80R7691 SMH-F

By: Creighton H.B. No. 3073

A BILL TO BE ENTITLED

AN ACT

relating to the transfer of authority for dam safety and levee management from the Texas Commission on Environmental Quality to the division of emergency management in the office of the governor and the transfer of authority for the National Flood Insurance Program from the commission to the Texas Water Development Board.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 5.013(a), Water Code, is amended to read as follows:

(a) The commission has general jurisdiction over:

(1) water and water rights including the issuance of water rights permits, water rights adjudication, cancellation of water rights, and enforcement of water rights;

(2) continuing supervision over districts created under Article III, Sections 52(b)(1) and (2), and Article XVI, Section 59, of the Texas Constitution;

(3) the state's water quality program including issuance of permits, enforcement of water quality rules, standards, orders, and permits, and water quality planning;

(4) the determination of the feasibility of certain federal projects;

(5) [the adoption and enforcement of rules and performance of other acts relating to the safe construction, maintenance, and removal of dams;

[(6)] conduct of the state's hazardous spill prevention and control program;

(6) [(7)] the administration of the state's program relating to inactive hazardous substance, pollutant, and contaminant disposal facilities;

(7) [(8)] the administration of a portion of the state's injection well program;

(8) [(9)] the administration of the state's programs involving underground water and water wells and drilled and mined shafts;

(9) [(10)] the state's responsibilities relating to regional waste disposal;

(10) [(11)] the responsibilities assigned to the commission by Chapters 361, 363, 382, and 401, Health and Safety Code;

(11) [(12) the administration of the national flood insurance program;

[(13)] administration of the state's water rate program under Chapter 13 [of this code]; and

(12) [(14)] any other areas assigned to the commission by this code and other laws of this state.

SECTION 2. Sections 11.0842(a) and (b), Water Code, are amended to read as follows:

(a) If a person violates this chapter, a rule or order adopted under this chapter [or Section 16.236 of this code], or a permit, certified filing, or certificate of adjudication issued under this chapter, the commission may assess an administrative penalty against that person as provided by this section.

(b) The penalty may be in an amount not to exceed $5,000 for each day the person is in violation of this chapter, the rule or order adopted under this chapter, or the permit, certified filing, or certificate of adjudication issued under this chapter. [The penalty may be in an amount not to exceed $1,000 for each day the person is in violation of the rule or order adopted under Section 16.236 of this code.] Each day a violation continues may be considered a separate violation for purposes of penalty assessment.

SECTION 3. Section 11.126(c), Water Code, is amended to read as follows:

(c) If the application proposes construction of a dam greater than six feet in height either for diversion or storage, the executive director may also require filing a copy of all plans and specifications and a copy of the engineer's field notes of any survey of the lake or reservoir. No work on the project shall proceed until the applicant submits plans to the executive director that have been approved by the division of emergency management in the office of the governor [approval of the plans is obtained from the executive director].

SECTION 4. Chapter 418, Government Code, is amended by adding Subchapter I with a heading to read as follows: SUBCHAPTER I. DAM SAFETY AND LEVEE MANAGEMENT

SECTION 5. Section 12.052, Water Code, is transferred to Subchapter I, Chapter 418, Government Code, as added by this Act, redesignated as Section 418.201, Government Code, and amended to read as follows:

Sec. 418.201 [12.052]. DAM SAFETY. (a) The division [commission] shall make and enforce rules and orders and shall perform all other acts necessary to provide for the safe construction, maintenance, repair, and removal of dams located in this state.

(b) Rules and orders made by the division [commission] shall be made after proper notice and hearing as provided in the rules of the division [commission].

