Introduction
The Legal Framework
The Major Watershed Ordinances
Watershed Protection Since SOS
Regulation Summary Table
Regulation Area Map

Stakeholder Meetings
2011- 2012

Introduction

Austin's sense of itself and its future are inextricably linked to water: from tree lined creeks, to Barton Springs and the Highland Lakes. The storied history of protecting these common assets involves citizens from many walks of life - both famous and infamous - and reflects our community's shared values. These values express themselves through citywide planning efforts and the adoption of watershed ordinances. Citizens and elected officials alike recognize the relationship between our region's vitality and its physical variability, which makes some watersheds more environmentally sensitive than others to water pollution. While some watersheds are more sensitive, others may actually affect Lake Austin and Town Lake, our principle sources of drinking water. Recognizing the importance of protecting our water supply and environmentally sensitive watersheds led to the creation of the Desired Development Zone and Drinking Water Protection Zone. The City of Austin's Smart Growth Initiatives are designed to redirect Austin's explosive growth into the less environmentally-sensitive Desired Development Zone watersheds and away from the Drinking Water Protection Zone watersheds.

To understand Smart Growth and watershed water quality protection, it is important to understand how we got here, which is in no small measure the history of our watershed ordinances. Watershed ordinances are just one in a set of the tools used to protect Austin's lakes, creeks and springs that also includes education, environmental programs and capital improvement projects. Watershed ordinances represent an exercise in Austin's ability to protect the health, safety and welfare of its citizens, as well as the shifting tides of political will and an evolution in our understanding of water resource protection. The following sections briefly describes the legal framework in which our watershed ordinances developed, highlights the most important watershed ordinances from the past 20 years and briefly examines how Smart Growth Initiatives relate to the future of water resource protection in Austin, Texas.

The Legal Framework

The City of Austin is a home-rule city that derives its land use control and development authority from the Texas Constitution. That authority is articulated in the City's Charter, which stipulates that development must conform to a comprehensive plan.

Comprehensive plans integrate social, economic and environmental planning into a framework that zoning and subdivision ordinances must conform to. A comprehensive plan's effectiveness will often be judged by the ordinances and rules developed to implement it. The City of Austin's current comprehensive plan, known as the Austin Tomorrow Plan (1979), articulated many of the watershed protection goals that are only now coming to fruition.

When a city's charter expressly provides for it, a city may exercise its police powers, which include reasonable protection of public health, safety or morals. The broad authority that home-rule cities have to protect public health includes water quality protection. Home-rule cities also find authority to protect water quality in the Texas Water Code (section 26.177) and the Texas Local Government Code (section 401.002).

The City of Austin protects water quality through the Land Development Code (LDC), which governs zoning, subdivision and the site plan process. The City's watershed protection ordinances are codified, particularly, in those sections of the LDC that address subdivision and site plan.

Zoning is used to establish compatible land uses and, for cities, cannot be exercised outside of a city in its extra-territorial jurisdiction (ETJ). Zoning may be used to regulate the percentage of a lot that may be occupied, size of yards, courts and other open spaces, population density and the location and use of buildings. Although the City of Austin does not use zoning expressly for water quality purposes, the reduced density or impervious cover percentage requirements for various zoning districts may in fact provide water quality benefits.

Subdivision regulations have become one of the most important regulatory tools that cities possess and have historically governed the division of land into two or more separate parcels for future sale or use. Subdivision requirements include preliminary plan development and approval, final plat review and approval and subdivision layout plan approval for streets, alleys, sidewalks, block lengths, lot arrangements and lot sizes, the dedication of parkland and the installation of utilities. Over time, subdivision authority has expanded, and can be used to influence the timing and location of new development, and to protect the natural environment.

Site plan requirements apply to all development projects within the city limits and ETJ. Normal landscaping, agricultural activities and very small projects are typically exempted from site plan requirements. Through a site plan, City staff determines whether a proposed development complies with the LDC and, therefore, the water quality protection measures established by watershed ordinances.

