HAYS COUNTY COMMISSIONERS COURT
Hays County Judge Ruben Becerra tabled his resolution for a 30-day moratorium on permits for data centers and industrial developments with high water demands amid concerns from Commissioners about the details and legal validity of his proposal.
The proposed moratorium would target developments requiring more than 20,000 gallons of water per day, with the goal of providing county staff and commissioners time to research the water scarcity in the county as well as how large developments affect the supply of both water and power, as outlined in a draft Becerra released to the Court on Tuesday.
“The Hays County Commissioners Court finds that current drought conditions and increasing demand on regional water supplies require immediate and precautionary measures to ensure that industrial development activity does not adversely im- pact water availability or emergency preparedness,” according to the proposed resolution. In his capacity as Hays County Judge, Becerra is also Director of Emergency Management for Hays County.
The resolution was read in full during the Commissioners Court meeting but a written copy was delayed pending further edits.
Pct. 4 Commissioner Walt Smith said he would not vote for the resolution due to concerns that such a pause goes beyond the County’s legal scope.
“Do we have the legal authority to do it? I don’t believe that we do,” Smith said “If we pass this as written, we’re going to get sued.”
The Commissioners Court does not have planning and zoning authority, according to Smith. He specified the five areas where the Court can legally regulate development through the permits it issues: 1. Fire Codes 2. Roadway Connections 3. Septic Systems 4. Groundwater Availability and 5. Replats. The LegalClarity website defines a replat as “a legal process for revising an existing map of a property or subdivision to reflect changes in its configuration.”
According to Smith, the “Groundwater” category is the only one which would apply to limiting water usage in industrial developments, and if the groundwater source for such a development is outside of Hays County, then the Court cannot legally limit the development.
Smith also pointed out that private water and electricity providers currently have the power to place use restrictions on developers beyond any actions taken by the Court.
Debbie Gonzales Ingalsbe, Commissioner for Pct. 1, said she would willing to take action on the intent of the resolution provided she had more time to review it and the legal department cleared it.
“I think a lot of the language in here is fine, but there are items that I think that we need to take another look at,” Ingalsbe said. Commissioner Morgan Hammer, Pct. 3, also expressed concerns about the legal reach of the resolution, asking Hays County Assistant Criminal District Attorney Chase Young if the resolution was legal.
“Unfortunately, I don’t believe that this is something that the County will be able to legally do,” Young said. “Going forward, I think we would be exposing ourselves to significant legal liability. And I think that if we close at three [p.m.], we’d be sued by four [p.m.]” Commissioner Michele Cohen, Pct. 2, on the board of the Clean Air Coalition, expressed concern about byproducts of data centers, and recommended time to investigate the possible repercussions of data center development.
“What about any pollutants that come out of data centers?” Cohen said. “We’ve talked about that because there is the water, there’s possible pollutants, there’s noise, all those things. … I think this is a great first step in heading that direction. My concerns right now are just the legal side of it. What does that open us up to as a county that we just need to dive a little deeper into?”
Erin Zwiener, representative for Texas House District 45, which includes San Marcos, submitted a letter to the Court supporting the intent of Becerra’s moratorium resolution, but recommending a different approach based on building community support.
“No single elected official can solve this problem, and there is both safety and power in numbers. This is not the work of a single press release, Commissioner’s Court meeting or legislative committee meeting. …. If we are serious about protecting our water, we must build a powerful coalition that secures legal authority and wins widespread public buy-in.”
Smith was critical of Becerra’s approach to limiting data center development, suggesting an approach which involves collaboration among all of the members of the Court.
“I want to work out a solution that is within the regulatory purview of Hays County and reflects a deeper evaluation of the projects in question. … a real, usable resolution, rather than something that we could wave around if we’re running for office.” Smith said.
Becerra said the despite the fact he was tabling the resolution, he would revise it and present it again at Commissioners Court.
“All I want to do is show meaningful progress, not just taking trips and wringing hands and having meetings,” he said. “I want to show a real rattling of the cages of sincere effort, because that’s what our community deserves. “We can’t play chicken any longer. We’ve got to keep moving. And so this is that, and I will, I will find another way to modify this document that will be more robustly supported. But I will not stop on the push, and I will not stop on the effort.”
Becerra said he intends to convene a “Clear Water Summit” of county water providers within the next couple of weeks to align on current status and projections, as well as to coordinate actions.
In a statement from the city of San Marcos on Monday prior to the Commissioner’s Court meeting, the City acknowledged Becerra’s effort to bring a resolution before the Court, and said that measures of such a resolution would have to be reviewed by City Council before going into effect.
“The City of San Marcos is aware of Judge Becerra’s interest in bringing a moratorium forward for consideration by the Hays County Commissioners Court,” according to a statement from the City. “We will review any measures passed by the Court to determine their impact in the City. State law sets out certain procedures and limitations for the City to enact any development moratoriums. Any such measure would need to be approved by the City Council.”