(c) If the owner of a dam that is required to be constructed, reconstructed, repaired, or removed in order to comply with the rules and orders promulgated under Subsection (a) [of this section] wilfully fails or refuses to comply within the 30-day period following the date of the division's [commission's] final, nonappealable order to do so or if a person wilfully fails to comply with any rule or other order issued by the division [commission] under this section within the 30-day period following the effective date of the order, the owner or person [he] is liable to a penalty of not more than $5,000 a day for each day the owner or person [he] continues to violate this section. The state may recover the penalty by suit brought for that purpose in the district court of Travis County.

(d) If the division [commission] determines that the existing condition of the dam is creating or will cause extensive or severe property damage or economic loss to others or is posing an immediate and serious threat to human life or health and that other procedures available to the division [commission] to remedy or prevent the occurrence of the situation will result in unreasonable delay, the division [commission] may issue an emergency order, either mandatory or prohibitory in nature, directing the owner of a dam to repair, modify, maintain, dewater, or remove the dam which the division [commission] determines is unsafe. The emergency order may be issued without notice to the dam owner or with notice the division [commission] considers practicable under the circumstances. The notice does not have to comply with Chapter 2001[, Government Code].

(e) If the division [commission] issues an emergency order under authority of this section without notice to the dam owner, the division [commission] shall fix a time and place for a hearing which shall be held as soon as practicable to affirm, modify, or set aside the emergency order. The notice does not have to comply with Chapter 2001[, Government Code]. If the nature of the division's [commission's] action requires further proceedings, those proceedings shall be conducted as appropriate under Chapter 2001 [the Administrative Procedure and Texas Register Act, as amended (Article 6252-13a, Vernon's Texas Civil Statutes)].

(f) Nothing in this section or in rules or orders made by the division [commission] shall be construed to relieve an owner or operator of a dam or reservoir of the legal duties, obligations, or liabilities incident to ownership or operation.

SECTION 6. Section 11.144, Water Code, is transferred to Subchapter I, Chapter 418, Government Code, as added by this Act, redesignated as Section 418.202, Government Code, and amended to read as follows:

Sec. 418.202 [11.144]. APPROVAL FOR ALTERATIONS. All holders of permits and certified filings issued under Chapter 11, Water Code, shall obtain the approval of the division [commission] before making any alterations, enlargements, extensions, or other changes to any reservoir, dam, main canal, or diversion work on which a permit has been granted or a certified filing recorded. A detailed statement and plans for alterations or changes shall be approved by the division and filed with the Texas Commission on Environmental Quality [commission and approved by the executive director] before the alterations or changes are made. This section does not apply to the ordinary maintenance or emergency repair of the facility.

SECTION 7. Sections 16.231, 16.232, 16.233, 16.234, 16.235, 16.236, and 16.237, Water Code, are transferred to Subchapter I, Chapter 418, Government Code, as added by this Act, redesignated as Sections 418.203, 418.204, 418.205, 418.206, 418.207, 418.208, and 418.209, Government Code, respectively, and amended to read as follows:

Sec. 418.203 [16.231]. DESIGN OF IMPROVEMENTS OR SYSTEM OF IMPROVEMENTS. Insofar as possible, improvements necessary to reclaim overflowed land, swampland, and other land in this state that is not suitable for use because of temporary or permanent excessive accumulation of water on or contiguous to the land for agricultural or other use shall be designed with primary consideration to the topographic and hydrographic conditions and in such a manner that each division of a project shall be a complete, united project forming a coordinate part of an ultimately finished series of projects so constituted that the successful operation of each united project shall coordinate with the successful operation of other projects within the same hydraulic influence.

Sec. 418.204 [16.232]. LOCATION OF PROJECTS; REPORTS. The division [executive director] shall maintain files reflecting engineering reports, studies, drawings, and staff findings and recommendations pertaining to the location and effect of reclamation projects.

Sec. 418.205 [16.233]. COOPERATION WITH OTHER AGENCIES. In performing functions that are a part of duties assigned to the division [commission] or the Texas Water Development Board [board] by this subchapter, the Water Code, [code] or other law, the division [executive director, with the approval of the commission,] or the executive administrator of the Texas Water Development Board, with the approval of the board, may confer with federal and state agencies and with political subdivisions and may execute cooperative agreements with them. The division [executive director] or executive administrator may cancel any such agreement on 10 days notice to the other party.

