By: Parker S.B. No. 1048
73R471 JJT-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to floodplain management and flood insurance; providing
1-3 penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter G, Chapter 16, Water Code, is amended
1-6 by adding a new Section 16.231 and by renumbering and amending
1-7 current Section 16.231 to read as follows:
1-8 Sec. 16.231. DEFINITION. In this subchapter, "improvement"
1-9 includes a:
1-10 (1) levee;
1-11 (2) channel modification;
1-12 (3) landfill;
1-13 (4) highway or railroad bridge; or
1-14 (5) structure that controls, regulates, or otherwise
1-15 changes the floodwater of a stream.
1-16 Sec. 16.2315. <Sec. 16.231.> Design of Improvements or
1-17 System of Improvements. (a) Insofar as possible, improvements
1-18 necessary to reclaim overflowed land, swampland, and other land in
1-19 this state that is not suitable for use because of temporary or
1-20 permanent excessive accumulation of water on or contiguous to the
1-21 land for agricultural or other use shall be designed with primary
1-22 consideration to the topographic and hydrographic conditions and in
1-23 such a manner that each division of a project shall be a complete,
1-24 united project forming a coordinate part of an ultimately finished
2-1 series of projects so constituted that the successful operation of
2-2 each united project shall coordinate with the successful operation
2-3 of other projects within the same hydraulic influence.
2-4 (b) An improvement that is not necessary to reclaim land
2-5 shall be designed to coordinate with the successful operation of
2-6 reclamation projects within the same hydraulic influence.
2-7 (c) An improvement shall be designed with consideration of
2-8 the effects of the improvement throughout the watershed, including
2-9 the effects on:
2-10 (1) nonpoint source pollution;
2-11 (2) wetlands;
2-12 (3) wildlife;
2-13 (4) wildlife habitat;
2-14 (5) runoff characteristics; and
2-15 (6) erosion.
2-16 SECTION 2. Section 16.232, Water Code, is amended to read as
2-17 follows:
2-18 Sec. 16.232. Location of Projects; Reports. The executive
2-19 director shall maintain files reflecting engineering reports,
2-20 studies, drawings, and staff findings and recommendations
2-21 pertaining to the location and effect of reclamation and
2-22 improvement projects.
2-23 SECTION 3. Section 16.236, Water Code, is amended to read as
2-24 follows:
2-25 Sec. 16.236. Construction of IMPROVEMENT <Levee> Without
2-26 Approval of Plans. (a) A <No> person may not construct, attempt
2-27 to construct, cause to be constructed, maintain, or cause to be
3-1 maintained an <any levee or other such> improvement on, along, or
3-2 near any stream of this state that is subject to floods, freshets,
3-3 or overflows so as to control, regulate, or otherwise change the
3-4 floodwater of the stream without first obtaining approval of the
3-5 plans by the commission.
3-6 (b) Any person who violates any provision of this section is
3-7 guilty of a misdemeanor and upon conviction is punishable by a fine
3-8 of not more than $100. A separate offense is committed each day an
3-9 improvement <a structure> constructed or maintained in violation of
3-10 this section is maintained.
3-11 (c) At the request of the executive director, the attorney
3-12 general shall file suit in a district court of Travis County to
3-13 enjoin any violation or threatened violation of this section. In
3-14 the suit, the attorney general may seek to have the <illegal levee
3-15 or other> improvement removed and the preexisting conditions
3-16 restored and may also collect civil penalties of up to $100 a day
3-17 for each day a violation occurs.
3-18 (d) This section does not apply to:
3-19 (1) dams permitted by the commission or recognized as
3-20 valid by final decree in any proceeding begun under Subchapter G,
3-21 Chapter 11, of this code;
3-22 (2) dams authorized by Section 11.142 of this code;
3-23 (3) an <a levee or other> improvement within the
3-24 corporate limits of a municipality <city or town> provided: (a)
3-25 plans for the construction or maintenance or both must be approved
3-26 by the municipality <city or town> as a condition precedent to
3-27 starting the project and (b) the municipality <city or town>
4-1 requires that such plans be in substantial compliance with rules
4-2 and standards adopted by the commission; <or>
4-3 (4) an <a levee or other> improvement within the
4-4 boundaries of any political subdivision that <which> has qualified
4-5 for the National Flood Insurance Program as authorized by the
4-6 National Flood Insurance Act of 1968 (Title 42, U.S.C., Sections
4-7 4001-4127) provided: (a) plans for the construction or maintenance
4-8 or both must be approved by the political subdivision which is
4-9 participating in the national flood insurance program as a
4-10 condition precedent to starting the project and (b) the political
4-11 subdivision requires that such plans be in substantial compliance
4-12 with rules and standards adopted by the commission; or
4-13 (5) projects implementing soil and water conservation
4-14 practices set forth in a conservation plan with a landowner or
4-15 operator and approved by the governing board of a soil and water
4-16 conservation district organized under Chapter 201, Agriculture Code
4-17 <the State Soil Conservation Law, as amended (Article 165a-4,
4-18 Vernon's Texas Civil Statutes)>, provided that the governing board
4-19 finds the practices do not significantly affect stream flooding
4-20 conditions on, along, or near a state stream.
