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House Natural Resources met on August 23 to take up the following interim charges:

  • Monitor the implementation of SB 1160, relating to the creation of the Gulf Coast Protection District, and explore ways in which the state can further support the construction of a coastal barrier system;
  • Review the adequacy and efficiency of current mechanisms used to compensate water right holders when the Texas Commission on Environmental Quality temporarily transfers a water right under an emergency authorization. Make appropriate recommendations for the protection of private property rights of water right holders; and
  • Monitor newly adopted and proposed federal regulations that could impact activities that fall within the jurisdiction of the committee, including regulations under consideration by the Environmental Protection Agency relating to the definition of waters of the United States.

This report is intended to give you an overview and highlight of the discussions on the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

Opening Comment

  • Chair T.O. King – Will be meeting tomorrow as well; expect two long days of testimony
  • Chair T.O. King – Welcomes new member to the committee Rep. Erin Gamez

 

Monitor the implementation of SB 1160, relating to the creation of the Gulf Coast Protection District, and explore ways in which the state can further support the construction of a coastal barrier system.

Michel Bechel, Gulf Coast Protection District

  • Responsible for working with the Army Corps to plan each costal barrier project; will require 9 federal share for these projects
  • Projects are necessary for the safety of residents in these areas and the safety of the state and national economies
  • Have local cooperation agreements with the GLO and have local agreements
  • Protection district has held public open houses and prioritized with meeting with stakeholders
  • Anticipating 2022 Water Development Act to authorize the costal Texas program
  • Have fully funded the Jefferson County Sabine to Galveston program
  • Legislature has allocated $400m to these projects since 2019
  • Project evaluated at $31b; have $19b from the federal government, $2b of which will go to economic development to the GLO
  • Leaves $10.7b in local match obligation; are many methods of financing to make up this gap
  • Ready to advance Army Corps to start on these projects
  • Paul – Percent of the state’s GDP behind these barriers?
    • 26%
  • Paul – What do you need from the legislature in the upcoming session?
    • Continual funding for commitment to the federal government concerning local match; specifically, the project in Jefferson County

 

Col. Rhett Blackman, U.S. Army Corps of Engineers Galveston District

  • 3 counties (Jefferson, Orange and Brazoria) project was authorized and fully funded
  • Will be awarding three other projects in the upcoming months
  • Have proposals for existing systems; such as the lift gate near mouth of Barge canal in Freeport
  • Costal bend projects are the result of the largest recommendation in the agency’s history
  • Paul – Congress has authorized going ahead with the project, but have not funded?
    • Correct; authorization is in the water bill and the appropriation will be separate
  • Wilson – Asks about the nonfederal match? Texas appropriations does not have to align with federal dollars
    • Is separate; special provision where nonfederal sponsor can pay as you go or finance over 30 years
    • Correct; are managing accounting to ensure federal and nonfederal are aligned
  • Chair T.O. King – Subject to reconciliation? Is a concern that will not end up in the bill
    • Correct; do not think it is a concern

 

Mark Havens, Texas General Land Office

  • This project is 15 years in the making; are moving into construction
  • Will continue be the go-between with the Corps, the GCPD, and other partners
  • Chair T. O. King – Seen any hiccups along the way?
    • Not so far, projects are getting funded and underway
    • Next year will see more expenditures in Orange where most of the construction will be

 

Don Carona, Orange County Drainage District

  • Orange County is the state’s epicenter for hurricanes and other weather events; area has been “decimated”
  • Grateful to the legislature for approval of the storm levy system
  • All entities here today are unified and is the only way these kinds of projects can occur
    • Thanks the legislature for the creation of the GCPD
  • Have a way to go with the planning and design of the Orange County project
  • Project is for the future and to support the petrochemical industry

 

Phil Kelley, Jefferson County Drainage District 7

  • Provides a historical background of hurricane flood prevention projects
  • Port Author project is currently evaluated at $863m
  • Completed the design of 5 different projects and expect funding in the next 12 months
  • Pleased with the actions the GCPD has done over the last year
  • Funding allocated from the 86 and 87 legislatures; will need additional funding to cover project share costs for the 2024-2025 FY
  • Harris – What cost is for the 2024-2025?
    • $150m
  • Paul – Funding as you go?
    • Corps of engineers were given funding to build the project, and local share begins to incur interest now, but will pay over 30 years

 

