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EAA + TCEQ = ??? 

Finding a little strength in numbers

Driving west on Loop 1604 from 281 to Huebner, you’ll pass grocery stores, strip centers, discount department stores, banks, churches, hotels, and fast-food joints. A few vacant lots on this drive through the middle of the Edwards Aquifer’s Recharge Zone stick out like green thumbs, but they won’t stand empty for long. Among the mesquite trees and brush on the southern frontage road, a developer’s sign boasts “Shopping Center Coming Soon.” A block away, another reads, “Coming Soon: HUEBNER AT 1604. Retail-Padsites-Office.” On the north side of the loop, telltale signs of imminent construction are scattered in the overgrown grass: Temporary fencing, lumber, and massive yellow-and-black land-movers wait to flatten the earth for rooftops and parking lots — otherwise known as “impervious cover” — the nemeses of the Edwards Aquifer Recharge Zone.

Something wicked this way comes?

A decade ago, Loop 1604 marked the outskirts of San Antonio. Now, its northern reach is like a strip of Anywhere, America, and is quickly being developed to capacity. But it’s not just San Antonio that’s losing the natural filter that protects the aquifer. As the surrounding Hill Country communities continue to grow, development is inevitably spreading westward toward Medina, Uvalde, and Kinney counties — and deeper into the Recharge Zone, which arcs from central Kinney County to central Travis County, just west of Austin. About 85 percent of the property over the Recharge Zone in Bexar County is either developed or reserved for development, but environmentalists are concerned about the westward expansion, much of which will continue along the most sensitive areas of the aquifer. And once the green space is developed, there’s no getting it back.

The Edwards Aquifer Authority spent the last decade protecting the amount of water pumped out of the aquifer, and over the last 18 months has developed a philosophy statement that includes protecting water quality, too. The EAA’s board of directors has wrestled with two options: either write its own rules for development over the Recharge Zone, or work with the Texas Commission on Environmental Quality on enforcing its somewhat looser regulations.

Last week, the EAA’s board of directors took a cautious step forward by deciding to partner with TCEQ, rather than enact its own rules. Environmentalists who are fighting to protect the aquifer concede that working with TCEQ won’t hurt anything, but they say it won’t help enough.

“`TCEQ` has weak rules, and they don’t enforce them. That’s my complaint,” says George Rice, a groundwater hydrologist and EAA board member, who strongly supports the EAA enacting its own regulations. “The main thing we have to do to protect the aquifer is to limit development over the sensitive portions of the aquifer.”

TCEQ’s rules don’t limit impervious cover, but instead mandate mitigation procedures to offset impervious cover that exceeds 20 percent. Also, TCEQ rules that specifically address developing and conducting business over the aquifer don’t include policies about the use and storage of pesticides and other chemicals.

One faction of aquifer stewards want the EAA to enact rules that would limit all development — regardless of its use (residential, commercial, or industrial) — by putting a cap on impervious cover at 20 percent. Their recommendation allows for some mitigation efforts so developers could reach a maximum of 30 percent non-porous cover. They could, for example, dedicate additional undeveloped property in the same watershed as the developed greenspace.

But if the EAA enacted those rules, it would likely face a litany of lawsuits, said EAA General Manager Robert Potts. Developers could sue under the Private Real Property Rights Preservation Act, which prohibits governmental agencies from passing legislation, ordinances, or policies that reduce property values by 25 percent or more. The City of San Antonio is wrestling with the same issue as it decides whether to beef up its own impervious-cover regulations.

Potts says the decision to team with the state was a pragmatic one. “I think there’s a lot of people who think, with some justification, that `TCEQ’s rules` need to be stronger, but one thing about the TCEQ rules is that they apply over the entire Recharge Zone.”

And that’s no small matter. New rules introduced by the EAA (or the City of San Antonio `see “Pushing Water Through a Maze, June 14-20, 2006`) would only apply to land where the development process hasn’t already begun. Bulldozers and cement trucks aren’t the first step in development; it begins with filing for a building permit, or even having a parcel of land platted (a process by which the City approves a very basic site plan that might show only lots and roads within a proposed subdivision). Once that process has started, the land is exempt from subsequent EAA rules.

TCEQ’s existing rules, on the other hand, apply to all property over the Recharge Zone — without exception.

“It’s a question of, do you go with rules consistent over the whole Recharge Zone that apply equally, or do you adopt rules that may be more stringent, but don’t apply everywhere?” Potts said.

But grandfathering may be the least of EAA’s problems if it passes its own rules. Created by a 1993 bill to protect the quantity of water taken from the aquifer, the EAA must be wary of the Lege, for it can change or eliminate the agency’s power altogether.

In recent legislative sessions, a series of bills has been directed at tearing down the EAA’s power. Kenneth Armbrister, the state senator who wrote the 1993 legislation creating the EAA, introduced bills in the most recent regular sessions that would have taken away the EAA’s power to regulate water quality. Other state congressmen have also introduced legislation that has whittled away at the Authority’s authority.

Even San Antonio’s Robert Puente, the chairman of the House Natural Resources Committee who has gone to battle for the EAA, says the EAA should simmer down.

“They do have these water-quality powers, but if they exercise them to the extent of implementing 15 percent impervious-cover rules, then that’s when I think the Legislature will come around and either modify that power or specifically say they can’t do that,” he said. “I think they should try to assist TCEQ in implementing the existing Edwards Aquifer protection rules. Where they could get into trouble is if they go into impervious-cover rules because that’s more of a land-use regulation than it is water quality. So just be careful what you do, because you might get that part taken away from you.”

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