Legislative Update 2009

The Texas Colorado River Floodplain Coalition took no formal position regarding legislation filed during the 81st Regular Session of the Texas Legislature. However, TCRFC monitored several pieces of legislation that were enacted during the session including:

SB 637 – Bill was passed to authorize Wharton County to establish a county-wide drainage district.

SB 1299 – Bill was passed to authorize county’s of a specified population the authority to provide drainage and stormwater improvements.

HB 1831 by Corte is an omnibus bill relating to disaster preparedness and emergency management. The bill requires the Governor’s Division of Emergency Management (GDEM), in cooperation with other agencies, groups, and local governments, to develop an annex to the state emergency management plan that addresses initial response planning for providing essential population support supplies, equipment, and services during the first five days immediately following a disaster. It contains provisions regarding development of a phased re-entry plan and the creation of uniform guidelines for acceptable home repairs following a disaster. Additionally, upon declaration of a disaster, regulation of signage in the disaster area is suspended to allow licensed or admitted insurance carriers or licensed agents to erect temporary claims service signage for not more than 30 days or until the end of the declaration of disaster, whichever is earlier.

HB 3851 by Eiland authorizes the Governor, on request of a political subdivision, to waive or suspend a deadline imposed by a statute or agency order or rule on the political subdivision, including a deadline relating to a budget or property tax, if the waiver or suspension is reasonably necessary to cope with a disaster. The bill further provides that a deadline imposed by local law, including a deadline relating to a budget or property tax, is suspended for up to 30 days if the territory of the political subdivision is located in a declared disaster area and the presiding officer or governing body of the political subdivision proclaims the political subdivision is unable to comply with the requirement because of the disaster. The bill authorizes the presiding officer or governing body to issue an order ending the suspension of a deadline.

HB 4102 by Eiland allows a state or local government entity or other eligible entity that participates in disaster recovery to request and receive funding from the disaster contingency fund. The bill further provides that a state or local government entity or other eligible entity that receives funding from the disaster contingency fund to pay for costs associated with disaster recovery and that subsequently receives reimbursement from the federal government, an insurer, or another source for those same costs shall reimburse the disaster contingency fund for the reimbursed amounts. The bill also amends the Education Code to allow for adjustments of average daily attendance for school districts in a disaster area; adjustments for property values affected by a state of disaster; and reimbursement for disaster remediation costs.

SB 820 by Duncan amends the Local Government Code to require the governing body of a municipality with a population of more than 100,000 to publish notice before taking action to consider, review, and recommend the adoption of or amendment to a national model code governing the construction, renovation, use, or maintenance of buildings and building systems in the municipality. The bill further requires the governing body to encourage public comment from persons affected by the proposed action and to hold a public hearing upon request. These requirements do not apply if the governing body has established an entity for the purpose of obtaining public comment on the proposed action. The bill also requires that implementation and enforcement of an ordinance or national model code provision be delayed until at least 30 days after final adoption to permit persons affected to comply with the ordinance or provision unless a delay would cause imminent harm to the health or safety of the public.

HB 4409 by Taylor enacted several reforms to the Texas Windstorm Insurance Association (TWIA) as a result of the $2.5 billion in losses from Hurricane Dolly and Hurricane Ike in 2008. These losses were paid from $1.5 billion in reinsurance proceeds, the totality of TWIA reserves in its catastrophe reserve trust fund (CRTF), and $530 million in assessments to TWIA insurer members. Of the total assessed to insurers, $230 million will be repaid to insurers in premium tax credits over a five year period. Without legislative reform, TWIA would have began the 2009 storm season without reserves, reinsurance, or the ability to pay any additional losses except through the use of additional assessments to insurers.

Senate and House Interim Committees on Dam Safety: Responding to hearings held in 2008 by both House and Senate Interim Committees, the Texas Commission on Environmental Quality revised its dam safety rules in January of 2009. These revisions are contained in Texas Administrative Code Title 30, Part 1, Chapter 299 regulating Dams and Reservoirs. The rules included a revision to the definition of dams subject to the regulatory authority of the state which 1) have a height greater than or equal to 25 feet and a maximum storage capacity greater than or equal to 15 acre-feet; 2) have a height greater than six feet and a maximum storage capacity greater than or equal to 50 acre-feet; 3) are a high- or significant-hazard dam, regardless of height or maximum storage capacity; or 4) are used as a pumped storage or terminal storage facility.

Also revised were sections relating to the hazard classification of dams. A dam is classified as having a low-hazard potential, significant-hazard potential, or high-hazard potential if the following criteria are met: 1) Low: no loss of human life is expected (no permanent habitable structures in the breach inundation area downstream of the dam); and minimal economic loss (located primarily in rural areas where failure may damage occasional farm buildings, limited agricultural improvements, and minor highways); 2) Significant: loss of human life possible (one to six lives or one or two habitable structures in the breach inundation area downstream of the dam); or appreciable economic loss (located primarily in rural areas where failure may cause damage to isolated homes, damage to secondary highways, damage to minor railroads; or interruption of service or use of public utilities); 3) High: loss of life expected (seven or more lives or three or more habitable structures in the breach inundation area downstream of the dam); or excessive economic loss (located primarily in or near urban areas where failure would be expected to cause extensive damage to public, agricultural, industrial, or commercial facilities, public utilities, main highways, or railroads used as a major transportation system).

Prior to and during the legislative session, Senator Kip Averitt, Chair of the Senate Committee on Natural Resources, championed efforts to increase funding and staff to the Dam Safety Program at TCEQ. Following testimony from Warren Samuelson, head of the Dam Safety Team at TCEQ, Lower Colorado River Authority staff, and other engineers and dam safety experts, the state budget for the TCEQ’s Dam Safety Program was increased from $800,000 in 2008 to an additional $2.5 million for the two fiscal years beginning in 2009. Staff has increased from 7 to 29 full-time positions.

Even with the increase in staff and funding to the Dam Safety Program, relatively little state and federal money is available to assist dam owners with maintenance, repairs or dam removal. Fortunately, the largest dams in Texas are publicly owned and are regularly inspected and maintained. Unfortunately, many of the smaller dams in Texas are not regularly maintained, and dam owners are either unaware of deficiencies or lack sufficient funds to make repairs when identified. Many were originally built by the Soil Conservation Service (now the Natural Resource Conservation Service) but are now the responsibility of the local sponsor.

According to Samuelson, a total of 74 dams have failed in Texas since 1989. Five failures have occurred in the first eight months of 2009 (mostly due to piping). Of the more than 330 dams recently inspected by the Program staff or contractors, about half were noted as in fair or poor condition, although none were in imminent danger of failure. The TCEQ does not have any authority to levy fines for noncompliance with the Program and can only force remedial action if the owner is taken to court.

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