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The Senate Committee on Agriculture, Water & Rural Affairs met on June 5 to hear invited and public testimony regarding interim charges related to streamlining water permitting and monitoring legislation passed during the 85th Session.

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. This report is not a verbatim transcript of the hearing; it 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.

 

Streamlining Water Permitting: Study and recommend changes that promote streamlining of water right permit issuance and the amendment process by the TCEQ for surface water, and that promote uniform and streamline permitting by groundwater conservation districts for groundwater. Evaluate more transparent process needs and proper valuation of water.

Monitoring: Monitor the implementation of legislation addressed by the Senate Committee on Agriculture, Water & Rural Affairs during the 85th Legislature, Regular Session, including, but not limited to: SB 1511 (prioritization in the regional water plan); SB 1538 (Floodplain Management Account uses); SB 864 (GCD application of state water); HB 2004 (Texas economic development fund for TDA); and HB 3433 (adoption of rules affecting rural communities. Make recommendations for any legislative improvements needed to improve, enhance, or complete implementation including regional water planning, flood planning, and groundwater production.)

 

Kim Wilson, Texas Commission on Environmental Quality

  • Described TCEQ’s role as authorizing agency for water permitting
  • Permitting is a “first come” strategy
  • Working to streamline processing by identifying roadblocks
    • Implementation of other projects outside of permitting was identified as the major barrier and lengthened processing time
    • Described prior year efforts to expedite processing times (SB 3 2014, water master program, focus on contested applications, etc.)
    • Under 200 pending permit applications currently
    • Working to get that number near 125
  • Determined permitting group needed to be isolated from other projects
  • Received additional resources from legislature to fund more resources
  • Redesigned and continually reviewing the permitting application to better facilitate accurate information and faster processing
  • Working with stakeholders more and earlier in the process of developing permit application
    • Described specific application as an example
  • Reviewed types of applications received
    • Different types require different levels of technical review
    • Established a more streamlined process for the less intensive applications (created 2 years ago, average processing time of 177 days)
  • HB 3433 (85th) – followed guidance from OAG and have completed rule making for the bill.
    • Rulemaking includes rural community impact
  • Perry – how are you making sure that people are aware that they need to do the impact study?
    • Through rule making that govern the permits, how do the new rules implement impact rural communities.
    • Will provide more specific information to the committee
  • Rodriguez – how does the agency interpret the part of the bill related to notification to each member that represents the rural community?
    • Will provide that information to the committee
  • Perry – would like a TCEQ definition of ‘Rural community”
    • Will provide that information
  • Kolkhorst – commended TCEQ on response to legislature and community in working through the rule making process
  • Perry – we may not like the outcome of the decision but have full confidence TCEQ is doing a great job working through this.

 

Temple McKinnon, Texas Water Development Board

  • Rules now require state to include information related to projects that require SWIFT funding
  • Rules include requirement for public notice and open meeting rules for planning groups
  • Require planning groups to consider requirements of SB 1511
  • Within 2 years all groups will be drafting regional water plans that include requirements of SB 1511
    • Currently implement simplified planning based on “significant change”
    • Rules limit simplified planning to off-census years due to the use of that information in the planning cycle
  • Perry- got note regarding “rural” – 25,000 people

 