4-21 (e) On projects located within the corporate limits of a
4-22 municipality <city or town> or within the boundaries of any
4-23 political subdivision which are exempt from the provisions of this
4-24 section by Subdivision (3) or (4) of Subsection (d) above, any
4-25 person whose property is located outside of the corporate limits of
4-26 the municipality <such city or town> or of the boundaries of such a
4-27 political subdivision and whose property is affected or potentially
5-1 affected by the effect of the project on the floodwaters of the
5-2 stream may appeal the decision of such political subdivision. The
5-3 appeal shall be in writing and shall specify the grounds therefor
5-4 and a copy shall be sent by certified mail to the project applicant
5-5 and to the municipality <city or town> or such political
5-6 subdivision. The timely filing of such an appeal with the
5-7 executive director suspends the decision of the municipality <city
5-8 or town> or political subdivision until a final decision is
5-9 rendered by the commission. The executive director shall review
5-10 the complaint and investigate the facts surrounding the nature of
5-11 the complaint. If the executive director finds that the complaint
5-12 is frivolous or nonmeritorious or made solely for purposes of
5-13 harassment or delay, then he shall dismiss the appeal. Otherwise,
5-14 the executive director shall refer the appeal to the commission
5-15 which shall after due notice hold a hearing to determine whether
5-16 the project should be approved using the standards established by
5-17 the commission and shall hear such appeal de novo under the
5-18 procedural rules established by the commission for other
5-19 reclamation or improvement projects.
5-20 SECTION 4. Subchapter G, Chapter 16, Water Code, is amended
5-21 by adding Section 16.2361 to read as follows:
5-22 Sec. 16.2361. COMMISSION REVIEW OF IMPROVEMENT PLANS. (a)
5-23 A political subdivision that has qualified for the National Flood
5-24 Insurance Program as described by Section 16.236(d)(4) of this code
5-25 or a municipality shall submit its plans for an improvement within
5-26 its boundaries to the commission for review.
5-27 (b) The commission shall review plans submitted under this
6-1 section to ensure that the plans coordinate with the successful
6-2 operation of other projects within the same hydraulic influence and
6-3 that the plans consider the effects of the improvement throughout
6-4 the watershed, including the effects on:
6-5 (1) nonpoint source pollution;
6-6 (2) wetlands;
6-7 (3) wildlife;
6-8 (4) wildlife habitat;
6-9 (5) runoff characteristics; and
6-10 (6) erosion.
6-11 (c) The commission shall send to the political subdivision
6-12 its comments on plans submitted under this section within 20 days
6-13 after the date the commission receives the plans.
6-14 SECTION 5. Section 12.052, Water Code, is renumbered as
6-15 Section 16.237 and amended to read as follows:
6-16 Sec. 16.237 <12.052>. Dam Safety. (a) The commission shall
6-17 make and enforce rules and orders and shall perform all other acts
6-18 necessary to provide for the safe construction, operation,
6-19 maintenance, repair, and removal of dams located in this state.
6-20 (b) Rules and orders made by the commission shall be made
6-21 after proper notice and hearing as provided in the rules of the
6-22 commission.
6-23 (c) If the owner of a dam that is required to be
6-24 constructed, reconstructed, repaired, or removed in order to comply
6-25 with the rules and orders promulgated under Subsection (a) of this
6-26 section wilfully fails or refuses to comply within the 30-day
6-27 period following the date of the commission's order to do so or if
7-1 a person wilfully fails to comply with any rule or other order
7-2 issued by the commission under this section within the 30-day
7-3 period following the effective date of the order, he is liable to a
7-4 penalty of not more than $1,000 a day for each day he continues to
7-5 violate this section. The state may recover the penalty by suit
7-6 brought for that purpose in the district court of Travis County.
7-7 (d) If the commission determines that the existing condition
7-8 of the dam is creating or will cause extensive or severe property
7-9 damage or economic loss to others or is posing an immediate and
7-10 serious threat to human life or health and that other procedures
7-11 available to the commission to remedy or prevent the occurrence of
7-12 the situation will result in unreasonable delay, the commission may
7-13 issue an emergency order, either mandatory or prohibitory in
7-14 nature, directing the owner of a dam to repair, modify, maintain,
7-15 dewater, or remove the dam which the commission determines is
7-16 unsafe. The emergency order may be issued without notice to the
7-17 dam owner or with notice the commission considers practicable under
7-18 the circumstances. The notice does not have to comply with the
7-19 Administrative Procedure and Texas Register Act, as amended
7-20 (Article 6252-13a, Vernon's Texas Civil Statutes).
7-21 (e) If the commission issues an emergency order under
7-22 authority of this section without notice to the dam owner, the
7-23 commission shall fix a time and place for a hearing which shall be
7-24 held as soon as practicable to affirm, modify, or set aside the
7-25 emergency order. The notice does not have to comply with the
7-26 Administrative Procedure and Texas Register Act, as amended
7-27 (Article 6252-13a, Vernon's Texas Civil Statutes). If the nature
8-1 of the commission's action requires further proceedings, those
8-2 proceedings shall be conducted as appropriate under the
8-3 Administrative Procedure and Texas Register Act, as amended
8-4 (Article 6252-13a, Vernon's Texas Civil Statutes).
8-5 (f) Nothing in this section or in rules or orders made by
8-6 the commission shall be construed to relieve an owner or operator
8-7 of a dam or reservoir of the legal duties, obligations, or
8-8 liabilities incident to ownership or operation.