Sec. 418.206 [16.234]. ADVICE TO DISTRICTS. The division [executive director] shall confer with districts requesting technical advice on the adequate execution of proposed levee and drainage improvements.

Sec. 418.207 [16.235]. DISTRICTS TO FILE INFORMATION WITH DIVISION [COMMISSION]. Immediately before having its bonds approved by the attorney general, each drainage district and levee improvement district shall file with the division [commission], on forms furnished by the division [commission], a complete record showing each step in the organization of the district, the amount of bonds to be issued, and a description of the area and boundaries of the district, accompanied by plans, maps, and profiles of improvements and the district engineer's estimates and reports on them.

Sec. 418.208 [16.236]. CONSTRUCTION OF LEVEE WITHOUT APPROVAL OF PLANS; LEVEE SAFETY. (a) No person may construct, attempt to construct, cause to be constructed, maintain, or cause to be maintained any levee or other such improvement on, along, or near any stream of this state that is subject to floods, freshets, or overflows so as to control, regulate, or otherwise change the floodwater of the stream without first obtaining approval of the plans by the division [commission].

(b) The division [commission] shall make and enforce rules and orders and shall perform all other acts necessary to provide for the safe construction, maintenance, repair, and removal of levees located in this state.

(c) If the owner of a levee that is required to be constructed, reconstructed, repaired, or removed to comply with the rules and orders promulgated under this section wilfully fails or refuses to comply within the 30-day period following the date of an order of the division [commission] requiring such action or compliance or if a person wilfully fails to comply with any rule or order issued by the division [commission] under this section within the 30-day period following the effective date of the order, the person is liable for a penalty of not more than $1,000 a day for each day the person continues to violate this section. The state may recover the penalty by suit brought for that purpose in a district court of Travis County.

(d) If the division [commission] determines that the existing condition of a levee is creating or will cause extensive or severe property damage or economic loss to others or is posing an immediate and serious threat to human life or health and that other procedures available to the division [commission] to remedy or prevent such property damage or economic loss will result in unreasonable delay, the division [commission] may issue an emergency order, either mandatory or prohibitory in nature, directing the owner of the levee to repair, modify, maintain, dewater, or remove the levee which the division [commission] determines is unsafe. The emergency order may be issued without notice to the levee owner or with notice the division [commission] considers practicable under the circumstances.

(e) If the division [commission] issues an emergency order under authority of this section without notice to the levee owner, the division [commission] shall fix a time and place for a hearing, to be held as soon as practicable but not later than 20 days after the emergency order is authorized, to affirm, modify, or set aside the emergency order. If the nature of the division's [commission's] action requires further proceedings, those proceedings shall be conducted, as appropriate, under Chapter 2001[, Government Code].

(f) Nothing in this section or in rules or orders adopted by the division [commission] shall be construed to relieve an owner or operator of a levee of the legal duties, obligations, or liabilities incident to ownership or operation.

(g) Any person who violates any provision of Subsection (a) [of this section] is guilty of a Class C misdemeanor and upon conviction is punishable by a fine of not more than $1,000. A separate offense is committed each day a structure constructed in violation of this section is maintained.