Sam Marie Hermitte, Texas Water Development Board

  • Worked with weather service to find implementation sites (SB 1538)
  • This biennium funding additional gauges
    • Full buildout will be 60 gauges
  • Working with weather service for build out of weather models for flood forecasting
    • Will implants 23 model points along San Jacinto River as a response to Harvey
  • Implementing LiDAR to develop terrain maps
    • Used in flood modeling and, mapping
    • Acquiring models for parts of the Houston area and Gulf Coast
  • Working on website texasflood.org to better communicate information with the public including river conditions
  • Community assistance – offering $1.8 million for flood planning and assistance
    • Using FEMA funds through technical partners program
    • TWBD supports areas of the state not covered by other partners
  • Currently working on first statewide flood plain risk analysis, prioritizing critical areas
    • Working with stakeholders through workshops and online surveys
    • Draft of the first flood assessment will be released in July
    • Final assessment will be released in December
  • Perry – concerned that it costs $55,000 per gauge and $17,000 in continuing costs, can you speak to that? Also related to LiDAR, is that duplicative information and dollars spent?
    • Coordinating with FEMA on LiDAR coverage, there are State dollars and FEMA dollars being used for that
  • Perry – how much was the balance of the fund provided for that?
    • Unsure at this time
  • Perry – how is the $1.8 million prioritized?
    • Will provide that information to the committee
  • Perry – would like to see assessment of most affected areas and would like to see any and all duplicative information in coordinating flood plan report.
  • Hinojosa – an issue that came up after Harvey was an early warning system, is that being addressed?
    • Do not have a specific answer regarding that, will provide that information to the committee
  • Hinojosa – curious as to which areas are identified as problem areas related to this
  • Kolkhorst – do you coordinate with the river authority related to the programs and gauges?
    • We do, specifically in the TexNet program and texasflood.org related to river conditions
    • Also coordinating with them for gauge locations
  • Kolkhorst – who installs and upkeeps the gauges?
    • The US geological survey
    • They also have gauges with numerous authorities across the state
  • Kolkhorst – is there a capability to create like an amber alert as a warning for flooding?
    • There is capability to do that through the website to set up alerts to certain gauges and other mechanisms
  • Kolkhorst – need to work toward a wholistic alert system. Speaking to flood protection grants, GBRA has been very aggressive in seeking grants.
    • The data in the written testimony is showing regional cooperating technical partners
    • TWBD is the statewide partner that is working with those on areas outside of the
    • Does not show who has applied for the $1.8 million in grant funding
  • Kolkhorst – would like to be sure that river authorities in the district have applied for that
  • Hall – would like to speak with the panel about shortages of water and the “take or pay” system of conservation and would like suggestions on how to address this
    • Will provide response to the committee
  • Perry – would like to continue the conversation toward technology related to amber alert style system for flooding. There are a lot of other parts and jurisdictions involved in water in Texas and need to get closer to identifying these and creating necessary MOUs before the end of next session. TWBD should be the agency that can help identify who is responsible for what.
  • Kolkhorst – as we move forward, we need to consider debris removal in major rivers as well as the feeder streams, including incentivizing mitigation programs, etc.
  • Perry – Harris County and Houston got hit the hardest, with that $1.8 million there needs to be consideration for small and rural communities that do not have the same resources as the urban areas. Also, committee members should be aware that the flood report is still being drafted and should mention any information you have to the TWBD as it is still in draft.

 

Stacey Steinbach, Texas Water Conservation Association

  • Described TWCA
  • Provides water and wastewater services across the state as well as acts as an advisory capacity to the legislature
  • Created surface water committee after 84th Session
  • Committee worked on 5 bills passed in 85th session
  • Supports updating and funding Water Availability Models (WAMs) moving forward
  • In the last 5-6 years TCEQ has taken significant steps to streamline the permitting process, which has been an ongoing issue over past sessions in recent years
    • Many TCEQ initiatives have been impactful

 

Michael Booth, Texas Water Conservation Association

  • Concentrating on flooding issue
    • Working to get briefing papers completed next month
  • Split between interested parties on how to do streamlining permit process over last sessions
    • Expecting to continue to work on this in next session
    • Believe that a bill could be passed
  • Described personal experience with both protestants and users
  • Streamlining bills have helped balance power between parties especially in contested cases
    • Many improvements left to be made
  • Contested cases should have enough detail for TCEQ to direct the State Office of Administrative Hearings (SOAH) on what to do
  • SB 225 – has issues with not letting contestants/protestants, would need more information from TCEQ.
  • Perry – get with my office relating to information on SB 225, it is on our bills to rethink list

 

Jason Hill, JT Hill & Co.

  • Have dealt with many permits types in career
  • TCEQ has made changes in streamlining the permit process
  • Has concerns with contested case hearing process
    • Many opportunities captured in SB 225 where the permitting process can be expedited without skirting due process
    • That process is important, but there are many opportunities for people to come into a hearing at SOAH that didn’t qualify as an affected person or did not have the opportunity to be identified as an affected person
    • Many opportunities to improve that process and to improve what get referred to SOAH
  • The importance of creating water development projects is such that this issue needs to be resolved
  • The more the process can be predictable the better off applicant across the spectrum of need will be
  • Contested case hearings are expensive, the more efficiency and predictability, the better off it will be for the permitting process and applicants
  • Perry – how many cases actually go through the SOAH process and the case ends there?
    • Very few settle out, without going on to the district court
  • Perry – why do cases go to SOAH if they are going to go to district court anyway? These cases are getting tried twice, why not go strait to district court or take SOAH ruling as final?
    • Contested case hearing process is not a unique process and does not cross jurisdiction
  • Hinojosa – how long does it take to get a water permit?
    • Described specific experience that took over 11 years
    • Much of that time was taken at the agency level review, which many streamlining efforts have been made since
  • Hinojosa – seems to be a common problem with government in general. Seems like this system is quite broken.
  • Booth – this specific instance involves an issue that was more involved than most and was an extreme example. Most cases do not go to contested hearings. Over the years, the SOAH judge’s ruling has been strengthened. Will provide more details to the committee outside of the hearing.
  • Perry – not advocating for getting rid of due process and would like to continue the conversation offline
  • Rodriguez – there is a reason this process was created, mostly concerning highly technical evidence. Experience that SOAH does a very good job. Generally speaking, cases do not take 11 years. How long does the average case take?
    • Booth – very few of them are there very long except for those in which everybody agrees more time is necessary.