8-9 SECTION 6. Subchapter G, Chapter 16, Water Code, is amended
8-10 by adding Sections 16.238-16.240 to read as follows:
8-11 Sec. 16.238. FLOOD SAFETY RULES. (a) A person may not
8-12 construct a new reservoir with a capacity of over 10,000 acre-feet
8-13 unless:
8-14 (1) the project includes a reserve pool capacity for
8-15 flood control purposes that is adequate for the flood risk in the
8-16 project area; or
8-17 (2) the owner of the site owns easements surrounding
8-18 the proposed reservoir that prohibit construction of buildings
8-19 below the greater of the emergency spillway level or the 100-year
8-20 flood level.
8-21 (b) The commission by rule shall prohibit the construction
8-22 of a new reservoir unless the commission has reviewed the plans for
8-23 the project and has certified that the project meets the
8-24 requirements of Subsection (a) of this section.
8-25 (c) On the request of the commission, the attorney general
8-26 shall bring suit in a district court in Travis County to enjoin the
8-27 construction of a reservoir project if a person undertakes to begin
9-1 the project without the commission's approval.
9-2 Sec. 16.239. DAM REGISTRATION FEE. (a) The owner of a dam
9-3 shall register the dam with the commission.
9-4 (b) The owner annually shall pay a fee to the commission for
9-5 the registration according to the size and hazard classification of
9-6 the dam and the following schedule:
9-7 (1) small dam, significant hazard $ 100
9-8 (2) small dam, high hazard 200
9-9 (3) intermediate dam, significant hazard 500
9-10 (4) intermediate dam, high hazard 1,000
9-11 (5) large dam, low hazard 500
9-12 (6) large dam, significant hazard 1,000
9-13 (7) large dam, high hazard 2,000.
9-14 (c) Fees collected under this section shall be deposited in
9-15 the state treasury to the credit of the general revenue fund.
9-16 Sec. 16.240. ADMINISTRATIVE PENALTY. (a) The commission
9-17 may assess a penalty under this section against a person who fails
9-18 to comply with a rule or order adopted or issued under Section
9-19 16.237 of this code before the 31st day after the effective date of
9-20 the rule or order.
9-21 (b) The penalty may not exceed $5,000 for each day after the
9-22 30th day after the effective date of the rule or order that the
9-23 person continues to violate.
9-24 (c) In determining the amount of the penalty, the commission
9-25 shall consider:
9-26 (1) the nature, circumstances, extent, duration, and
9-27 gravity of the violation with special emphasis on the hazard or
10-1 potential hazard created to the health or safety of the public;
10-2 (2) the potential impact of the violation on a stream
10-3 or underground water reservoir, on the property or property owners,
10-4 or on water users of a stream or underground water reservoir;
10-5 (3) with respect to the alleged violator:
10-6 (A) the history and extent of previous
10-7 violations;
10-8 (B) the degree of culpability, including whether
10-9 the violation was attributable to mechanical or electrical failures
10-10 and whether the violation could have been reasonably anticipated
10-11 and avoided;
10-12 (C) the demonstrated good faith, including
10-13 actions taken by the alleged violator to rectify the cause of the
10-14 violation;
10-15 (D) economic benefit gained by the violation;
10-16 and
10-17 (E) the amount necessary to deter future
10-18 violations; and
10-19 (4) any other matters that justice may require.
10-20 (d) If, after examination of a possible violation for which
10-21 the commission may assess a penalty against a person under this
10-22 section, and the facts surrounding that possible violation, the
10-23 executive director concludes that a violation has occurred, the
10-24 executive director may issue a preliminary report:
10-25 (1) stating the facts that support the conclusion;
10-26 (2) recommending that a penalty under this section be
10-27 imposed; and
11-1 (3) recommending the amount of the penalty, which
11-2 shall be based on the factors prescribed by Subsection (c) of this
11-3 section, including an analysis of each factor for the commission.
11-4 (e) Not later than the 10th day after the date on which the
11-5 report is issued, the executive director shall give written notice
11-6 of the report to the person charged with the violation. The notice
11-7 must include:
11-8 (1) a brief summary of the charges;
11-9 (2) a statement of the amount of the penalty
11-10 recommended; and
11-11 (3) a statement of the right of the person charged to
11-12 a hearing on the occurrence of the violation, the amount of the
11-13 penalty, or both.
11-14 (f) Not later than the 20th day after the date on which
11-15 notice is received, the person charged may give to the commission
11-16 written consent to the executive director's report, including the
11-17 recommended penalty, or make a written request for a hearing.
11-18 (g) If the person charged with the violation consents to the
11-19 penalty recommended by the executive director or does not timely
11-20 respond to the notice, the commission by order shall assess the
11-21 penalty or order a hearing to be held on the findings and
11-22 recommendations in the executive director's report. If the
11-23 commission assesses the penalty, the commission shall give written
11-24 notice to the person charged of its decision.
11-25 (h) If the person charged requests or the commission orders
11-26 a hearing, the commission shall order and shall give notice of the
11-27 hearing. The commission by order may find that a violation has
12-1 occurred and may assess a penalty, may find that a violation has
12-2 occurred but that no penalty should be assessed, or may find that
12-3 no violation has occurred. In making a penalty decision, the
12-4 commission shall analyze each factor prescribed by Subsection (c)
12-5 of this section. All proceedings under this subsection are subject
12-6 to the Administrative Procedure and Texas Register Act (Article
12-7 6252-13a, Vernon's Texas Civil Statutes).
