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AG agrees with bulk of Travis’ development-based water restrictions

Thursday, June 14, 2012 by Michael Kanin

Texas Attorney General Greg Abbott has issued an opinion in agreement with lion’s share of permanent water-use regulations enacted last January by the Travis County Commissioners’ Court.


Abbott weighed in on those rules in response to a request from the chair of the Texas State House Committee on Natural Resources, Alan Ritter (R-Nederland). Abbott sided with four out of five of the new Travis County water-use restrictions.


Though it is not legally binding, the opinion affirms the better part of an attempt by commissioners to get a handle on water consumption in the unincorporated portions of Travis County by imposing restrictions on water use through its development review process. The rules include a number of limitations on both how developers can use water, and where they can draw it.


The opinion dismisses most concerns over whether the county could legally enforce the development-based water rules commissioners imposed. However, the non-binding nature of the opinion still leaves the possibility for a legal challenge. And on the other hand, the county could choose to ignore Abbott’s interpretation of one regulation he objected to: restrictions on use of surface water.


Indeed, the county would have to take specific action to change its new development water use restrictions to align itself with Abbott’s opinion. After a legal briefing in executive session Tuesday, commissioners took no action with regard to their water rules.


Commissioners’ January action on the rules came after a lengthy and at times contentious public input process. In the end, they adopted restrictions on the use of amenity ponds – water features constructed for mere aesthetic value. Also, projects that run over five lots now have to meet tougher water use requirements concerning elements such as impervious cover. The development community opposed many of the restrictions – especially if the subdivisions used surface water, such as from Lake Travis or another source, instead of groundwater. 


Commissioners also mandated that developers include a water-use plan. At the time, Commissioner Karen Huber noted that the plan would “require…demonstrating an adequate long-term source of water for homeowners in a subdivision.” Huber added that the restrictions would require all new subdivisions in the county’s unincorporated regions to be constructed with “sufficient water storage, distribution lines, and hydrants to fight fires.”


In addition to the rules, the new approach to water use restrictions also allows the county to assemble a map of all of the groundwater wells in the region. That should give the court – or any other interested party – a better picture of how many so-called straws have been dipped in to area aquifers.


Just before commissioners voted on the water use restrictions, Nancy McDonald, director of regional Outreach for the Real Estate Council of Austin, urged them to exempt developments that rely on surface water. (See In Fact Daily, Feb. 1, 2012.)


Ultimately, it was the regulation of the use of surface water that Abbott objected to. “(A) Commissioners Court is not authorized to enact water availability requirements with regard to surface water,” he wrote. But Abbott agreed with restrictions that the commissioners had put on developments that rely on groundwater.


Questions? Comments? Tips? Email Mike Kanin at

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