 

Carlos Rubinstein, RSAH2O

  • Provided written testimony
  • Described why cases end up in SOAH
    • Mostly regarding fair allocation of water/property rights
    • Many other factors contribute to disputes
  • Better science could help with this issue, providing addition resources for that would move this issue forward
  • Political and social barriers contribute to disputes
  • Addressing many of these issues would help with valuation of water
  • Streamlining practices have moved the ball forward
  • SB 1430 has also improved valuation of water
    • TCEQ is in process of drafting and adopting rules for the bill
    • Troubled that draft rule includes reopening clause, perhaps should be addressed differently
  • Working with INTERA on white paper on how to address some of the issues that get in the way of using the best science possible in valuations
    • Texas is a leader in the models used for water, but can always be improved
  • Perry – what does a reopener clause mean?
    • Basically, that permits issued after a certain date could be reopened to clarify issues.
    • Perry – it interjects uncertainty in revenue
  • Rodriguez – is that authorized in the bill?
    • Do not recall that it’s in the bill
    • Supports TCEQ ability to have special rules, but do not believe that reopener clause is included in that
  • Rodriguez – “additional investment and refining of modeling capabilities is needed” what does that mean?
    • There are inherent issues with the models like updating and relying on the models for information that they were not intended to provide.
  • Rodriguez – what would the necessary dollar amount?
    • Unknown at present
  • Perry – WAMs updated in 90s at roughly $7 million

 

John Hofmann, Lower Colorado River Authority

  • Described LCRA
  • Related to permitting process – echo the previous comments related to streamlining the contested case process, especially identifying affected persons
    • Need to be able to better define what the contested issues are at the beginning of a hearing
    • More importantly what they are not
    • Provided examples of what the contested case does not consider (interpreting contracts, etc.)
  • LCRA water management plan is subject to specified timeline for the agency
  • Groundwater – have a pending permit related to Lost Pines GCD so will not speak to that
  • Groundwater district’s ability to determine the exporting of water, and LCRA would support anything that gives clarity to that issue
  • Important for LCRA to be able to place ground water into a surface water body (power plant cooling lake, etc.)
  • Water valuation observations
    • Price does not equal value: based on current legal authority river authorities are cost of service based not in term of value to end user. Could be argued that placing value on water outside of cost to produce it is prohibited by current system.
  • Perry – is it your opinion that the judiciary of the SOAH cases is working based on lack of clarity?
    • That is correct, there has been legislation last session that helped spell that out, but it could be clarified in stature even further.
  • Perry – valuation of water will continue to be an issue, do not know how to make the process better without making it worse through subjectivity. Would welcome any insight and expertise on that issue.
  • Kolkhorst – where is the LCRA related to different meters and is it as expensive as alluded to in previous testimony?
    • Have a number of gauges that serve a number of different functions, but could be as cheap as $20,000 or expensive as $58,000 depending on what the gauges do and how they transmit information
    • Partnerships with USGS are important when considering the $7,000 in ongoing maintenance
    • Have open communication with TWDB related to the gauges
    • Many people are working on cheaper ways to do the gauges, but the expensiveness of the network is a real problem. Additionally, redundancy is hugely important given the environment they are in
  • Kolkhorst – in terms of a simple alert system, what is the feasibility of something like that?
    • LCRA has an alert system notification subscription that would alert to community
  • Kolkhorst – what interfacing do you have with downstream communities regarding grant opportunities?
    • In constant conversation related to grant opportunities including many “town hall” type events
  • Kolkhorst – were the lakes designed as flood control?
    • Originally for irrigation, flood control pools were added afterwards
    • Described flooding occurrence in Austin that led to determination by the legislature that flood control/storage was to be a function of the lakes
  • Kolkhorst – hoping that LCRA has run models of flooding scenarios, the question is how to use reservoirs as water collection as well as flood prevention.
  • Perry – balancing the cost and effectiveness is the question moving forward

 

Matt Phillips, Brazos River Authority

  • Permit Streamlining – supported many of the efforts the legislature has taken like SB 225
    • Issues with permitting timeline has largely been influenced by outside forces, like updated policies
    • Permits behind BRAs in line were also stacked up, which caused issues for others
    • Believes that technical review should have a statutory timeline (perhaps other areas of the process should have specified timelines as well)
    • Would support paying more for addition resources from TCEQ
  • Commended TCEQ on efforts to streamline the process
  • Kolkhorst – you are ok paying more for the TCEQ resources?
    • That is correct
  • Kolkhorst – stressed that the timelines must be reduced

 

Closing Remarks

  • Not expecting further committee hearings until September