12-8 (i) The commission shall give notice of its decision to the
12-9 person charged, and if the commission finds that a violation has
12-10 occurred and assesses a penalty, the commission shall give written
12-11 notice to the person charged of:
12-12 (1) the commission's findings;
12-13 (2) the amount of the penalty; and
12-14 (3) the person's right to judicial review of the
12-15 commission's order.
12-16 (j) If the commission is required to give notice of a
12-17 penalty under Subsection (g) or (i) of this section, the commission
12-18 shall file notice of its decision in the Texas Register not later
12-19 than the 10th day after the date on which the decision is adopted.
12-20 (k) Not later than the 30th day after the date on which the
12-21 commission's order is final, the person charged with the penalty
12-22 shall pay the penalty in full or file a petition for judicial
12-23 review.
12-24 (l) If the person seeks judicial review of the fact of the
12-25 violation, the amount of the penalty, or both, the person, within
12-26 the time provided by Subsection (k) of this section, shall:
12-27 (1) send the amount of the penalty to the commission
13-1 for placement in an escrow account; or
13-2 (2) post with the commission a supersedeas bond in a
13-3 form approved by the commission for the amount of the penalty, the
13-4 bond to be effective until judicial review of the order or decision
13-5 is final.
13-6 (m) A person who fails to comply with Subsection (l) of this
13-7 section waives the right to judicial review, and the commission or
13-8 the executive director may refer the matter to the attorney general
13-9 for enforcement.
13-10 (n) Judicial review of the order or decision of the
13-11 commission assessing the penalty shall be under Section 19,
13-12 Administrative Procedure and Texas Register Act (Article 6252-13a,
13-13 Vernon's Texas Civil Statutes).
13-14 (o) The commission may compromise, modify, or remit, with or
13-15 without conditions, a penalty imposed under this section.
13-16 (p) Payment of a penalty under this section is full and
13-17 complete satisfaction of the violation for which the administrative
13-18 penalty is assessed and precludes any other civil or criminal
13-19 penalty for the same violation.
13-20 (q) A penalty collected under this section shall be
13-21 deposited in the state treasury to the credit of the general
13-22 revenue fund.
13-23 SECTION 7. Sections 16.313 and 16.314, Water Code, are
13-24 amended to read as follows:
13-25 Sec. 16.313. Definitions. In this subchapter:
13-26 (1) "Political subdivision" means any political
13-27 subdivision or body politic and corporate of the State of Texas and
14-1 includes any county, river authority, conservation and reclamation
14-2 district, water control and improvement district, water improvement
14-3 district, water control and preservation district, fresh water
14-4 supply district, irrigation district, and any type of district
14-5 heretofore or hereafter created or organized or authorized to be
14-6 created or organized pursuant to the provisions of Article XVI,
14-7 Section 59 or Article III, Section 52 of the Constitution of the
14-8 State of Texas; "political subdivision" also means any interstate
14-9 compact commission to which the State of Texas is a party,
14-10 municipal corporation, or city whether operating under the Home
14-11 Rule Amendment of the Constitution or under the General Law.
14-12 (2) "National Flood Insurance Act" means the National
14-13 Flood Insurance Act of 1968, as amended (42 U.S.C. Sections 4001
14-14 through 4127), and the implementation and administration of the Act
14-15 by the director <Secretary> of the Federal Emergency Management
14-16 Agency <United States Department of Housing and Urban Development>.
14-17 (3) "Director" <"Secretary"> means the director
14-18 <Secretary> of the Federal Emergency Management Agency <United
14-19 States Department of Housing and Urban Development>.
14-20 Sec. 16.314. Cooperation of Commission. In recognition of
14-21 the necessity for a coordinated effort at all levels of government,
14-22 the commission shall cooperate with the Federal Insurance
14-23 Administrator of the Federal Emergency Management Agency <United
14-24 States Department of Housing and Urban Development> in the planning
14-25 and carrying out of state participation in the National Flood
14-26 Insurance Program; however, the responsibility for qualifying for
14-27 the National Flood Insurance Program shall belong to any interested
15-1 political subdivision, whether presently in existence or created in
15-2 the future.
15-3 SECTION 8. Subchapter I, Chapter 16, Water Code, is amended
15-4 by adding Section 16.3141 to read as follows:
15-5 Sec. 16.3141. NATIONAL FLOOD INSURANCE REQUIRED. (a) A
15-6 political subdivision shall participate in the National Flood
15-7 Insurance Program. A political subdivision annually shall report
15-8 to the commission the subdivision's status under the insurance
15-9 program as provided by rules adopted by the commission.
15-10 (b) The commission may order a political subdivision to take
15-11 an action necessary to comply with National Flood Insurance Program
15-12 requirements or criteria.
15-13 (c) The commission may grant a variance to the requirement
15-14 imposed by Subsection (a) of this section if a political
15-15 subdivision shows that the subdivision's participation in the
15-16 insurance program is not warranted.