(h) Subsection (a) [of this section] does not apply to:

(1) any dam, reservoir, or canal system associated with a water right issued or recognized by the Texas Commission on Environmental Quality [commission];

(2) dams authorized by Section 11.142, Water Code [of this code];

(3) a levee or other improvement within the corporate limits of a city or town provided: (a) plans for the construction or maintenance or both must be approved by the city or town as a condition precedent to starting the project and (b) the city or town requires that such plans be in substantial compliance with rules and standards adopted by the division [commission];

(4) a levee or other improvement within the boundaries of any political subdivision which has qualified for the National Flood Insurance Program as authorized by the National Flood Insurance Act of 1968 (Title 42, U.S.C., Sections 4001-4127) provided: (a) plans for the construction or maintenance or both must be approved by the political subdivision which is participating in the national flood insurance program as a condition precedent to starting the project and (b) the political subdivision requires that such plans be in substantial compliance with rules and standards adopted by the division [commission];

(5) projects implementing soil and water conservation practices set forth in a conservation plan with a landowner or operator and approved by the governing board of a soil and water conservation district organized under Chapter 201, Agriculture Code [the State Soil Conservation Law, as amended (Article 165a-4, Vernon's Texas Civil Statutes)], provided that the governing board finds the practices do not significantly affect stream flooding conditions on, along, or near a state stream; or

(6) any levee or other improvement constructed outside of the 100-year floodway. For the purposes of this section, "100-year floodway" is defined as the channel of a stream and the adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the water surface elevation more than one foot above the 100-year flood elevation prior to encroachment.

(i) On projects located within the corporate limits of a city or town or within the boundaries of any political subdivision which are exempt from the provisions of Subsection (a) [of this section] by [Subdivision (3) or (4) of] Subsection (h)(3) or (4) [(h) of this section], any person whose property is located outside of the corporate limits of such city or town or of the boundaries of such a political subdivision and whose property is affected or potentially affected by the effect of the project on the floodwaters of the stream may appeal the decision of such political subdivision. The appeal shall be in writing and shall specify the grounds therefor and a copy shall be sent by certified mail to the project applicant and to the city or town or such political subdivision. The timely filing of such an appeal with the division [executive director] suspends the decision of the city or town or political subdivision until a final decision is rendered by the division [commission]. The division [executive director] shall review the complaint and investigate the facts surrounding the nature of the complaint. If the division [executive director] finds that the complaint is frivolous or nonmeritorious or made solely for purposes of harassment or delay, the division [then he] shall dismiss the appeal. Otherwise, the division [executive director shall refer the appeal to the commission which] shall, after due notice, hold a hearing to determine whether the project should be approved using the standards established by the division [commission] and shall hear such appeal de novo under the procedural rules established by the division [commission] for other reclamation projects.

Sec. 418.209 [16.237]. ADMINISTRATIVE PENALTY; CIVIL REMEDY. (a) If a person violates Section 418.202 or a division [commission] rule or order adopted under Section 418.208 [16.236 of this code], the division [commission] may assess an administrative penalty against that person in the same manner that the Texas Commission on Environmental Quality may assess an administrative penalty as provided by Section 11.0842, Water Code, except that the amount of the penalty for a violation of a division rule or order adopted under Section 418.208 may not exceed $1,000 for each day the person is in violation of the rule or order [of this code].

(b) Nothing in this subchapter [chapter] affects the right of any private corporation, individual, or political subdivision that has a justiciable interest in pursuing any available common-law remedy to enforce a right or to prevent or seek redress or compensation for the violation of a right or otherwise redress an injury.

SECTION 8. Sections 16.314, 16.315, 16.316, 16.317, and 16.318, Water Code, are amended to read as follows:

Sec. 16.314. COOPERATION OF BOARD [COMMISSION]. In recognition of the necessity for a coordinated effort at all levels of government, the board [commission] shall cooperate with the Federal Emergency Management Agency in the planning and carrying out of state participation in the National Flood Insurance Program; however, the responsibility for qualifying for the National Flood Insurance Program shall belong to any interested political subdivision, whether presently in existence or created in the future.

