HBA-ALS C.S.H.B. 2977 76(R)HBA-ALS H.B. 2977 76(R)    
BILL ANALYSIS

Office of House Bill AnalysisC.S.H.B. 2977
By: Hamric
Land & Resource Management
4/26/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, when developing certain projects in Harris County, there are
local food control guidelines as well as federal and state water quality
requirements.  There is a concern that this process may ignore the regional
approach that must be taken to effectively address food and water quality
issues. Some individuals believe that flood mitigation or water quality
projects must be examined based on an entire area's characteristics, rather
than on a project by project basis.   

Due to Harris County's reoccurring flood problems, the Harris County Flood
Control District (HCFD) was created.  Since its creation, HCFD has worked
with state and federal regulatory agencies on flood control projects and
has developed advanced technical expertise.  Some individuals believe that
because of its expertise, HCFD is in a position to develop a regional flood
control plan for Harris County which would incorporate a regional approach
to that area's flooding problems.  

C.S.H.B. 2977 requires the Texas Natural Resource Conservation Commission
(TNRCC) to develop a memorandum of understanding with the United States
Army Corps of Engineers to foster permits under the federal Clean Water Act
in certain counties in which regional flood control plans have been
developed, which would include Harris County. This bill allows a
conservation and reclamation district and a county to develop and adopt a
regional flood control plan.  This bill also sets forth rules regarding the
adoption, approval, and the funding of such plans.  This bill also allows a
district to purchase or receive property in a county for which a regional
food control plan has been prepared. This bill authorizes the TNRCC to
exercise certain powers reserved to the state under the Federal Water
Pollution Control Act regarding the certification that the discharge of a
pollutant will not violate water quality standards under the Act. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Natural Resource Conservation
Commission (TNRCC) in SECTION 3 (Section 26.0231) of this bill. 

SECTION BY SECTION ANALYSIS
 
SECTION 1. Amends Section 5.104, Water Code, by adding Subsection (c), as
follows: 

(c)  Requires the Texas Natural Resource Conservation Commission (TNRCC) to
use its best efforts to develop a memorandum of understanding with the
United States Army Corps of Engineers to foster regional programmatic
permits under Section 404, 33 U.S.C.  Section 1344 (Federal Water Pollution
Control Act), as amended, in counties in which regional flood control plans
have been developed.  

SECTION 2.  Amends Chapter 16, Water Code, by adding Subchapter K, as
follows: 

SUBCHAPTER K.  REGIONAL FLOOD CONTROL PLANS

Sec. 16.381.  APPLICABILITY.  Provides that this subchapter applies to a
county with a population of 2.8 million or more and a district created
under Section 59, Article XVI, Texas  Constitution (Conservation and
Development of Natural Resources; Conservation and Reclamation Districts),
that has boundaries coextensive with a county described by Subdivision (1)
and is authorized to provide stormwater drainage and flood control
facilities.  

Sec. 16.382.  REGIONAL FLOOD CONTROL PLANNING.  (a)  Authorizes a district
and county to cooperate to develop and adopt a regional flood control plan
in the manner provided by Sections 16.315 (Political Subdivisions;
Compliance With Federal Requirements) and 16.316 (Coordination of Local,
State, and Federal Programs by Commission) 

(b)  Provides that the regional flood control plan must include all land
located within the boundaries of a district that cooperates in preparing a
regional plan and be consistent with a master drainage plan adopted by the
district.  

Sec. 16.383.  AUTHORITY TO ACQUIRE LAND.  Authorizes a district that
prepares a regional flood control plan to purchase or receive property from
a landowner property in the county.  Provides that for land purchased or
received by a district or county, the regional flood control plan must
provide passive flood control and authorizes the plan to identify
beneficial uses, including habitat restoration, natural floodplain storage,
parks, green space, intermodal transportation corridors, and potential
contracts with nonprofit corporations for conservation uses.  

Sec. 16.384.  RULES.  Provides that the regional flood control plan must
include rules requiring   development in the county to conform with land
use and control measures adopted by the district or county under Section
16.315 (Political Subdivisions; Compliance With Federal Requirements).  

Sec. 16.385.  FUNDING.  Authorizes the regional flood control plan to
identify possible means of funding for the purchase of land and specifies
possible means. Authorizes a district that adopts a regional flood control
plan to request advice from the Texas Water Development Board to identify
means to finance the purchase of land. 
   
