TWCA Annual Convention 2019

1. TWCA
86th Regular Session
Flood and Eminent Domain Bills
Howard S. Slobodin
March 8, 2019

2. Flood Bills
Flood-related bill subjects:
• Statewide Planning and Finance
• Notification and Disclosure
• Local Bills
• Disaster Preparedness

3. Flood Bills
Statewide Planning
and Finance

4. Planning and Finance
SB 8 (Perry):
• All other senators co-authored.
• Merges and modifies SB 396 and 397
(planning and funding).
• Creates process on five-year cycle.
• Requires ranked list of projects.
• Retains SB 396 requirement that regional
process will take place at river basin level.
• Modifies SB 396 membership of regional
groups to include more than counties. Initial
members appointed by TWDB.

5. Planning and Finance
SB 8 (Perry):
• Regional plans to examine updated mapping,
existing and planned infrastructure, land use
changes and population growth and flood
prone areas in region.
• Board review includes consideration of
whether RP “adequately provides for the
preservation of life and property,” and whether
plan negatively affects a neighboring area.

6. Planning and Finance
SB 8 (Perry):
• Carries over SB 397 SSWCB provisions.
• SSWCB to prepare 10-year repair and
maintenance plan.
• Includes limitation to dams under SSWCB
jurisdiction absent in SB 397.

7. Planning and Finance
SB 7 (Creighton):
• 13 co-authors, including Perry.
• Carries over some provisions of SB 695.
• Creates “Infrastructure Resiliency Fund.”
• Creates floodplain management account in
fund for planning and education.
• Creates Hurricane Harvey account in fund.
• Creates flood plan implementation account.
• Creates federal matching account in fund.

8. Planning and Finance
SB 7 (Creighton):
• Hurricane Harvey account to provide grants,
low- and zero-interest loans. No grant limit.
• Covers planning, design, permitting, and
construction.
• Planning, design and permitting appear to be
loan only, with 10-year repayment deferral
during design and construction.
• TDEM-endorsed and disaster county projects
get highest priority.

9. Planning and Finance
SB 7 (Creighton):
• Flood plan implementation account has
similar financing provisions.
• Additional considerations apply to prioritizing
applications (federal funding and water
supply).
• 75% limit on total project cost for grant funds.
• Provides funds pending adoption of first state
flood plan.

10. Planning and Finance
SB 7 (Creighton):
• Creates separate federal matching account in
in resiliency fund.
• Creates Texas Infrastructure Resiliency Fund
Advisory Committee, same membership as
SWIFT advisory committee.
• Bill incorporates quarterly reporting
requirement for federal funds under SB 563.

11. Planning and Finance
HB 13/HJR 81 (Phelan):
• Expands scope of TWDB flood control
planning grant program (TWC § 15.405).
• Adds permitting and design costs.
• Preference to economically disadvantaged
areas.
• Creates Flood Infrastructure Fund at TWDB.
• Market or below interest loans for projects.
• Grant, low- or zero-interest loans for projects
outside of MSAs or in economically distressed
areas.

12. Planning and Finance
HB 13/HJR 81 (Phelan):
• Grants for matching funds for federally-
supported projects.
• Loans for design and permitting get up to 10-
year repayment deferral.
• Requires coordination with all substantially
affected political subdivisions.
• No priority for projects with federal
commitments.
• Creates TWC Ch. 150 defining “river
authority.”

13. Planning and Finance
HB 13/HJR 81 (Phelan):
• Includes “placeholder” 5-year state flood plan
provision (with regional plans) and 10-year
TWDB (not SSWCB) dam repair and
maintenance plan provision for flood control
dams.
• Includes $3.26B from ESF.

14. Planning and Finance
HB 1800 (Bonnen, Greg):
• Creates resilience infrastructure fund at
TWDB.
• Resilience projects to deliver flood mitigation
or to prevent destruction of fish or wildlife
habitat.
• Includes costal public land.
• Loans or grants ≤ 75% project cost, but may
grant up to 100% of local match.

15. Planning and Finance
HB 1800 (Bonnen, Greg):
• Authorizes PPP for construction and O&M.
• Authorizes TWDB issuance of revenue bonds
subject to $2B cap.
• Provides for TWDB prioritization, with
preference for federal money, projects studied
by USACE, projects consistent with state and
local hazard mitigation plans, serving MSAs ≥
250,000.

16. Flood Bills
Notification and
Disclosure

17. Notification and Disclosure
HB 26 (Metcalf):
• Creates Dam Release Alert System.
• TCEQ to implement on behalf of operators.
• Operators to request activation at least two
hours before a release that they “reasonably
believe” will result in flooding.
• Notification to include time of release,
expected duration, and expected level of
flooding that will result.

