1-1 By: Hamric (Senate Sponsor - Lindsay) H.B. No. 2977 1-2 (In the Senate - Received from the House May 10, 1999; 1-3 May 10, 1999, read first time and referred to Committee on Natural 1-4 Resources; May 13, 1999, reported favorably, as amended, by the 1-5 following vote: Yeas 5, Nays 0; May 13, 1999, sent to printer.) 1-6 COMMITTEE AMENDMENT NO. 1 By: Bivins 1-7 Amend H.B. 2977 (House Engrossment) as follows: 1-8 (1) In SECTION 26.0231 of the bill strike subsection (c) 1-9 (page 3, lines 15 to 18) and substitute the following: 1-10 "(c) With respect to the activities described in Section 1-11 26.131, Water Code, the Railroad Commission of Texas may exercise 1-12 the powers reserved to the state under the Federal Water Pollution 1-13 Control Act (33 U.S.C. Section 1341), as amended." 1-14 (2) In SECTION 26.0231 of the bill after "mitigation" and 1-15 before the "." insert "in compliance with state water quality 1-16 standards" 1-17 (3) In SECTION 26.0231 of the bill, page 3, strike lines 21 1-18 through 28. 1-19 A BILL TO BE ENTITLED 1-20 AN ACT 1-21 relating to the authority of the Texas Natural Resource 1-22 Conservation Commission to certify that the discharge of a 1-23 pollutant will not cause a violation of certain water quality 1-24 standards under the Federal Water Pollution Control Act. 1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-26 SECTION 1. Section 5.104, Water Code, is amended by adding 1-27 Subsection (c) to read as follows: 1-28 (c) The commission shall use its best efforts to develop a 1-29 memorandum of understanding with the United States Army Corps of 1-30 Engineers to foster regional programmatic permits under Section 1-31 404, Federal Water Pollution Control Act (33 U.S.C. Section 1344), 1-32 as amended, in counties in which regional flood control plans have 1-33 been developed. 1-34 SECTION 2. Chapter 16, Water Code, is amended by adding 1-35 Subchapter K to read as follows: 1-36 SUBCHAPTER K. REGIONAL FLOOD CONTROL PLANS 1-37 Sec. 16.381. APPLICABILITY. This subchapter applies only 1-38 to: 1-39 (1) a county with a population of 2.8 million or more; 1-40 and 1-41 (2) a district created under Section 59, Article XVI, 1-42 Texas Constitution, that: 1-43 (A) has boundaries coextensive with a county 1-44 described by Subdivision (1); and 1-45 (B) is authorized to provide storm water 1-46 drainage and flood control facilities. 1-47 Sec. 16.382. REGIONAL FLOOD CONTROL PLANNING. (a) A 1-48 district and county may cooperate to develop and adopt a regional 1-49 flood control plan in the manner provided by Sections 16.315 and 1-50 16.316. 1-51 (b) The regional flood control plan must: 1-52 (1) include all land located within the boundaries of 1-53 a district that cooperates in preparing a regional plan; and 1-54 (2) be consistent with a master drainage plan adopted 1-55 by the district. 1-56 Sec. 16.383. AUTHORITY TO ACQUIRE LAND. (a) A district 1-57 that prepares a regional flood control plan may purchase or receive 1-58 from a landowner property in the county. For land purchased or 1-59 received under this subsection by a district or county, the 1-60 regional flood control plan must provide for flood mitigation and 1-61 may identify beneficial uses, including habitat restoration, 1-62 natural floodplain storage, parks, green space, intermodal 1-63 transportation corridors, and potential contracts with nonprofit 2-1 corporations for conservation uses. 2-2 (b) A district may not acquire land under this subchapter by 2-3 the power of eminent domain. 2-4 Sec. 16.384. RULES. The regional flood control plan must 2-5 include rules requiring any development in the county to conform 2-6 with land use and control measures adopted by the district or 2-7 county under Section 16.315. 2-8 Sec. 16.385. FUNDING. (a) The regional flood control plan 2-9 may identify possible means of funding for the purchase of land, 2-10 including using: 2-11 (1) fees as provided under Chapter 395, Local 2-12 Government Code; 2-13 (2) money distributed from the county flood control 2-14 fund by the commissioners court of the county under Section 2-15 256.006, Transportation Code; 2-16 (3) grants from the Texas Water Development Board 2-17 under the Texas Water Assistance Program in Chapter 15; 2-18 (4) grants from any agency or program of the United 2-19 States government; 2-20 (5) tax and other revenue of a district created under 2-21 Section 59, Article XVI, Texas Constitution; and 2-22 (6) any available funding authorized by state or 2-23 federal law, including fees collected under Section 16.387. 2-24 (b) A district that adopts a regional flood control plan 2-25 under this subchapter may request advice from the Texas Water 2-26 Development Board to identify means to finance the purchase of 2-27 land. 2-28 Sec. 16.386. ADOPTION OF PLAN. (a) A district that 2-29 approves the development of a regional flood control plan under 2-30 this subchapter must notify the commission that a regional flood 2-31 control plan will be developed and must identify the boundaries of 2-32 the region to be included within the regional flood control plan. 2-33 (b) Before final adoption of a regional flood control plan 2-34 authorized under this subchapter, the district must send the plan 2-35 to the commissioners court of the county for the review and 2-36 approval of the commissioners court. 