts the sale and/or use of a landowner’s vested property rights in groundwater.

 

A PGMA is, according to the TCEQ web site, “a program to identify areas of Texas experiencing, or expected to experience, critical groundwater problems.” It is often a precursor to a groundwater conservation district, a body that is designed to regulate the use of groundwater.

 

Though western Travis County received PGMA status more than two decades ago, it still lacks a groundwater conservation district. In September, Workman told the court that he had initiated an effort to implement a district, and would introduce legislation in 2013 that would bring about its creation. Court members seemed skeptical.

 

“We’ve been 20 years trying to get that by representatives of both political parties,” Huber told In Fact Daily at the time. Earlier that morning, she reminded the court – and Workman – that Travis is one of the only counties designated as a PGMA that does not have a groundwater district.

 

Workman has been a vocal opponent of the potential new Travis rules. Though he doesn’t serve on Ritter’s committee, he was copied on the request. State Sen. Kirk Watson (D-Austin) was the only other member of the Travis County legislative delegation afforded that courtesy.

 

Workman told In Fact Daily that state law favors establishing groundwater rules through conservation districts. “If you read the statute, the statute is very clear,” he said.

 

As for whether the county is reaching too far with the rules, Workman said, “I don’t know for certain. It’s very possible that what they’re doing may well be outside of their jurisdiction.”

 

Travis’ director of development services Anna Bowlin told In Fact Daily that the county believes that it has the authority to issue the rules. “Otherwise,” she said, “we wouldn’t have proposed it.”

 

Though Bowlin expects some changes as the court moves forward with its process, she says that the county’s attorneys believe that, even in its current state, the rules would stand.

 

Huber suggested that the request for an opinion was a stall tactic. “I suspect that the effort to get (Ritter) to write that letter came from another source,” she said, without naming who that might be.

 

“I fully believe that we have the jurisdiction to do this.”

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