By Hamric H.B. No. 2977 76R6645 WP-F 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 Clean Water 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 the federal 1-12 Clean Water Act (33 U.S.C. Section 1344), as amended, in counties 1-13 in which regional flood control plans have been developed. 1-14 SECTION 2. Chapter 16, Water Code, is amended by adding 1-15 Subchapter K to read as follows: 1-16 SUBCHAPTER K. REGIONAL FLOOD CONTROL PLANS 1-17 Sec. 16.381. APPLICABILITY. This subchapter applies only 1-18 to: 1-19 (1) a county with a population of 2.8 million or more; 1-20 and 1-21 (2) a district created under Section 59, Article XVI, 1-22 Texas Constitution, that: 1-23 (A) has boundaries coextensive with a county 1-24 described by Subdivision (1); and 2-1 (B) is authorized to provide stormwater drainage 2-2 and flood control facilities. 2-3 Sec. 16.382. REGIONAL FLOOD CONTROL PLANNING. (a) A 2-4 district and county may cooperate to develop and adopt a regional 2-5 flood control plan that discourages development and nonconforming 2-6 use in flood-prone areas and identifies areas within the county 2-7 that are flood-prone and areas that are not flood-prone based on: 2-8 (1) elevation; 2-9 (2) drainage patterns and frequency of flooding; 2-10 (3) flood-risk zones established by the county under 2-11 Section 16.315; and 2-12 (4) flood control maps adopted by the county. 2-13 (b) The regional flood control plan must: 2-14 (1) include all land located within the boundaries of 2-15 a district that cooperates in preparing a regional plan; and 2-16 (2) be consistent with a master drainage plan adopted 2-17 by the district. 2-18 Sec. 16.383. AUTHORITY TO ACQUIRE LAND. A district that 2-19 prepares a regional flood control plan may purchase or receive from 2-20 a landowner property in the county. For land purchased or received 2-21 under this subsection by a district or county, the regional flood 2-22 control plan must provide passive flood control and may identify 2-23 beneficial uses, including habitat restoration, natural flood-plain 2-24 storage, parks, green space, intermodal transportation corridors, 2-25 and potential contracts with nonprofit corporations for 2-26 conservation uses. 2-27 Sec. 16.384. RULES. The regional flood control plan must 3-1 include rules requiring any development in the county to conform 3-2 with land use and control measures adopted by the district or 3-3 county under Section 16.315. 3-4 Sec. 16.385. FUNDING. The regional flood control plan may, 3-5 and the commission shall assist districts and counties to, identify 3-6 possible means of funding for the purchase of land, including: 3-7 (1) imposing fees to substitute for mitigation 3-8 activities on development in areas that are not flood-prone; 3-9 (2) using money distributed from the county flood 3-10 control fund by the commissioners court of the county under Section 3-11 256.006, Transportation Code; 3-12 (3) using grants from the Texas Water Development 3-13 Board under the Texas Water Assistance Program in Chapter 15; 3-14 (4) using grants from any agency or program of the 3-15 United States government; and 3-16 (5) using money paid by a proponent of development in 3-17 areas of the flood-control planning region that are not flood-prone 3-18 and where development is encouraged. 3-19 Sec. 16.386. ADOPTION OF PLAN. (a) A district that 3-20 approves the development of a regional flood control plan under 3-21 this subchapter must notify the commission that a regional flood 3-22 control plan will be developed and must identify the boundaries of 3-23 the region to be included within the regional flood control plan. 3-24 The district must complete and adopt regional flood control plans 3-25 not later than September 1, 2001. 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 county commissioners court. 4-3 (c) Not later than the 90th day after the commissioners 4-4 court receives the regional flood control plan, the commissioners 4-5 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) Not later than the 90th day after the date the district 4-12 receives comments from the commissioners court, the district shall 4-13 revise the regional flood control plan and submit the revised plan 4-14 to the commissioners court for review and approval. 4-15 Sec. 16.387. FEES. The district may impose fees set by the 4-16 commissioners court to be paid to the district to substitute for 4-17 compensatory mitigation by proponents of projects in an area 4-18 identified in the regional flood control plan as not flood-prone 4-19 and suitable for development. The district shall use money from 4-20 the fees to acquire land in the areas identified as flood-prone and 4-21 not suitable for development. 4-22 SECTION 3. Subchapter B, Chapter 26, Water Code, is amended 4-23 by adding Section 26.0231 to read as follows: 4-24 Sec. 26.0231. CERTIFICATION OF FEDERALLY AUTHORIZED 4-25 DISCHARGES. (a) The commission may exercise the powers reserved 4-26 to the state under the federal Clean Water Act (33 U.S.C. Section 4-27 1341), as amended, to: 5-1 (1) certify that the discharge of a pollutant will not 5-2 cause a violation of applicable water quality standards; or 5-3 (2) waive certification. 5-4 (b) The commission shall waive its review under this section 5-5 until September 1, 2001, for a project undertaken in a district 5-6 that has notified the commission under Subchapter K, Chapter 16, 5-7 Water Code, that development of a regional flood control plan has 5-8 begun, unless: 5-9 (1) an environmental impact statement is required 5-10 under the National Environmental Policy Act; or 5-11 (2) clear evidence exists of likely violations of 5-12 state numerical water quality criteria or interference with the 5-13 state water quality plans. 5-14 (c) The commission shall waive its review under this section 5-15 for projects intended primarily to prevent or minimize flooding or 5-16 improve drainage. 5-17 (d) The policy of the commission in exercising its authority 5-18 under this section shall be to promote mitigation of damages or 5-19 payment to substitute for compensatory mitigation. During the 5-20 waiver period required by Subsection (b), the commission shall 5-21 recognize and accept decisions made by the United States Army Corps 5-22 of Engineers under the federal Clean Water Act (33 U.S.C. Section 5-23 1344), as amended, regarding the appropriate scope and extent of 5-24 compensatory mitigation for a project, unless clear evidence exists 5-25 of likely violation of state numerical water quality criteria or 5-26 interference with state water quality plans. 5-27 (e) The commission by rule shall develop an expedited 6-1 certification review process under Subsection (a) for: 6-2 (1) projects to be located in an area identified in a 6-3 regional flood control plan adopted under Subchapter K, Chapter 16, 6-4 Water Code, as located outside flood-prone areas and appropriate 6-5 for development; or 6-6 (2) infrastructure projects to be located in areas 6-7 identified in a regional flood control plan adopted under 6-8 Subchapter K, Chapter 16, Water Code, as flood-prone areas and not 6-9 appropriate for development. 6-10 (f) The commission shall assist districts that adopt 6-11 regional flood control plans under Subchapter K, Chapter 16, Water 6-12 Code, to create a system for payment to a district that adopts a 6-13 regional flood control plan by proponents of projects in areas 6-14 identified in the regional flood control plan as located outside 6-15 the flood-prone areas and suitable for development of fees in lieu 6-16 of compensatory mitigation. The fees shall be used by the plan 6-17 participants for acquisition of land in the areas identified as 6-18 flood-prone and not suitable for development. 6-19 SECTION 4. The importance of this legislation and the 6-20 crowded condition of the calendars in both houses create an 6-21 emergency and an imperative public necessity that the 6-22 constitutional rule requiring bills to be read on three several 6-23 days in each house be suspended, and this rule is hereby suspended, 6-24 and that this Act take effect and be in force from and after its 6-25 passage, and it is so enacted.