2-37 (c) Not later than the 120th day after the date the 2-38 commissioners court receives the regional flood control plan, the 2-39 commissioners court shall: 2-40 (1) adopt a resolution of approval and present the 2-41 resolution to the district that submitted the plan; or 2-42 (2) provide comments to the district indicating the 2-43 changes in the plan that are required for the commissioners court 2-44 to approve the plan. 2-45 (d) Before the commissioners court acts on a plan under 2-46 Subsection (c), the commissioners court shall conduct at least one 2-47 public meeting to receive comments. Notice of the meeting must be 2-48 published in a local newspaper of general circulation in the county 2-49 not earlier than the 30th day and not later than the 10th day 2-50 before the date of the hearing. At the meeting any person may 2-51 present information and data relevant to the proposed regional 2-52 flood control plan. 2-53 (e) Not later than the 90th day after the date the district 2-54 receives comments from the commissioners court, the district shall 2-55 revise the regional flood control plan and submit the revised plan 2-56 to the commissioners court for review and approval. 2-57 Sec. 16.387. FEES. For permit applications in the district 2-58 under Section 404, Federal Water Pollution Control Act (33 U.S.C. 2-59 Section 1344), the district may facilitate the development of 2-60 alternative wetland mitigation programs. A program may include the 2-61 imposition of fees instead of wetland mitigation activities. The 2-62 district shall use money from the fees to acquire land in the areas 2-63 identified as flood hazard areas and not suitable for development. 2-64 SECTION 3. Subchapter B, Chapter 26, Water Code, is amended 2-65 by adding Section 26.0231 to read as follows: 2-66 Sec. 26.0231. CERTIFICATION OF FEDERALLY AUTHORIZED 2-67 DISCHARGES. (a) The commission may exercise the powers reserved 2-68 to the state under Section 401, Federal Water Pollution Control Act 2-69 (33 U.S.C. Section 1341), as amended, to: 3-1 (1) certify that the discharge of a pollutant will not 3-2 cause a violation of applicable water quality standards; or 3-3 (2) waive certification. 3-4 (b) The commission shall waive its review under this section 3-5 until September 1, 2001, for a project undertaken in a district 3-6 that has notified the commission under Subchapter K, Chapter 16, 3-7 that development of a regional flood control plan has begun, 3-8 unless: 3-9 (1) an environmental impact statement is required 3-10 under the National Environmental Policy Act of 1969 (42 U.S.C. 3-11 Section 4321 et seq.); or 3-12 (2) a review is necessary to maintain delegation of a 3-13 federally delegated program or approval of a federally approved 3-14 program. 3-15 (c) The commission shall waive its review under this section 3-16 for projects intended primarily to prevent or minimize flooding or 3-17 improve drainage. 3-18 (d) The policy of the commission in exercising its authority 3-19 under this section shall be to promote compensatory wetland 3-20 mitigation or payment of fees to substitute for wetland mitigation. 3-21 During the waiver period required by Subsection (b), the commission 3-22 shall recognize and accept decisions made by the United States Army 3-23 Corps of Engineers under Section 404, Federal Water Pollution 3-24 Control Act (33 U.S.C. Section 1344), as amended, regarding the 3-25 appropriate scope and extent of compensatory mitigation for a 3-26 project, except where necessary to maintain delegation of a 3-27 federally delegated program or approval of a federally approved 3-28 program. 3-29 (e) The commission by rule shall develop an expedited 3-30 certification review process under Subsection (a) for: 3-31 (1) projects to be located in an area identified in a 3-32 regional flood control plan adopted under Subchapter K, Chapter 16, 3-33 as located outside flood hazard areas and appropriate for 3-34 development; or 3-35 (2) infrastructure projects to be located in areas 3-36 identified in a regional flood control plan adopted under 3-37 Subchapter K, Chapter 16, as flood hazard areas and not appropriate 3-38 for development. 3-39 (f) If a review process is required to maintain delegation 3-40 of a federally delegated program or approval of a federally 3-41 approved program, the commission shall develop a review process 3-42 that: 3-43 (1) complies with approved water quality standards; 3-44 (2) is not more stringent than the process required by 3-45 federal law; 3-46 (3) provides acreage thresholds, geographic 3-47 limitations, expedited review processes, and waivers of certain 3-48 project types; 3-49 (4) eliminates duplication of federal activities to 3-50 the extent possible; and 3-51 (5) assists applicants in complying with water quality 3-52 standards. 3-53 (g) A district that adopts a regional flood control plan 3-54 under Subchapter K, Chapter 16, may request assistance from the 3-55 Texas Water Development Board to create a system for payment to the 3-56 district by proponents of projects in areas identified in the 3-57 regional flood control plan as located outside the flood hazard 3-58 areas and suitable for development of fees instead of compensatory 3-59 wetlands mitigation. The fees shall be used by the plan 3-60 participants for acquisition of land in the areas identified as 3-61 flood hazard areas and not suitable for development. 3-62 SECTION 4. The importance of this legislation and the 3-63 crowded condition of the calendars in both houses create an 3-64 emergency and an imperative public necessity that the 3-65 constitutional rule requiring bills to be read on three several 3-66 days in each house be suspended, and this rule is hereby suspended, 3-67 and that this Act take effect and be in force from and after its 3-68 passage, and it is so enacted. 4-1 * * * * *