A bill filed by Senator Donna Campbell would allow developers to clear-cut trees and ignore rules to protect the Edwards Aquifer. Senate Bill 2078 would nullify 410,000 acres of San Antonio's tree preservation ordinance and 46,000 acres of its aquifer protection ordinance.
Campbell's bill says that cities cannot regulate an "activity or structure that is regulated by this State". It would apply to San Antonio's extra-territorial jurisdiction (ETJ), which is the 410,000 acre area surrounding the city limits (see drawing below). Should the bill pass, our tree and aquifer protection ordinances would be nullified in that area.
There is a Lot at Stake
Campbell's bill would let developers clear-cut trees, even giant heritage oaks, anywhere in the ETJ. Since the vast majority of property inside San Antonio's (CoSA's) city limits is already developed, the ETJ is where nearly all development of raw, natural land occurs. In other words, if this bill passes, CoSA's tree ordinance will be all but worthless.
In addition, developers could ignore the 15% impervious cover limit prescribed by the aquifer protection ordinance, as well as protections for creeks, caves and recharge features. There are approximately 46,000 acres of recharge zone in the ETJ. While some of that land is already developed, there are still thousands of acres of natural land available for future housing subdivisions and commercial buildings.
Unforeseen Consequences are Likely
Because Texas has many regulations on "activities and structures", the entirety of potential impacts is unknown at this time. What we do know is that Texas began regulating tree removal in 2017, when a bill was passed to limit municipal tree ordinances. In addition, development over the aquifer recharge zone is regulated by TCEQ. Other city codes pertaining to stormwater and drainage, wastewater systems, and floodplains could also be preempted.
Furthermore, this bill would, essentially, give politicians in Austin control over cities' ETJs. In the future, a new state regulation, however insignificant, could automatically nullify a significant city regulation. Cities would be prevented from imposing any controls on quarries/cement plants built just outside their borders, for example.
Note that an identical companion bill was filed in the House by Representative John Kuempel of Seguin.
The Myth of "Regulation without Representation"
Campbell's & Kuempel's bills are founded on the premise that, because residents in the ETJ cannot vote in city elections, they shouldn't be subject to city regulations. Senator Campbell calls this "regulation without representation" (watch this video starting at 1:48:40).
There are four flaws in this premise.
First, there simply is not any "regulation without representation". ETJ residents are represented by their County Commissioners on ETJ regulations. Any city development codes applicable to the ETJ are authorized by "interlocal agreements" adopted by their County Commissioners Court (example: Comal County/CoSA agreement). The fact is, ETJ residents cannot vote in city elections because they do not pay city taxes.
Second, the vast majority of ETJ residents have no city regulations to comply with. San Antonio’s tree and aquifer protection ordinances apply only to developers/builders. Other landowners in the ETJ are, in general, free to ignore them. Also, agricultural properties in the ETJ, such as farms and ranches, are exempt from city ordinances under Agriculture Code Sec. 251.005 (c).
Third, the developers and builders in CoSA's ETJ have more than ample representation at City Hall.
- Developers are well-represented by their lobbyists at City Hall, and by their advocates who serve on the Planning and Zoning Commissions.
- CoSA's Technical Advisory Committee, the committee that writes San Antonio’s land development codes, is dominated by developers and advocates for the development industries.
- ETJ landowners, and developers, wherever they live, are always free to speak before City Council and any city commissions.
Fourth, it is, primarily, companies from places like California, Michigan and Dallas that are subject to regulation in the ETJ. Since the officers and boards of these companies don't live in San Antonio or its ETJ, they wouldn't be entitled to vote in City elections regardless.
Déjà Vu
If you get the feeling you've seen this bill before, you have! SB 2078 is only Senator Campbell's latest attempt to give developers free rein to destroy trees.
In 2017, she filed one bill that would have nullified tree ordinances in ETJs, added an ETJ nullification amendment to a different bill, and filed another which would have allowed clear-cutting by developers. In 2011, Senator Nichols made a well-publicized attempt to prohibit tree ordinances in ETJs. In 2013, Senator Kolkhorst filed a bill that would have permitted clear-cutting of trees.