Danielle Goshen, National Wildlife Federation

  • Cost of the costal barrier projects evaluated $31b; GPCD will be on the hook for $26b
  • Harris County alone will be responsible for $8b for this project
  • Are concerns about the feasibility and the cost of this project
  • Concerns about the limited scope of the project; Army Corps limited project scope to reducing storm surge, not high winds or flood
  • Corps is not using plans that use intermediate to intermediate high risk projections
  • Do not have a study of the project’s sufficient impacts to the environment
  • Commends the GCPD in recently making their meetings more accessible to the public; could do more like providing time for public comments and holding Q&A sessions
  • Encouraged by the GCPD reaching out to non-profit stakeholders
  • Army Corps’ project is not the “silver bullet” it is being made out to be
  • Feel the state should focus more on more tailored non-structural solutions
  • Need to give counties and communities the ability to enforce costal building codes
  • Need to enforce existing standards for the refineries along the coast
  • Need to invest in nature-based solutions

 

Sally Bakko, City of Galveston and Gulf Coast Protection District

  • Need to invest in sustainable protection
  • Grateful for the support and investment from the legislature; grateful for future support

 

Larry Linenschmidt, Self

  • Member of the Hill Country Institute; need to consider global warming leading to climate change
  • Need to consider questions before leading on construction of the barrier; do not have a clear idea of the environmental impact
  • State already has large economic burdens such as underfunded pensions accounts
  • Barrier will not address wind damage and has the possibility to make flooding conditions worse during Hurricane Harvey
  • Need to incorporate Texas 2036 report and other relevant climate change data; need to inspect all refineries along the ship channel to verify their level
  • Should be prepared for 1,000-year flood events; build third reservoir in the Katy area
  • Need to clean up the polluted areas and continue to fund flood mitigation efforts
  • Need to remove all the homes that were affected by Hurricane Harvey
  • Chair T. O. King and Linenschmidt discuss the funding changes in the project; King notes they need to be clear on the recent increase in the cost projection
  • Chair T. O. King – Asks about 1,000-year flood events?
    • Things are changing have had multiple 500-year floods already and trends are changing
  • Harris – Cost of removing the houses effected by Hurricane Harvey; would be a large cost
    • Need to do something about it; need long term solutions for that issue
  • Paul – Are talking about a costal barrier, say we should not be involved in surge protection?
    • Are other alternatives, need to prepare for more than what the plan currently does
    • Paul – The barrier would help surge which is the most damaging part of the storm; people in those areas need protection

 

Review the adequacy and efficiency of current mechanisms used to compensate water right holders when the Texas Commission on Environmental Quality temporarily transfers a water right under an emergency authorization. Make appropriate recommendations for the protection of private property rights of water right holders.

Kim Nygren, TCEQ

  • TCEQ has responded to 36 senior rights priority calls 2009-today; have not had to suspend junior water rights for any of these cases, but is a possible event
  • Have not done an emergency transfer of water, but have evaluated the challenges with that determination
  • Harris – Priority calls within the last year?
    • Two along the Colorado River

 

Sarah Kirkle, Texas Water Conservation Association

  • Members of TWCA are mainly water and wastewater providers
  • Concerning water rights, it is “first in time are first in right”
  • Currently working on prioritizing which basins need updates; some water availability models have not been updated
  • Water providers buy retail or wholesale through private contracts
  • Reiterates the TCEQ has never had to suspended water rights
  • Prior appropriations document is the foundation of water rights
  • Water rights are vested and takings require compensation
  • Wilson – Water availability models have not been updated?
    • Regions have flexibility to plan to existing drought of record or worse than drought of record
    • At least one basin will have a new drought of record this year

 

Walt Sears, Northeast Texas Municipal Water District

  • With water availability planning TWDB determines if models are outdated
  • Funding to pay for those models sometimes falls on the state to update these and sometimes it falls on entities; recently Colorado LCRA was responsible for funding updating models
  • Overviews the prior appropriations document
  • TWDB enables regional planning and ensures all communities are involved

 

Brian Sledge, Sledge Law Group

  • Provides the history of water rights prioritization
  • Committee should focus on the improvement of the mechanism
  • Harris – How is market value determined to compensate taking water rights?
    • There is not an official way to determine; TCEQ has not had any of these calls

 

Monitor newly adopted and proposed federal regulations that could impact activities that fall within the jurisdiction of the committee, including regulations under consideration by the Environmental Protection Agency relating to the definition of waters of the United States.

