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.