Greater Edwards Aquifer Alliance releases report on impacts of Senate Bill 2038 on land use, water in Central Texas

HAYS COUNTY — A local aquifer that provides drinking water to millions of people across Central Texas could be at risk, according to a recent report by the Greater Edwards Aquifer Alliance (GEAA).

The GEAA released a new report, “A Review of the Impacts of Senate Bill 2038 on Land Use and Water Supplies in Central Texas” in May that provides: an overview of SB 2038 and extraterritorial jurisdiction (ETJ) regulations; an overview of the implications for planning, land management and water supplies in the region; and policy recommendations.

SB 2038, which was passed by the 88th Legislature in 2023 and went into effect on Sept. 1, 2023, provides property owners with a mechanism to disannex their land from a city’s ETJ. Since the implementation, hundreds of petitions — totaling thousands of acres — for release from the ETJ have been submitted to and approved by municipalities throughout Central Texas, according to GEAA.
The released areas are now subject only to county and state regulations, which are “often far less strict than municipal ETJ regulations,” said GEAA Policy Manager Rachel Hanes in a press conference via Zoom. This includes those that protect the Edwards and Trinity aquifers.

“These releases have the potential to put much of the land over the Edwards Aquifer Recharge Zone, and throughout the environmentally sensitive Edwards and Trinity Aquifer watersheds, at risk of environmental degradation, threatening the health, safety and quality of life of Texans,” Hanes said. “I analyzed ETJ release petitions in 13 Central Texas cities. These cities generally fall along the high growth corridor of Interstate 35 between San Antonio and Austin or are experiencing similar regional growth. Large portions of many of these ETJs overlie the recharge zone of the Edwards Aquifer … and some overlie the contributing zone of the Edwards and the recharge zone of the Trinity Aquifer.”

ETJ ordinances related to tree preservation, regulating nuisances, impervious cover limits, water quality protection and limiting incompatible land use through development agreements protect the general health, safety and welfare of residents in ways that county governments currently are not able to, according to Hanes. County governments often have limited to no authority to regulate in the areas, or do not take full advantage of the tools available, she added.

“Shifting the regulatory authority in the ETJ from municipalities to counties could severely curtail the tools available to govern rational and responsible growth and development, while also placing heavier burdens on county governments,” Hanes said. “This regulatory shift could negatively impact the quality of life for residents both in the ETJs and in city boundaries who expect these protections, especially as the region experiences rapid population growth.”

In the study timeframe of Sept. 1, 2023 to approximately March 1, 2024, each of the 13 cities analyzed received multiple petition requests. There were at least 551 requests in total received during the study period, Hanes said.

While it’s difficult to determine exactly how many acres have been requested to be withdrawn from ETJs, Hanes said that it’s 17,424 acres at minimum. She explained that it’s at minimum because since the closure of the study period, there have been even more releases.

“Cities do not have any real means to reject or disapprove an ETJ release petition or election as long as all of the very minimal standards in the law are met,” Hanes said. “They have no choice but to release the properties if the standards [are met].”

Those who are filing a petition for release from an ETJ must be signed by more than 50% of the registered voters of the applicable area as of the date of the preceding uniform election or a majority in value of the holders of title of land in the applicable area, as indicated by the tax rolls of the applicable appraisal district.

Additionally, the bill also allows a resident of an area in an ETJ to request the municipality hold an election for the registered voters residing in that area to vote on whether to release the area from the ETJ. The resident may do so by filing a petition with the city that includes valid signatures of at least 5% of the registered voters residing in the area as of the date of the most recent uniform election.

There are a few exceptions to the provisions laid out in SB 2038. The following are exempt:

• Areas located within 5 miles of the boundary of a military base at which an active training program is conducted.

• Areas voluntarily annexed into the ETJ that are located in a county in which the population grew by more than 50% from the 2010 federal decennial census in the federal decennial census conducted in 2020 and that has a population greater than 240,000.

• Areas within the portion of an ETJ of a municipality with a population of more than 1.4 million that is within 15 miles of the boundary of a military base at which an active training program is conducted and in a county with a population of more than 2 million people.

• Areas located in a designated applicable industrial district

• Areas located in an area subject to a strategic partnership agreement entered into between a municipality and certain conservation and reclamation districts.

The GEAA believes that the legislature should consider amending or repealing SB 2038. The organization says, at a minimum, the law should be amended to ensure that land overlying aquifer recharge and contributing zones must still adhere to protective municipal regulations, such as impervious cover limits and water quality protection ordinances.

“Regardless of whether the legislature chooses to amend SB 2038, they should grant expanded authority related to water quality protection and land use to counties at least in the fast-growing Trinity and Edwards Aquifer region,” Hanes concluded. “And they should also consider explicitly directing the Edwards Aquifer Authority to adopt and enforce impervious cover regulations for the Edwards Aquifer recharge and contributing zones within the authority’s boundaries.”

To read more about SB 2038 and the ETJ petition process, visit bit.ly/4c6mZCa. The full GEAA report can be found at bit.ly/3KyTtZH.