Sec. 16.386.  ADOPTION OF PLAN.  (a) Provides that a district that approves
the development of a regional flood control plan must notify TNRCC that a
plan will be developed and identify the boundaries of the region included
in the plan.    

(b)  Provides that a district must send the plan to the commissioners court
of the county for review and approval before final adoption of a plan. 
 
(c)  Requires the commissioners court, no later than the 120th day after a
commissioners court receives a plan, to adopt a resolution of approval and
present the resolution to the district that submitted the plan or provide
comments to the district indicating the changes in the plan that are
required for the commissioners court to approve the plan.  

(d) Requires the commissioners court to conduct at least one public meeting
to receive comments before it acts on a plan under Subsection (c).  Sets
forth specified notice requirements regarding the meeting.  Authorizes a
person to present information and data relevant to the proposed regional
control plan at the meeting. 

(e) Requires the district, no later than the 90th day after the date the
district receives comments from the commissioners court, to revise a plan
and submit the revised plan to commissioners court for review and approval.

Sec. 16.387.  FEES. Authorizes a district to facilitate the development of
alternative wetland mitigation programs for permit applications in the
district under the Federal Water Pollution Control Act, including the
imposition of fees instead of wetland mitigation activities. Authorizes a
district to impose fees set by the commissioners court to be paid to the
district to substitute for compensatory mitigation by proponents of
projects in an area identified in a plan as not flood-prone and suitable
for development.  Requires the district to use money  from the fees to
acquire land in the areas identified as flood-prone and not suitable for
development.  

SECTION 3. Amends  Subchapter B, Chapter 26, Water Code, by adding Section
26.0231, as follows: 

Sec. 26.0231.  CERTIFICATION OF FEDERALLY AUTHORIZED DISCHARGES.  (a)
Authorizes TNRCC to exercise the powers reserved to the state under the
Federal Water Pollution Control Act, as amended, to certify that the
discharge of a pollutant will not cause a violation of applicable water
quality standards or waive certification.  

(b)  Requires TNRCC to waive its review until September 1, 2001, for a
project undertaken in a district that has notified TNRCC under Subchapter
K, Chapter 16, Water Code, that development of a regional flood control
plan has begun, unless an environmental impact statement is required under
the National Environmental Policy Act 
or a review is necessary to maintain delegation of a federally delegated
program or approval of a federally approved program. 

(c) Requires TNRCC to waive its review for projects intended primarily to
prevent or minimize flooding or improve drainage.  

(d)  Requires that the policy of TNRCC in exercising its authority under
this section be to promote compensatory wetland mitigation or payment of
fees to substitute for wetland mitigation. Requires TNRCC, during the
waiver period required by Subsection (b), to recognize and accept decisions
made by the United States Army Corps of Engineers under Federal Water
Pollution Control Act, as amended, regarding the appropriate scope and
extent of compensatory mitigation for a project, except where necessary to
maintain delegation of a federally delegated program or approval of a
federally approved program. 

(e)  Requires TNRCC, by rule, to develop an expedited certification review
process under Subsection (a) for projects to be located in an area
identified in a regional flood control plan as located outside flood hazard
areas and appropriate for development or infrastructure projects to be
located in areas identified in a regional flood control plan as flood-prone
areas and not appropriate for development.  

(f) Requires TNRCC to develop a specified review process if a review
process is required to maintain delegation. 

(g) Authorizes a district that adopts regional flood control plans to
request assistance from the Texas Water Development Board to create a
system for payment to a district that adopts a regional flood plan by
proponents of projects in areas identified in the regional flood control
plan as located outside the flood-prone areas and suitable for development
of fees in lieu of compensatory mitigation.  Requires the fees to be used
by the plan participants for acquisition of land in the areas identified as
flood-prone and not suitable for development.  

SECTION 4.Emergency clause.
 Effective date: upon passage. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute modifies the original in the caption to specify that this
Act concerns the Federal Water Pollution Control Act, rather than the Clean
Water Act. 

