HBA-ALS H.B. 2977 76(R) HBA-ALS H.B. 2977 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2977 By: Hamric Land & Resource Management 4/12/1999 Introduced 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. 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 discouraging development in flood-prone areas. 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 Clean Water Act (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 33 U.S.C. Section 1344 (federal Clean Water 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 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. (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 flood-plain 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, and requires TNRCC to assist districts and counties to, identify possible means of funding for the purchase of land and specified possible means. 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. Provides that the district must complete and adopt regional flood control plans no later than September 1, 2001. (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 90th 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 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 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 33 U.S.C. Section 1341 (federal Clean Water 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 clear evidence of likely violations of state numerical water quality criteria or interference with the state water quality plans exists. (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 mitigation of damages or payment to substitute for compensatory 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 33 U.S.C. Section 1344 (federal Clean Water Act), as amended, regarding the appropriate scope and extent of compensatory mitigation for a project, unless clear evidence of likely violation of state numerical water quality criteria or interference with state water quality plans exists. (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-prone 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 assist districts that adopt regional flood control plans 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.