By Hamric H.B. No. 2977
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of the Texas Natural Resource
1-3 Conservation Commission to certify that the discharge of a
1-4 pollutant will not cause a violation of certain water quality
1-5 standards under the Federal Water Pollution Control Act.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 5.104, Water Code, is amended by adding
1-8 Subsection (c) to read as follows:
1-9 (c) The commission shall use its best efforts to develop a
1-10 memorandum of understanding with the United States Army Corps of
1-11 Engineers to foster regional programmatic permits under Section
1-12 404, Federal Water Pollution Control Act (33 U.S.C. Section 1344),
1-13 as amended, in counties in which regional flood control plans have
1-14 been developed.
1-15 SECTION 2. Chapter 16, Water Code, is amended by adding
1-16 Subchapter K to read as follows:
1-17 SUBCHAPTER K. REGIONAL FLOOD CONTROL PLANS
1-18 Sec. 16.381. APPLICABILITY. This subchapter applies only
1-19 to:
1-20 (1) a county with a population of 2.8 million or more;
1-21 and
1-22 (2) a district created under Section 59, Article XVI,
1-23 Texas Constitution, that:
1-24 (A) has boundaries coextensive with a county
2-1 described by Subdivision (1); and
2-2 (B) is authorized to provide storm water
2-3 drainage and flood control facilities.
2-4 Sec. 16.382. REGIONAL FLOOD CONTROL PLANNING. (a) A
2-5 district and county may cooperate to develop and adopt a regional
2-6 flood control plan in the manner provided by Sections 16.315 and
2-7 16.316.
2-8 (b) The regional flood control plan must:
2-9 (1) include all land located within the boundaries of
2-10 a district that cooperates in preparing a regional plan; and
2-11 (2) be consistent with a master drainage plan adopted
2-12 by the district.
2-13 Sec. 16.383. AUTHORITY TO ACQUIRE LAND. (a) A district
2-14 that prepares a regional flood control plan may purchase or receive
2-15 from a landowner property in the county. For land purchased or
2-16 received under this subsection by a district or county, the
2-17 regional flood control plan must provide for flood mitigation and
2-18 may identify beneficial uses, including habitat restoration,
2-19 natural floodplain storage, parks, green space, intermodal
2-20 transportation corridors, and potential contracts with nonprofit
2-21 corporations for conservation uses.
2-22 (b) A district may not acquire land under this subchapter by
2-23 the power of eminent domain.
2-24 Sec. 16.384. RULES. The regional flood control plan must
2-25 include rules requiring any development in the county to conform
2-26 with land use and control measures adopted by the district or
2-27 county under Section 16.315.
3-1 Sec. 16.385. FUNDING. (a) The regional flood control plan
3-2 may identify possible means of funding for the purchase of land,
3-3 including using:
3-4 (1) fees as provided under Chapter 395, Local
3-5 Government Code;
3-6 (2) money distributed from the county flood control
3-7 fund by the commissioners court of the county under Section
3-8 256.006, Transportation Code;
3-9 (3) grants from the Texas Water Development Board
3-10 under the Texas Water Assistance Program in Chapter 15;
3-11 (4) grants from any agency or program of the United
3-12 States government;
3-13 (5) tax and other revenue of a district created under
3-14 Section 59, Article XVI, Texas Constitution; and
3-15 (6) any available funding authorized by state or
3-16 federal law, including fees collected under Section 16.387.
3-17 (b) A district that adopts a regional flood control plan
3-18 under this subchapter may request advice from the Texas Water
3-19 Development Board to identify means to finance the purchase of
3-20 land.
3-21 Sec. 16.386. ADOPTION OF PLAN. (a) A district that
3-22 approves the development of a regional flood control plan under
3-23 this subchapter must notify the commission that a regional flood
3-24 control plan will be developed and must identify the boundaries of
3-25 the region to be included within the regional flood control plan.
3-26 (b) Before final adoption of a regional flood control plan
3-27 authorized under this subchapter, the district must send the plan
4-1 to the commissioners court of the county for the review and
4-2 approval of the commissioners court.
4-3 (c) Not later than the 120th day after the date the
4-4 commissioners court receives the regional flood control plan, the
4-5 commissioners court shall:
4-6 (1) adopt a resolution of approval and present the
4-7 resolution to the district that submitted the plan; or
4-8 (2) provide comments to the district indicating the
4-9 changes in the plan that are required for the commissioners court
4-10 to approve the plan.
4-11 (d) Before the commissioners court acts on a plan under
4-12 Subsection (c), the commissioners court shall conduct at least one
4-13 public meeting to receive comments. Notice of the meeting must be
4-14 published in a local newspaper of general circulation in the county
4-15 not earlier than the 30th day and not later than the 10th day
4-16 before the date of the hearing. At the meeting any person may
4-17 present information and data relevant to the proposed regional
4-18 flood control plan.