18. Notification and Disclosure
HB 34 (Raymond):
• Creates TDEM-supervised statewide disaster
alert system.
• TV, radio, reverse 9-1-1, text messages, e-
mails, social media, and other instant
messaging systems.
• Real-time information regarding the
availability of gas, food, lodging, 24-hour
pharmacy services and medical care.
• For hurricanes, the category, changes in the
category and expected time and location of
landfall.

19. Notification and Disclosure
SB 339 (Huffman):
• SB 339 (Huffman): modifies statutory seller’s
disclosure of residential real property
conditions form. Adds disclosure for
properties located in 500-year floodplain,
within a USACE reservoir or within a USACE
flood pool, or within five miles downstream.
• SB 640 (Huffman)/HB 970 (Walle): requires
lessors (commercial and residential) to
provide written notice of flood hazards.

20. Notification and Disclosure
HB 993 (Coleman):
• HB 993 (Coleman): requires residential
lessors to provide written notice of flood
hazards. Floodplain or properties damaged
by flooding or storm surge during 20 years
preceding date of the lease. Actual damages
and fees.

21. Flood Bills
Local Bills

22. Local Bills
SB 179 (Miles)/HB 801 (Walle)
• Creates task force to conduct comprehensive
flood control infrastructure study for Harris Co.
• Assess existing infrastructure and identify
improvements.
• Three legislative appointments, four
academic, Houston, Harris Co., and two by
author.
• Consultation with HCFCD, with final report by
December 1, 2020.

23. Local Bills
HB 911 (Huberty)
• Adds TWC Ch. 9 to create Lake Houston
Watershed Commission.
• To provide public with streamlined
cooperation in flood control planning.
• Comprised of county commissioners (Harris,
Liberty, Montgomery), Houston, Humble, and
Lake Houston MUDs.
• SJRA and CWA each get one non-voting
member.

24. Flood Bills
Disaster
Preparedness

25. Disaster Preparedness
SB 6 (Kolkhorst)
• Expands training for emergency management
officers of political subdivisions. Requires
TDEM to develop model guide for local
officials regarding disaster and recovery,
including debris removal and federal funding
availability.
• See also HBs 5, 6 and 7.

26. Eminent Domain Bills
ED-related bill subjects:
• Procedural Reform
• Actual Progress
• Other Topics

27. Eminent Domain
Procedural Reform

28. Procedural Reform
SB 421 (Kolkhorst)/HB 991 (Burns)
• Applies to private entities and TWC Ch. 67
non-profit water supply or sewer service
corporations.
• Includes list of required terms in easement
document (number of pipelines, max.
diameter, depth, double ditch, damage
recovery for construction, maintenance, repair
or replacement, and covenant to maintain
easement area).
• AG to prepare form.

29. Procedural Reform
SB 421 (Kolkhorst)/HB 991 (Burns)
• For single-county projects with four or more
parcels, creates new court-facilitated public
meeting between condemnor and
condemnees.
• Condemnor must disclose justification for
proposed public use, source of ED authority
and technical details of project.
• Court must certify completion of public
meeting prior to acquisitions.

30. Procedural Reform
SB 421 (Kolkhorst)/HB 991 (Burns)
• Creates new preliminary right of action for
condemnees to challenge private-entities ED
authority.
• Amends TPC Ch. 21 to expand list of issues
considered in valuation by special
commissioners.
• Size or visibility of infrastructure and pressure.

31. Procedural Reform
SB 421 (Kolkhorst)/HB 991 (Burns)
• Authorizes penalty recovery by condemnees
where award is more than 25% greater than
initial offer. 25%-35% of award.
• Penalty recovered regardless of amount of
final judgment, if appealed.

32. Eminent Domain
Actual Progress

33. Actual Progress
SB 554 (Schwertner)/HB 1253 (Leman)
• Modifies list of criteria for “actual progress” for
triggering right of repurchase.
• Must meet three rather than two criteria.
• Retains performance of labor or delivery of
materials to improve property, performance of
significant professional services, application
for state or federal funds or permits.
• Eliminates criteria for purchase of adjacent
tracts or parcels for same project.

34. Eminent Domain
Other Topics

35. Other Topics
SB 552 (Schwertner)/HB 1245 (Ashby)
• Permission to survey letters, where used,
must include notice that landowners may
refuse or negotiate terms, and condemnor’s
right to seek a court order to perform survey.

36. Other Topics
SB 555 (Schwertner)/HB 1247 (Ashby)
• Provides rollback tax liabilities resulting from
condemnation are “the personal obligation of
the condemning entity.”

37. Other Topics
HB 2470 (Thompson)
• Creates right of action for landowners to
recover for damages associated with post-
construction use of easements.
• Applies to landowners who own property
located “near an easement.”
• Applies where use of easement “causes
damage to the value of the real property.”
• Uses special commissioners’ hearing and
award as initial procedural step.

38. TWCA
86th Regular Session
Flood and Eminent Domain Bills
Howard S. Slobodin
March 8, 2019