The substitute modifies the original in SECTION 1 (Section 5.104, Water
Code) in proposed Subsection (c) by requiring the Texas Natural Resource
Conservation Commission (TNRCC) to use its best efforts to develop a
memorandum of understanding with the United States Army Corps of Engineers
to foster regional programmatic permits under Section 404, 33 U.S.C.
Section 1344 (Federal Water Pollution Control Act), rather than Section
404, 33 U.S.C.  Section 1344 (Federal  Clean Water Act), as amended, in
counties in which regional flood control plans have been developed. 

The substitute modifies the original in SECTION 2 (proposed Section 16.382,
Water Code) in proposed Subsection (a) by authorizing a district and county
to cooperate to develop and adopt a regional flood control plan in the
manner provided by Sections 16.315 (Political Subdivisions; Compliance With
Federal Requirements) and 16.316 (Coordination of Local, State, and Federal
Programs by Commission), rather than adopt a plan that discourages
development and nonconforming use in flood-prone areas and identifies areas
within the county that are flood-prone and areas that are not flood-prone
based on specific characteristics of that county. 

The substitute modifies the original in SECTION 2 (proposed Section 16.385,
Water Code) by authorizing the regional flood control plan to identify
possible means of funding for the purchase of land including using fees as
provided under Chapter 395, Local Government Code (Financing Capital
Improvements Required by New Development in Municipalities, Counties, and
Certain Other Local Governments); money distributed from the county flood
control fund by the commissioners court of the county under Section
256.006, Transportation Code (Use of Flood Control Fund); grants from
certain entities; tax and revenue of specified districts; and any other
funding authorized by state or federal law. Adds new Subsection (b) to
authorize a district that adopts a regional flood control plan to request
advice from the Texas Water Development Board to identify means to finance
the purchase of land.  The substitute deletes language from the original
which required the Texas Natural Resource Conservation Commission to assist
districts and counties identify possible means of funding for the purchase
of land. 

The substitute modifies the original in SECTION 2 (proposed Section.
16.386, Water Code) by removing from proposed Subsection (a) the
requirement that a district must complete and adopt regional flood control
plans no later than September 1, 2001.  

The substitute modifies the original in SECTION 2 (proposed Section 16.386,
Water Code) by requiring the commissioners court, no later than the 120th
day, rather than the 90day,  after a commissioners court receives a plan,
to adopt a resolution of approval and present the resolution to the
district that submitted the plan or provide comments to the district
indicating the changes in the plan that are required for the commissioners
court to approve the plan.  

The substitute modifies the original in SECTION 2 (proposed Section 16.386,
Water Code) by redesignating Subsection (d) of the original to Subsection
(e) of the substitute.  Adds a new Subsection (d) requiring the
commissioners court to conduct at least one public meeting to receive
comments before it acts on a plan under Subsection (c), specifying the
notice requirements regarding the meeting, and authorizing a person to
present information and data relevant to the proposed regional control plan
at the meeting. 

The substitute modifies the original in SECTION 2 (proposed Section 16.387,
Water Code) to authorize a district to facilitate the development of
alternative wetland mitigation programs for permit applications in the
district under the Federal Water Pollution Control Act, including the
imposition of fees instead of wetland mitigation activities, rather than
impose fees set by the commissioners court to be paid to the district to
substitute for compensatory mitigation by proponents of projects in an area
identified in a plan as not flood-prone and suitable for development.  
The substitute modifies the original in SECTION 3 (proposed Section
26.0231, Water Code) to add an additional exception to the requirement that
TNRCC waive its review until September 1, 2001, for a project undertaken in
a district that has notified TNRCC under Subchapter K, Chapter 16, Water
Code, that development of a regional flood control plan has begun.  The
added exception applies when a review is necessary to maintain delegation
of a federally delegated program or approval of a federally approved
program, rather than unless clear evidence of likely violations of state
numerical water quality criteria or interference with the state water
quality plans exists. Adds a new Subsection (f) requiring TNRCC to develop
a specified review process if a review process is required to maintain
delegation. Redesignates proposed Subsection (f) of the original to
Subsection (g) of the substitute and modifies proposed language by
authorizing a district that adopts regional flood control plans to request
assistance from the Texas Water Development Board to create a  system for
payment to a district that adopts a regional flood plan by proponents of
projects in areas identified in the regional flood control plan as located
outside the flood-prone areas and suitable for development of fees in lieu
of compensatory mitigation, rather than requiring TNRCC to assist a
district to accomplish the creation of such a system.   Makes conforming
changes.