Sec. 16.315. POLITICAL SUBDIVISIONS; COMPLIANCE WITH FEDERAL REQUIREMENTS. All political subdivisions are hereby authorized to take all necessary and reasonable actions to comply with the requirements and criteria of the National Flood Insurance Program, including but not limited to:

(1) making appropriate land use adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses;

(2) guiding the development of proposed future construction, where practicable, away from a location which is threatened by flood hazards;

(3) assisting in minimizing damage caused by floods;

(4) authorizing and engaging in continuing studies of flood hazards in order to facilitate a constant reappraisal of the flood insurance program and its effect on land use requirements;

(5) engaging in floodplain management and adopting and enforcing permanent land use and control measures consistent with the criteria established under the National Flood Insurance Act;

(6) declaring property, when such is the case, to be in violation of local laws, regulations, or ordinances which are intended to discourage or otherwise restrict land development or occupancy in flood-prone areas and notifying the director, or whomever the director designates, of such property;

(7) consulting with, giving information to, and entering into agreements with the Federal Emergency Management Agency for the purpose of:

(A) identifying and publishing information with respect to all flood areas, including coastal areas; and

(B) establishing flood-risk zones in all such areas and making estimates with respect to the rates of probable flood-caused loss for the various flood-risk zones for each of these areas;

(8) cooperating with the director's studies and investigations with respect to the adequacy of local measures in flood-prone areas as to land management and use, flood control, flood zoning, and flood damage prevention;

(9) taking steps, using regional, watershed, and multi-objective approaches, to improve the long-range management and use of flood-prone areas;

(10) purchasing, leasing, and receiving property from the director when such property is owned by the federal government and lies within the boundaries of the political subdivision pursuant to agreements with the Federal Emergency Management Agency or other appropriate legal representative of the United States Government;

(11) requesting aid pursuant to the entire authorization from the board [commission];

(12) satisfying criteria adopted and promulgated by the board [commission] pursuant to the National Flood Insurance Program;

(13) adopting permanent land use and control measures with enforcement provisions which are consistent with the criteria for land management and use adopted by the director;

(14) adopting more comprehensive floodplain management rules that the political subdivision determines are necessary for planning and appropriate to protect public health and safety;

(15) participating in floodplain management and mitigation initiatives such as the National Flood Insurance Program's Community Rating System, Project Impact, or other initiatives developed by federal, state, or local government; and

(16) collecting reasonable fees to cover the cost of administering a local floodplain management program.

Sec. 16.316. COORDINATION OF LOCAL, STATE, AND FEDERAL PROGRAMS BY BOARD [COMMISSION]. (a) The board [commission] shall aid, advise, and coordinate the efforts of present and future political subdivisions endeavoring to qualify for participation in the National Flood Insurance Program.

(b) Pursuant to the National Flood Insurance Program and state and local efforts complementing the program, the board [commission] shall aid, advise, and cooperate with political subdivisions, the Texas Department of Insurance, and the Federal Emergency Management Agency when aid, advice, and cooperation are requested or deemed advisable by the board [commission].

(c) The aforementioned aid may include but is not necessarily limited to:

(1) coordinating local, state, and federal programs relating to floods, flood losses, and floodplain management;

(2) evaluating the present structure of all federal, state, and political subdivision flood control programs within or adjacent to the state, including an assessment of the extent to which public and private floodplain management activities have been instituted;

(3) carrying out studies with respect to the adequacy of present public and private measures, laws, regulations, and ordinances in flood-prone areas as to land management and use, flood control, flood zoning, and flood damage prevention;

(4) evaluating all available engineering, hydrologic, and geologic data relevant to flood-prone areas and flood control in those areas; and

(5) carrying out floodplain studies and mapping programs of floodplains, flood-prone areas, and flood-risk zones.

(d) On the basis of such studies and evaluations, the board [commission], to the extent of its capabilities, shall periodically identify and publish information and maps with respect to all floodplain areas, including the state's coastal area, which have flood hazards, and where possible aid the federal government in identifying and establishing flood-risk zones in all such areas.