15-17 (d) The commission may recommend to the director that a
15-18 political subdivision that is not in compliance with a National
15-19 Flood Insurance Program requirement or criterion be suspended from
15-20 participation in the insurance program.
15-21 (e) A political subdivision is liable for a civil penalty of
15-22 not less than $100 and not more than $5,000 for each day the
15-23 subdivision fails to comply with this section or a rule or order
15-24 adopted under this section.
15-25 (f) The attorney general, at the request of the commission,
15-26 may bring suit to recover the penalty imposed by Subsection (e) of
15-27 this section in a district court in Travis County.
16-1 SECTION 9. Section 16.315, Water Code, is amended to read as
16-2 follows:
16-3 Sec. 16.315. Political Subdivisions; Compliance With Federal
16-4 Requirements. All political subdivisions are hereby authorized to
16-5 take all necessary and reasonable actions to comply with the
16-6 requirements and criteria of the National Flood Insurance Program,
16-7 including but not limited to:
16-8 (1) making appropriate land use adjustments to
16-9 constrict the development of land which is exposed to flood damage
16-10 and minimize damage caused by flood losses;
16-11 (2) guiding the development of proposed future
16-12 construction, where practicable, away from a location which is
16-13 threatened by flood hazards;
16-14 (3) assisting in minimizing damage caused by floods;
16-15 (4) authorizing and engaging in continuing studies of
16-16 flood hazards in order to facilitate a constant reappraisal of the
16-17 flood insurance program and its effect on land use requirements;
16-18 (5) engaging in floodplain management and adopting and
16-19 enforcing permanent land use and control measures consistent with
16-20 the criteria established under the National Flood Insurance Act;
16-21 (6) declaring property, when such is the case, to be
16-22 in violation of local laws, regulations, or ordinances which are
16-23 intended to discourage or otherwise restrict land development or
16-24 occupancy in flood-prone areas and notifying the director
16-25 <secretary>, or whomever he designates, of such property;
16-26 (7) consulting with, giving information to, and
16-27 entering into agreements with the Federal Emergency Management
17-1 Agency <Department of Housing and Urban Development> for the
17-2 purpose of:
17-3 (A) identifying and publishing information with
17-4 respect to all flood areas, including coastal areas; and
17-5 (B) establishing flood-risk zones in all such
17-6 areas and making estimates with respect to the rates of probable
17-7 flood-caused loss for the various flood-risk zones for each of
17-8 these areas;
17-9 (8) cooperating with the director's <secretary's>
17-10 studies and investigations with respect to the adequacy of local
17-11 measures in flood-prone areas as to land management and use, flood
17-12 control, flood zoning, and flood damage prevention;
17-13 (9) taking steps, using regional, watershed, and
17-14 multi-objective approaches, to improve the long-range management
17-15 and use of flood-prone areas;
17-16 (10) purchasing, leasing, and receiving property from
17-17 the director <secretary> when such property is owned by the federal
17-18 government and lies within the boundaries of the political
17-19 subdivision pursuant to agreements with the Federal Emergency
17-20 Management Agency <Department of Housing and Urban Development> or
17-21 other appropriate legal representative of the United States
17-22 Government;
17-23 (11) requesting aid pursuant to the entire
17-24 authorization from the commission;
17-25 (12) satisfying criteria adopted and promulgated by
17-26 the commission pursuant to the National Flood Insurance Program;
17-27 <and>
18-1 (13) adopting permanent land use and control measures
18-2 with enforcement provisions which are consistent with the criteria
18-3 for land management and use adopted by the director; <secretary>
18-4 (14) adopting more comprehensive floodplain management
18-5 rules the political subdivision determines are necessary and
18-6 appropriate to protect public health and safety; and
18-7 (15) adopting siting standards for police, hospital,
18-8 and other critical or emergency facilities to ensure that the
18-9 facilities are constructed, or flood-proofed to an elevation that
18-10 is, above the base flood elevation.
18-11 SECTION 10. Subchapter I, Chapter 16, Water Code, is amended
18-12 by adding Section 16.3151 to read as follows:
18-13 Sec. 16.3151. COUNTY AND MUNICIPAL FLOOD-SAFE CONSTRUCTION
18-14 STANDARDS. A municipality by ordinance and a county by order shall
18-15 require the construction of a new structure or the substantial
18-16 renovation of an existing structure within its jurisdiction to be:
18-17 (1) at least one foot above the base flood elevation;
18-18 or
18-19 (2) made flood-proof to at least one foot above the
18-20 base flood elevation.
18-21 SECTION 11. Section 16.316, Water Code, is amended to read
18-22 as follows:
18-23 Sec. 16.316. Coordination of Local, State, and Federal
18-24 Programs by Commission. (a) The commission shall aid, advise, and
18-25 coordinate the efforts of present and future political subdivisions
18-26 endeavoring to qualify for participation in the National Flood
18-27 Insurance Program.
19-1 (b) Pursuant to the National Flood Insurance Program and
19-2 state and local efforts complementing the program, the commission
19-3 shall aid, advise, and cooperate with political subdivisions, the
19-4 State Board of Insurance, and the Federal Emergency Management
19-5 Agency <United States Department of Housing and Urban Development>
19-6 when aid, advice, and cooperation are requested or when the
19-7 commission considers aid, advice, and cooperation to be advisable
19-8 <deemed advisable by the board>.