Within the city limits (our zoning jurisdiction), a site plan will consist of both land use and a construction plan components. In the ETJ, only the construction components of a site plan are reviewed. Watershed requirements must be addressed by site plans throughout the City's jurisdiction. Land use elements include intensity, density, height and residential compatibility issues. Watershed ordinance requirements include, at a minimum, setbacks from creeks and critical environmental features, erosion control, revegetation, impervious cover limitations and stormwater treatment. Other elements of the construction site plan would include drainage, landscaping, sidewalk, paving and flood detention.

The Major Watershed Ordinances

Projects that require subdivision or site plan approvals must comply with the City of Austin's watershed ordinances. These ordinances have evolved over time to: 1) reflect our current understanding of water quality and stormwater hydrology and 2) cover all 45 watersheds within the City's planning area, either wholly or in part.

The City of Austin has adopted fewer than 10 watershed ordinances since 1980, these include: Lake Austin, Lake Austin Peninsula, Barton Creek, Williamson Creek, Lower Watersheds, Comprehensive, Interim, Composite and Save Our Springs. While that may seem like a relatively small number given the total number of watersheds in our area and our region's environmental diversity, several of those ordinances were amended on more than one occasion. The following descriptions are intended only to highlight the major watershed ordinances and may include discussions of: impervious cover, density, transfer of impervious cover or development rights, stormwater treatment and detention requirements, construction site management and stream setbacks or buffer zones.

The Lake Austin Watershed Ordinance (LAWO) was adopted permanently in January 1980 and represents the City of Austin's first major attempt to address water quality degradation in the face of increasing urbanization. Key features of the ordinance included: slope based impervious cover limits of up to 30 percent that were eventually raised to a maximum of 80 percent with transfers, a provision for water quality and quantity structural controls when minimum ordinance standards were not met and a requirement for an erosion / sedimentation control plan prior to subdivision application approval. It should be noted that every ordinance discussed hereafter makes provisions for an erosion / sedimentation control plan. The LAWO did not require stream setbacks or buffer zones. The ordinance did, however, prohibit building sites within the 100-year floodplain of any creek or tributary in the watershed.

The Barton Creek Watershed Ordinance (BCWO) was passed in 1980 and represented a significant departure from the Lake Austin Watershed Ordinance. Key features of the ordinance included: impervious cover limits capped at 35 percent for commercial and multi-family development, and the use of density limits that varied with the location of the development. The BCWO did not require water control structures, nor did it provide a mechanism whereby an applicant could increase impervious cover using alternate methods. This ordinance relied entirely on non-structural water quality controls and introduced stream set back requirements that created five water quality zones with enumerated development restrictions for each one. The ordinance also provided incentives (increased density) for the transfer of development rights that included the conveyance of land in the critical water quality zone, for water quality protection, to the City as parkland.

The Williamson Creek Watershed Ordinance (WCWO) applied to that part of Williamson Creek crossing the recharge zone and was passed in December 1980. The WCWO included a requirement for stormwater treatment, a departure from previous ordinances. Key features of the ordinance included: impervious cover limits for single- and two-family homes of 40 percent and limits of up to 65 percent for commercial and multi-family developments, the use of stream setbacks based on our present concept of major, intermediate and minor waterways and the inclusion of a critical water quality zone that was to remain free of all but certain types of development.

The Lower Watersheds Ordinance (LWO) was adopted in 1981 and extended water quality protection into the Slaughter, Bear, Little Bear and Onion Creek watersheds. The LWO resembles the WCWO in many ways, except that it reduces impervious cover allowances for commercial development to 40 percent and 55 percent with transfers and, for residential development, reduces it to 30 percent and 40 percent with transfers. The LWO introduced a water quality buffer zone, and set impervious cover limits of up to 18 percent and 15 percent, respectively, for single-family and commercial development in this zone.