4-19 (e) Not later than the 90th day after the date the district
4-20 receives comments from the commissioners court, the district shall
4-21 revise the regional flood control plan and submit the revised plan
4-22 to the commissioners court for review and approval.
4-23 Sec. 16.387. FEES. For permit applications in the district
4-24 under Section 404, Federal Water Pollution Control Act (33 U.S.C.
4-25 Section 1344), the district may facilitate the development of
4-26 alternative wetland mitigation programs. A program may include the
4-27 imposition of fees instead of wetland mitigation activities. The
5-1 district shall use money from the fees to acquire land in the areas
5-2 identified as flood hazard areas and not suitable for development.
5-3 SECTION 3. Subchapter B, Chapter 26, Water Code, is amended
5-4 by adding Section 26.0231 to read as follows:
5-5 Sec. 26.0231. CERTIFICATION OF FEDERALLY AUTHORIZED
5-6 DISCHARGES. (a) The commission may exercise the powers reserved
5-7 to the state under Section 401, Federal Water Pollution Control Act
5-8 (33 U.S.C. Section 1341), as amended, to:
5-9 (1) certify that the discharge of a pollutant will not
5-10 cause a violation of applicable water quality standards; or
5-11 (2) waive certification.
5-12 (b) The commission shall waive its review under this section
5-13 until September 1, 2001, for a project undertaken in a district
5-14 that has notified the commission under Subchapter K, Chapter 16,
5-15 that development of a regional flood control plan has begun,
5-16 unless:
5-17 (1) an environmental impact statement is required
5-18 under the National Environmental Policy Act of 1969 (42 U.S.C.
5-19 Section 4321 et seq.); or
5-20 (2) a review is necessary to maintain delegation of a
5-21 federally delegated program or approval of a federally approved
5-22 program.
5-23 (c) The commission shall waive its review under this section
5-24 for projects intended primarily to prevent or minimize flooding or
5-25 improve drainage.
5-26 (d) The policy of the commission in exercising its authority
5-27 under this section shall be to promote compensatory wetland
6-1 mitigation or payment of fees to substitute for wetland mitigation.
6-2 During the waiver period required by Subsection (b), the commission
6-3 shall recognize and accept decisions made by the United States Army
6-4 Corps of Engineers under Section 404, Federal Water Pollution
6-5 Control Act (33 U.S.C. Section 1344), as amended, regarding the
6-6 appropriate scope and extent of compensatory mitigation for a
6-7 project, except where necessary to maintain delegation of a
6-8 federally delegated program or approval of a federally approved
6-9 program.
6-10 (e) The commission by rule shall develop an expedited
6-11 certification review process under Subsection (a) for:
6-12 (1) projects to be located in an area identified in a
6-13 regional flood control plan adopted under Subchapter K, Chapter 16,
6-14 as located outside flood hazard areas and appropriate for
6-15 development; or
6-16 (2) infrastructure projects to be located in areas
6-17 identified in a regional flood control plan adopted under
6-18 Subchapter K, Chapter 16, as flood hazard areas and not appropriate
6-19 for development.
6-20 (f) If a review process is required to maintain delegation
6-21 of a federally delegated program or approval of a federally
6-22 approved program, the commission shall develop a review process
6-23 that:
6-24 (1) complies with approved water quality standards;
6-25 (2) is not more stringent than the process required by
6-26 federal law;
6-27 (3) provides acreage thresholds, geographic
7-1 limitations, expedited review processes, and waivers of certain
7-2 project types;
7-3 (4) eliminates duplication of federal activities to
7-4 the extent possible; and
7-5 (5) assists applicants in complying with water quality
7-6 standards.
7-7 (g) A district that adopts a regional flood control plan
7-8 under Subchapter K, Chapter 16, may request assistance from the
7-9 Texas Water Development Board to create a system for payment to the
7-10 district by proponents of projects in areas identified in the
7-11 regional flood control plan as located outside the flood hazard
7-12 areas and suitable for development of fees instead of compensatory
7-13 wetlands mitigation. The fees shall be used by the plan
7-14 participants for acquisition of land in the areas identified as
7-15 flood hazard areas and not suitable for development.
7-16 SECTION 4. The importance of this legislation and the
7-17 crowded condition of the calendars in both houses create an
7-18 emergency and an imperative public necessity that the
7-19 constitutional rule requiring bills to be read on three several
7-20 days in each house be suspended, and this rule is hereby suspended,
7-21 and that this Act take effect and be in force from and after its
7-22 passage, and it is so enacted.