19-9 (c) The aforementioned aid may include but is not
19-10 necessarily limited to:
19-11 (1) coordinating local, state, and federal programs
19-12 relating to floods, flood losses, and floodplain management;
19-13 (2) evaluating the present structure of all federal,
19-14 state, and political subdivision flood control programs within or
19-15 adjacent to the state, including an assessment of the extent to
19-16 which public and private floodplain management activities have been
19-17 instituted;
19-18 (3) carrying out studies with respect to the adequacy
19-19 of present public and private measures, laws, regulations, and
19-20 ordinances in flood-prone areas as to land management and use,
19-21 flood control, flood zoning, and flood damage prevention;
19-22 (4) evaluating all available engineering, hydrologic,
19-23 and geologic data relevant to flood-prone areas and flood control
19-24 in those areas; <and>
19-25 (5) carrying out floodplain studies and mapping
19-26 programs of floodplains, flood-prone areas, and flood-risk zones;
19-27 (6) providing technical assistance;
20-1 (7) assisting and encouraging a political subdivision
20-2 to enter the National Flood Insurance Program community rating
20-3 system; and
20-4 (8) ensuring that plans for improvements consider the
20-5 effects of the improvements throughout the watershed, including
20-6 effects on nonpoint source pollution, wetlands, wildlife, wildlife
20-7 habitat, runoff characteristics, and erosion.
20-8 (d) On the basis of such studies and evaluations, the
20-9 commission, to the extent of its capabilities, shall periodically
20-10 identify and publish information and maps with respect to all
20-11 floodplain areas, including the state's coastal area, which have
20-12 flood hazards, and where possible aid the federal government in
20-13 identifying and establishing flood-risk zones in all such areas.
20-14 SECTION 12. Subchapter I, Chapter 16, Water Code, is amended
20-15 by adding Sections 16.3161, 16.3162, and 16.3163 to read as
20-16 follows:
20-17 Sec. 16.3161. COMMISSION REVIEW OF ORDINANCES. (a) Before
20-18 the governing body of a political subdivision adopts or amends an
20-19 ordinance or order that, if adopted or amended, might affect the
20-20 subdivision's participation in the National Flood Insurance
20-21 Program, the governing body shall send the text of the ordinance to
20-22 the commission.
20-23 (b) Subsection (a) of this section does not apply to an
20-24 ordinance or order proposed to be adopted in response to an
20-25 emergency. The governing body of a political subdivision shall
20-26 send the text of an emergency ordinance or order that might affect
20-27 the subdivision's participation in the National Flood Insurance
21-1 Program to the commission for review not later than the third day
21-2 after the date the ordinance or order is adopted.
21-3 (c) The commission shall review an ordinance or order or
21-4 proposed ordinance or order submitted under this section for
21-5 compliance with National Flood Insurance Program rules and for
21-6 uniformity within relevant watersheds.
21-7 (d) The commission shall send comments to the governing body
21-8 within 10 days after the ordinance or order or proposed ordinance
21-9 or order is received.
21-10 Sec. 16.3162. COMMISSION REVIEW OF CONSTRUCTION PLANS. (a)
21-11 A political subdivision by ordinance or order shall require
21-12 construction plans for a planned new structure within the
21-13 subdivision's jurisdiction to be sent to the commission not later
21-14 than the 20th day before the date the construction project begins.
21-15 (b) The commission shall review plans received under
21-16 Subsection (a) of this section to ensure that the plans consider
21-17 the effects of the construction throughout the watershed, including
21-18 the effects on:
21-19 (1) nonpoint source pollution;
21-20 (2) wetlands;
21-21 (3) wildlife;
21-22 (4) wildlife habitat;
21-23 (5) runoff characteristics; and
21-24 (6) erosion.
21-25 (c) The commission shall send to the municipality or county
21-26 its comments on plans submitted under this section within 20 days
21-27 after the date the commission receives the plans.
22-1 Sec. 16.3163. STATE COMPLIANCE WITH NATIONAL FLOOD INSURANCE
22-2 PROGRAM. (a) The commission by rule shall establish standards for
22-3 construction and maintenance of structures owned by the state in
22-4 areas subject to flooding, mudslides, mudflows, or flood-related
22-5 erosion.
22-6 (b) The rules shall at a minimum comply with minimum flood
22-7 plain management criteria and requirements for compliance with
22-8 National Flood Insurance Program regulations for properties owned
22-9 by the state.
22-10 SECTION 13. Sections 16.317-16.319, Water Code, are amended
22-11 to read as follows:
22-12 Sec. 16.317. Cooperation of State Board of Insurance.
22-13 Pursuant to the National Flood Insurance Program, the State Board
22-14 of Insurance shall aid, advise, and cooperate with political
22-15 subdivisions, the commission, and the Federal Emergency Management
22-16 Agency <United States Department of Housing and Urban Development>
22-17 when such aid, advice, and cooperation are requested or deemed
22-18 advisable by the State Board of Insurance.
22-19 Sec. 16.318. Rules. (a) Political subdivisions which
22-20 qualify for the National Flood Insurance Program and<,> the State
22-21 Board of Insurance<, and the commission> may adopt <and promulgate>
22-22 reasonable rules which are necessary for the orderly effectuation
22-23 of the <respective> authorizations in this subchapter <herein>.