Jill Csekitz, TCEQ

  • Each of the past three administrations have published their own definition
  • Recent proposal was submitted in December 2021; expect finalization and rulemaking in 2023
  • Harris – Landowners are treated in a punitive manner under the current interpretation of WOTUS
    • Aware, have provided feedback for more public participation opportunities
  • Harris – For someone who wants to impound water; what is the permitting requirements?
    • Is a separate question, is a whole host of permitting that would have to go on
  • Harris – Under current interpretation, if a landowner divert more than half an acre of water, are subject to federal government permitting and fines; is absurd
  • Chair T. O. King – State standard for impounding is up to 200 ft, federal is dramatically lower than that and is unreasonable
    • State has not changed their process, but the federal side has changed dramatically; TCEQ has tried to act as a buffer
  • Chair T. O. King – Have had people come to you about this problem?
    • Not directly, but imagine those conversations happen

 

James Bradberry, Self

  • This is a profound policy issue for the state of Texas; is a very esoteric law and widespread
  • Has been large changes between the last three administrations
  • Main concerns are the combination of penalties and the uncertainty
  • Focus in D.C. is about clean water, but this is more of a private property and land-use issue
  • Is a role for this committee and the legislature how the state can exercise its jurisdiction
  • Since the current rule has not been finalized, landowners are following pre-Obama rules
  • The Trump proposal created clear categories of inclusion; Biden administration took out this rule and proposed their own which is not final yet
  • Biden administration’s rule is as expansive of the Obama rule, but carries more uncertainty
  • Were two tests to determine jurisdiction created by Justices Scalia and Kennedy; proposed rule uses both tests which is a large burden on property owners
  • Justice Alito notes this is an area where the Supreme Court would like to take up; will not answer the question if the federal government should be extending into this business
  • Wilson – What may the legislature do to create a more predictable framework?
    • Need to look at the intersection between land and water; landowners need support and certainty from the state
  • Wilson – That would look like a resolution or a report from this committee?
    • Correct
  • Harris – Statutes of limitation from federal agency on the landowner?
    • Believe so, way the statute is set up is continuing violations
  • Harris – Aware of any other punitive measures other than fines the Corps is imposing on landowners?
    • May require landowners to invest money and time to get a permit
  • Harris – What would be the cost of a landowner taking this to the supreme court?
    • Over $1m
  • Harris – Attorney General has sued on this?
    • State filed suit under the Obama rule; current proposal is not finalized
  • Paul – Also includes wetlands or lands that become wetlands after rain?
    • Yes; is very hard to determine
    • Paul – Large issue in Houston because anything can be determined a wetland nowadays and you cannot develop land
  • Paul and Bradberry discuss the Sackett v. EPA case
  • Chair T. O. King – What argument does the federal government or Corps have for jurisdiction?
    • Primarily the Commerce Clause and the Clean Water Act
  • Chair T. O. King – What would the state’s argument they can say its private property?
    • Flows from state sovereignty; was left undefined and is an opening and advantage
  • Chair T. O. King – Not optimistic the federal government will do anything about this
    • Encouraged by the interest some of the Supreme Court justices have taken
  • Chair T. O. King – Permitting process look like?
    • About a two year and expensive process; provides an anecdote about a case in Wyoming where the landowner sued after EPA and Corps said they needed a permit
  • Bowers – What would the cost of a permit be? Not a way to find out before the sale of land goes through?
    • Minimum $75k to $150k and above; good point, not required to disclose that information

 

Rob Hughes, Texas Forestry Association

  • Forest roads are under scrutiny of the impounding of water; are continuously subject to lawsuits and WOTUS rulings
  • EPAs overinclusion of tributaries has been consistently subject to supreme court rulings
  • Harris – Logging roads on a property, how does the Corps get involved in those?
    • Were a part of the 404 exemption, but if the rule changes can come back and tell landowners they need a permit for it
  • Harris – Could also require archaeological studies on the road that was cut to be extra punitive?
    • Correct; ask the state steps up

 

Michael Lewis, Environment Texas

  • “Other waters of the United States” is clearly defined by the Corps of Engineers
  • Wetland delineation is a science and has very specific set of rules
  • 404 exemptions for agriculture is kept in the proposed rule
  • TCEQ 2022 study showed 1,051 impaired water body segments
  • 90% of state is under extreme drought conditions and need to protect our water resources; TCEQ’s protection of our water is spotty at best
  • Cannot afford to lose existing water resources
  • Strongly recommend adhere to proposed regulations; need to increase enforcement of those who consistently pollute our drinking water
  • Harris – Problem is the EPA and Corps are not applying those definitions you mentioned above on landowners; majority of frustration is the issue is the moving goalpost
    • Understand that is a frustration; agree there need to be clear guidelines, believes the proposal is a step in that direction

 

Steven Meritt, Citizens’ Climate Lobby

  • Becoming increasingly alarmed at the impacts of climate change on our water
  • Need to consider the most recent and available data on climate change in the committee’s report to the legislature; notes Texas 2036’s report is a good source of data

 

Closing Comments

  • Chair T. O. King – Expect a longer day tomorrow