The Comprehensive Watersheds Ordinance (CWO) was adopted in 1986, superceded previous watershed ordinances and extended water quality protection throughout the City of Austin's planning area to all but the urban watersheds. While similar in some respects to its predecessors, the CWO contained a number of significant innovations. For the first time, watersheds that do not provide a portion of our drinking water received significant water quality protection. The CWO was also the first ordinance to use net site area (NSA) impervious cover calculations instead of calculations based on gross site area (GSA). GSA includes the entire site, while NSA requirements include only a site's buildable areas and can reduce overall impervious cover. The ordinance included other firsts too, such as the designation of critical environmental features and provisions for their protection. The CWO also began to organize watersheds into groups based on their relationship to 1) the City's water supply, in particular Lake Austin, 2) the Barton Springs Edwards Aquifer recharge zone and to some extent the Northern Edwards Aquifer and to 3) the degree of urbanization within a watershed, i.e. urban, suburban or rural.

Urban watershed protections were incorporated by amendment into the LDC in 1991. The Urban Watersheds Ordinance (UWO) amendments did not place impervious cover limits on new development, but did require water quality control structures to treat stormwater runoff. The UWO included other requirements that: allowed for fee-in-lieu of payments instead of building water quality control structures when approved by the Director of the Watershed Protection Department and established critical water quality zones with their attendant development restrictions in watersheds outside of the central business district.

The Save Our Springs Ordinance (SOS) was adopted in 1992 and differed from its predecessors because it became law by citizen initiative. Two ordinances worth noting preceded the SOS Ordinance: the Interim and Composite Ordinances. These ordinances addressed development in the Barton Springs Zone, which includes Barton Creek and the other creeks draining to, or crossing, the Edwards Aquifer recharge zone. Highlights of these ordinances included: the first requirements for non-degradation (based on stormwater discharge concentrations) and provisions that excluded variances unless a demonstrable improvement in water quality was shown. Variances, which made departures from an ordinance permissible, were a general feature of watershed ordinances up until this time.

The SOS Ordinance, applied throughout the Barton Springs Zone, required: non- degradation (based on total average annual loading), and lowered impervious cover to 15 percent NSA for all development in the recharge zone, 20 percent NSA for development in the Barton Creek portion of the contributing zone and 25 percent NSA for development in the remaining portions of the contributing zone in Williamson, Slaughter, Bear, Little Bear and Onion Creeks.

The City of Austin Watershed Regulation Summary Table summarizes the current watershed regulations by zone and watershed classification and the City of Austin Watershed Regulation Area Map illustrates where those watersheds are located.

Watershed Protection Since SOS

The SOS Ordinance has withstood a number of legal challenges. Efforts to protect water quality in Austin and throughout Texas are still beset by a State law that provides "grandfathering" of some developments from current regulations. The most recent enactment of this state law was as House Bill 1704 by the 76th legislature. 1704 is the culmination of previous legislation that essentially freezes regulations on the date the first permit application is filed until the project is complete. The implications for a city like Austin are that projects with older development approvals, if they qualify for 1704 protections, can be built under regulations that will not protect water quality as well as projects built under more recent ordinances.

While no major watershed ordinances have been passed since the SOS ordinance, other efforts that may result in new ordinances or ordinance amendments include the City's Smart Growth initiative.

Smart Growth as discussed earlier is an effort to reshape urban and suburban growth so that it will enhance our communities, strengthen the economy and protect the environment. Akin to earlier comprehensive planning efforts, Smart Growth concepts were originally described by the Citizen's Planning Committee beginning in late 1994. An important Smart Growth principle is the City's division into Drinking Water Protection and Desired Development Zones. This division is a reflection of the sensitivity of watersheds that are located over, or adjacent to, the Barton Springs Edwards Aquifer recharge zone or that supply water to Lake Austin. Smart Growth initiatives seek to direct growth away from these areas into less environmentally sensitive areas, while at the same time seeking LDC amendments and policy changes that will protect or enhance watershed water quality throughout Austin. Taken in sum, the City of Austin's Smart Growth Initiatives should result in a healthier environment and ultimately a more livable community.