22-24 (b) The commission shall adopt rules necessary for the
22-25 orderly effectuation of the authorizations in this subchapter.
22-26 (c) In adopting rules under this section, the commission
22-27 shall cooperate with political subdivisions that qualify for the
23-1 National Flood Insurance Program and solicit the aid and advice of
23-2 those subdivisions.
23-3 Sec. 16.319. Qualification. Political subdivisions wishing
23-4 to qualify under the National Flood Insurance Program shall have
23-5 the authority to do so by complying with the directions of the
23-6 Federal Emergency Management Agency <Department of Housing and
23-7 Urban Development> and by:
23-8 (1) evidencing to the director <secretary> a positive
23-9 interest in securing flood insurance coverage under the National
23-10 Flood Insurance Program; and
23-11 (2) giving to the director <secretary> satisfactory
23-12 assurance that measures will have been adopted for the political
23-13 subdivision which measures will be consistent with the
23-14 comprehensive criteria for land management and use developed by the
23-15 Federal Emergency Management Agency <Department of Housing and
23-16 Urban Development>, and that the application and enforcement of
23-17 such measures will commence as soon as the Federal Emergency
23-18 Management Agency approves the political subdivision's rules
23-19 <technical information on floodways and on controlling elevations
23-20 is available>.
23-21 SECTION 14. Subchapter I, Chapter 16, Water Code, is amended
23-22 by adding Sections 16.322 and 16.323 to read as follows:
23-23 Sec. 16.322. CIVIL PENALTY. (a) A person who constructs or
23-24 maintains a structure in violation of an action taken or ordinance
23-25 or order adopted by a political subdivision under Section 16.315 or
23-26 16.3151 of this code is subject to a civil penalty of not less than
23-27 $100 and not more than $1,000 for each violation and each day of a
24-1 continuing violation.
24-2 (b) The attorney general at the request of a political
24-3 subdivision or a municipal, county, or district attorney may bring
24-4 suit to recover the penalty imposed by Subsection (a) of this
24-5 section.
24-6 (c) A penalty collected under this section shall be
24-7 deposited in the state treasury to the credit of the general
24-8 revenue fund.
24-9 Sec. 16.323. COUNTY CONDEMNATION IN FLOOD-PRONE AREA. A
24-10 county commissioners court may exercise the right of eminent domain
24-11 as provided by Chapter 261, Local Government Code, to:
24-12 (1) condemn a structure that is constructed or
24-13 maintained in violation of an order, ordinance, or action taken
24-14 under Section 16.315 or Section 16.3151 of this code, or that is
24-15 built at or below the base flood elevation to protect the public
24-16 health or safety; or
24-17 (2) acquire real property or an easement on real
24-18 property to prevent future construction of structures at or below
24-19 the base flood elevation.
24-20 SECTION 15. Chapter 51, Water Code, is amended by adding
24-21 Subchapter R to read as follows:
24-22 SUBCHAPTER R. STATEWIDE FLOOD CONTROL IN RIVER BASINS
24-23 Sec. 51.871. COORDINATED BASINWIDE WATER RELEASE FOR FLOOD
24-24 CONTROL. (a) The commission, in conjunction with the U.S. Army
24-25 Corps of Engineers and political subdivisions and reservoir owners
24-26 in each river basin in the state, shall develop and establish a
24-27 coordinated basinwide water release program for flood routing and
25-1 control in each river basin in the state.
25-2 (b) The program must designate for each river basin a single
25-3 entity to operate and maintain the program.
25-4 Sec. 51.872. FLOOD WARNING SYSTEM. The commission in
25-5 conjunction with each political subdivision affected by flooding of
25-6 a river basin shall develop and establish a basinwide flood warning
25-7 system to alert the public and local officials of imminent flooding
25-8 in the basin. The system must be designed to promote orderly
25-9 withdrawal from the floodplains and to institute other appropriate
25-10 precautions.
25-11 Sec. 51.873. RAINFALL AND RIVER FLOW INFORMATION. (a) The
25-12 commission in conjunction with political subdivisions affected by
25-13 flooding of a river basin and in cooperation with the National
25-14 Weather Service shall develop and establish a real-time data
25-15 acquisition system for measuring rainfall and river flow rates to
25-16 aid in reservoir operations and the issuance of public warnings in
25-17 case of flooding conditions.
25-18 (b) The commission by rule shall require reservoir owners
25-19 and affected political subdivisions to install the data acquisition
25-20 system according to a schedule adopted by the commission.
25-21 Sec. 51.874. RIVER BASIN ORDER OF NEED. (a) The
25-22 commission, in performing its duties under this subchapter, shall
25-23 concentrate its efforts on river basins that present:
25-24 (1) a greater need for flood control and warning
25-25 measures because of flood frequency or severity;
25-26 (2) a greater threat to public health or safety;
25-27 (3) a greater threat to property; or
26-1 (4) a combination of those factors.
26-2 (b) The commission shall list the river basins in their
26-3 proposed order of need together with approximate dates for
26-4 establishing the water release program and warning and data
26-5 acquisition systems. The commission shall revise the list as
26-6 necessary and, not later than December 15 of each even-numbered
26-7 year, shall report to the legislature the progress made in
26-8 establishing programs and systems under this subchapter.