Sec. 16.317. COOPERATION OF TEXAS DEPARTMENT OF INSURANCE. Pursuant to the National Flood Insurance Program, the Texas Department of Insurance shall aid, advise, and cooperate with political subdivisions, the board [commission], and the Federal Emergency Management Agency when such aid, advice, and cooperation are requested or deemed advisable by the Texas Department of Insurance.

Sec. 16.318. RULES. Political subdivisions which qualify for the National Flood Insurance Program, the Texas Department of Insurance, and the board [commission] may adopt and promulgate reasonable rules which are necessary for the orderly effectuation of the respective authorizations herein.

SECTION 9. The heading to Subchapter G, Chapter 16, Water Code, is repealed.

SECTION 10. (a) On January 1, 2008, the following are transferred from the Texas Commission on Environmental Quality to the division of emergency management in the office of the governor:

(1) the powers, duties, functions, programs, and activities of the Texas Commission on Environmental Quality relating to the safe construction, maintenance, and removal of dams;

(2) all obligations and contracts of the Texas Commission on Environmental Quality relating to a power, duty, function, program, or activity transferred under this subsection;

(3) all property and records in the custody of the Texas Commission on Environmental Quality relating to a power, duty, function, program, or activity transferred under this subsection and all funds appropriated by the legislature for that power, duty, function, program, or activity; and

(4) all personnel of the Texas Commission on Environmental Quality whose functions predominantly involve powers, duties, obligations, functions, and activities related to the safe construction, maintenance, and removal of dams.

(b) A rule or form adopted by the Texas Commission on Environmental Quality relating to a power, duty, function, program, or activity transferred under Subsection (a) of this section is a rule or form of the division of emergency management in the office of the governor and remains in effect until altered by the division.

(c) A reference in law to the Texas Commission on Environmental Quality relating to a power, duty, function, program, or activity transferred under Subsection (a) of this section means the division of emergency management in the office of the governor.

SECTION 11. The Texas Commission on Environmental Quality and the division of emergency management in the office of the governor shall enter into a memorandum of understanding that:

(1) identifies in detail the applicable powers and duties that are transferred to the division of emergency management in the office of the governor by this Act; and

(2) establishes a plan for the identification and transfer of the records, personnel, property, and unspent appropriations of the Texas Commission on Environmental Quality that are used for purposes of the commission's powers and duties related to the safe construction, maintenance, and removal of dams.

SECTION 12. (a) On January 1, 2008, the following are transferred from the Texas Commission on Environmental Quality to the Texas Water Development Board:

(1) the powers, duties, functions, programs, and activities of the Texas Commission on Environmental Quality relating to the administration of the National Flood Insurance Program;

(2) all obligations and contracts of the Texas Commission on Environmental Quality relating to a power, duty, function, program, or activity transferred under this subsection;

(3) all property and records in the custody of the Texas Commission on Environmental Quality relating to a power, duty, function, program, or activity transferred under this subsection and all funds appropriated by the legislature for that power, duty, function, program, or activity; and

(4) all personnel of the Texas Commission on Environmental Quality whose functions predominantly involve powers, duties, obligations, functions, and activities related to the administration of the National Flood Insurance Program.

(b) A rule or form adopted by the Texas Commission on Environmental Quality relating to a power, duty, function, program, or activity transferred under Subsection (a) of this section is a rule or form of the Texas Water Development Board and remains in effect until altered by the board.

(c) A reference in law to the Texas Commission on Environmental Quality relating to a power, duty, function, program, or activity transferred under Subsection (a) of this section means the Texas Water Development Board.

SECTION 13. The Texas Commission on Environmental Quality and the Texas Water Development Board shall enter into a memorandum of understanding that:

(1) identifies in detail the applicable powers and duties that are transferred to the Texas Water Development Board by this Act; and

(2) establishes a plan for the identification and transfer of the records, personnel, property, and unspent appropriations of the Texas Commission on Environmental Quality that are used for purposes of the commission's powers and duties related to the administration of the National Flood Insurance Program.

SECTION 14. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2007.