26-9 Sec. 51.875. PUBLIC EDUCATION PROGRAM. (a) The commission
26-10 by rule shall require a river authority to develop an education
26-11 program to inform the public about dam and reservoir operations,
26-12 flood warning and emergency procedures, and other issues subject to
26-13 the authority's jurisdiction.
26-14 (b) The authority shall cooperate with reservoir owners and
26-15 the commission in developing the program and in making necessary
26-16 revisions.
26-17 SECTION 16. Subchapter D, Chapter 57, Water Code, is amended
26-18 by adding Sections 57.093 and 57.102 to read as follows:
26-19 Sec. 57.093. COMMISSION APPROVAL OF PLANS FOR IMPROVEMENT.
26-20 (a) A district may not construct or maintain a levee or other
26-21 improvement to control, regulate, or change the floodwaters of a
26-22 stream unless the commission approves of the plans for the
26-23 construction or maintenance.
26-24 (b) On the request of the commission, the attorney general
26-25 shall bring suit in a district court in Travis County to enjoin the
26-26 maintenance or construction of a levee or other improvement that a
26-27 district undertakes to maintain or construct without the
27-1 commission's approval.
27-2 Sec. 57.102. UNLAWFUL CONSTRUCTION OR MAINTENANCE OF A
27-3 LEVEE. (a) A person commits an offense if the person constructs
27-4 or maintains a levee or other improvement on, along, or near any
27-5 stream of this state that is subject to floods, freshets, or
27-6 overflows to control, regulate, or otherwise change the floodwaters
27-7 of the stream without first obtaining the approval of the plans for
27-8 the improvement from the commission as required by Section 57.093
27-9 of this code.
27-10 (b) An offense under this section is a misdemeanor
27-11 punishable by a fine of not less than $100 and not more than $1,000
27-12 or by confinement in jail for not more than one year or by both. A
27-13 separate offense is committed each day an improvement is
27-14 constructed or maintained in violation of this section.
27-15 (c) The provisions of this section do not apply to dams,
27-16 canals, or other improvements made by an individual or corporation
27-17 for the purpose of irrigation or water improvement.
27-18 (d) In this section, "person" includes a corporation,
27-19 organization, government or governmental subdivision or agency,
27-20 association, and any other legal entity.
27-21 SECTION 17. Section 57.155, Water Code, is amended to read
27-22 as follows:
27-23 Sec. 57.155. Contents of Report. (a) The engineer's report
27-24 shall contain a complete plan for draining land, constructing
27-25 levees on land, and reclaiming land of the district from overflow
27-26 or damage by waters from streams inside or adjacent to the district
27-27 which may affect land in the district. In making the plan the
28-1 engineer shall consider the short-term and long-term effects of the
28-2 reclamation project on:
28-3 (1) nonpoint source pollution;
28-4 (2) wetlands;
28-5 (3) wildlife;
28-6 (4) wildlife habitat;
28-7 (5) runoff characteristics; and
28-8 (6) erosion.
28-9 (b) The report shall also include a description of the
28-10 physical characteristics of the land within the district and the
28-11 location of any public roads, railroads, rights-of-way and
28-12 roadways, and other improvements on the land of the district.
28-13 (c) <(b)> The plan may include, and where necessary must
28-14 include, the costs of straightening streams which may injure the
28-15 land of the district.
28-16 SECTION 18. Subchapter I, Chapter 57, Water Code, is amended
28-17 by adding Section 57.347 to read as follows:
28-18 Sec. 57.347. RESPONSIBILITY FOR DISTRICT IMPROVEMENTS. The
28-19 commissioners court may not close the trust estate unless the
28-20 commissioners court or another political subdivision or state
28-21 agency in writing accepts responsibility for the maintenance or
28-22 removal of each improvement or structure constructed or maintained
28-23 by the district that controls, regulates, or otherwise changes the
28-24 floodwater of a stream.
28-25 SECTION 19. Subtitle C, Title 7, Local Government Code, is
28-26 amended by adding Chapter 244 to read as follows:
28-27 CHAPTER 244. COUNTY AND MUNICIPAL ZONING OF
29-1 LAKESIDE OR RESERVOIR AREAS
29-2 Sec. 244.001. LAND USE REGULATION FOR FLOOD SAFETY. A
29-3 county or municipality shall adopt, administer, and enforce zoning
29-4 or land use regulations to prevent construction in an area that
29-5 borders a lake or reservoir that is prone to flooding or erosion
29-6 from flooding in a 100-year flood event.
29-7 SECTION 20. The initial dam registration fee imposed by
29-8 Section 16.239, Water Code, as added by Section 6 of this Act, must
29-9 be paid on or before December 31, 1993.
29-10 SECTION 21. (a) The changes in law made by this Act apply
29-11 only to a violation of a law, rule, action, or order that occurs on
29-12 or after the effective date of this Act.
29-13 (b) For the purpose of this section, a violation of a law,
29-14 rule, action, or order occurs before the effective date of this Act
29-15 if any element of the violation occurs before that date.
29-16 SECTION 22. The importance of this legislation and the
29-17 crowded condition of the calendars in both houses create an
29-18 emergency and an imperative public necessity that the
29-19 constitutional rule requiring bills to be read on three several
29-20 days in each house be suspended, and this rule is hereby suspended,
29-21 and that this Act take effect and be in force from and after its
29-22 passage, and it is so enacted.