PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
CHAPTER 51. EXECUTIVE
SUBCHAPTER D. EDUCATION
The Texas Parks and Wildlife Commission in a duly noticed meeting on August 24, 2023, adopted an amendment to 31 TAC §51.81, concerning Mandatory Boater Education, without changes to the proposed text as published in the July 21, 2023, issue of the Texas Register (48 TexReg 3970). The rule will not be republished.
House Bill 2755, enacted by the most recent session of the Texas Legislature, amended Parks and Wildlife Code, §31.108 to require the commission to adopt rules to "approve boater education courses that meet or exceed the minimum instruction requirement established by the National Association of State Boating Law Administrators on or after January 1, 2016." Accordingly, the amendment to §51.81 alters current rules to require all boater education courses to satisfy the minimum national standards adopted by the National Association of State Boating Law Administrators in effect on June 1, 2022 to be approved by the department.
The department received one comment opposing adoption of the rule as proposed. The commenter stated that boater education is unnecessary because the commenter had been boating for 60 years without an accident. The department disagrees that the experience of one person should be used to guide the department's water safety programs. No changes were made as a result of the comment.
The department received five comments supporting adoption of the rule as proposed.
The amendment is adopted under the provisions of Parks and Wildlife Code, §31.108, as amended by House Bill 2755 enacted by 88th Texas Legislature (RS), which requires the commission to approve boater education courses that meet or exceed the minimum instruction requirement established by the National Association of State Boating Law Administrators on or after January 1, 2016.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 5, 2023.
TRD-202303716
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: October 25, 2023
Proposal publication date: July 21, 2023
For further information, please call: (512) 389-4775
In a duly noticed meeting on August 24, 2023, the Texas Parks and Wildlife Commission adopted new 31 TAC §51.615, concerning the Boating and Waterways Advisory Committee (BWAC), without changes to the proposed text as published in the July 21, 2023, issue of the Texas Register (48 TexReg 3970). The rule will not be republished.
Parks and Wildlife Code, §11.0162, authorizes the Chairman of the Texas Parks and Wildlife Commission (the Commission) to "appoint committees to advise the commission on issues under its jurisdiction." Under Parks and Wildlife Code, Chapter 31, the legislature has designated TPWD as the primary regulatory agency for boating and boating safety. Government Code, Chapter 2110, requires each state agency to adopt rules regarding advisory committees. Unless otherwise specifically provided by statute, the rules must (1) state the purpose of the committee; (2) describe the manner in which the committee will report to the agency; and (3) establish the date on which the committee will automatically be abolished, unless the advisory committee has a specific duration established by statute. Under this authority, the Commission has established a number of advisory committees to provide the department with informed opinion regarding various aspects and dimensions of the department's mission. These advisory committees perform a valuable service for the department and the people of Texas.
The department is the primary state agency responsible for water safety and boating regulation. Staff have determined that the creation of an advisory board for matters concerning boating and waterways would be helpful in assisting the department and the commission in determining and executing appropriate strategies to maximize public safety and public enjoyment with respect to boating in this state.
The department received five comments opposing adoption of the rule as proposed. Two of the comments were not germane to the subject of the rulemaking. Of the three comments germane to the rule, only one provided a reason or rationale for opposing adoption. That commenter opposed adoption and stated that there are too many advisory committees. The department disagrees with the comment and responds that advisory committees perform a valuable function for the department and the public by providing a sounding board for agency decision-making. No changes were made as a result of the comment.
The department received four comments supporting adoption of the rule as proposed.
The rule is adopted under the provisions of Government Code, Chapter 2110, which requires the adoption of rules regarding state agency advisory committee.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 5, 2023.
TRD-202303715
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: October 25, 2023
Proposal publication date: July 21, 2023
For further information, please call: (512) 389-4775
SUBCHAPTER J. FISH PASS PROCLAMATION
The Texas Parks and Commission in a duly noticed meeting on August 24, 2023, adopted an amendment to 31 TAC §57.901, concerning Prohibited Acts, without changes to the proposed text as published in the July 21, 2023, issue of the Texas Register (48 TexReg 3971). The rule will not be republished.
The amendment retitles the section to more accurately reflect its content and clarifies the delineation of restricted areas within the Cedar Bayou Fish Pass. Cedar Bayou is a natural channel that connects Mesquite Bay to the Gulf of Mexico and functions as a migratory path for various aquatic species to and from the estuary. In 1939, the Texas Legislature prohibited the operation, possession, or mooring of vessels and the placement of pilings, wires, ropes, cables, nets, traps, or other obstructions within 2,800 feet of the point where a fish pass connects with the Gulf of Mexico or connects with an inland bay, and further required this restricted area to be permanently marked. Cedar Bayou has been periodically dredged and maintained since that time and the department has erected signs indicating that Cedar Bayou is a fish pass.
The 75th Texas Legislature in 1997 amended Parks and Wildlife Code, §66.204, to specifically authorize the commission to "regulate the placement of obstructions, traps, and mooring in fish passes and the marking of restricted areas in any natural or artificial pass that is opened, reopened, dredged, excavated, constructed, or maintained by the department as a fish pass between the Gulf of Mexico and an inland bay." Consequently, the commission promulgated the current rule in 1998. The department has determined that the current rule should be amended to make it clear that "fish pass" and "restricted area" are not synonymous terms; therefore, the amendment adds new subsection (b) to make it clear that the restricted area within the fish pass where no vessels are allowed is distinct from the remainder of the fish pass where vessels may not be anchored or moored for a period exceeding two consecutive days.
The department received one comment opposing adoption. The commenter stated that boat access to the Gulf via Cedar Bayou should be allowed in order to create greater fishing opportunity. The department disagrees with the comment and responds that the rule is intended to clarify the status quo that's been in place for decades at Cedar Bayou. No changes were made as a result of the comment.
The department received seven comments supporting adoption of the rule as proposed.
The Coastal Conservation Association commented in favor of adoption of the rule as proposed.
The amendment is adopted under Parks and Wildlife Code, §66.204, which authorizes the commission to make rules governing the placement of obstructions, traps, and mooring in fish passes and the marking of restricted areas in any natural or artificial pass that is opened, reopened, dredged, excavated, constructed, or maintained by the department as a fish pass between the Gulf of Mexico and an inland bay.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 4, 2023.
TRD-202303707
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: October 24, 2023
Proposal publication date: July 21, 2023
For further information, please call: (512) 389-4775
DIVISION 1. GENERAL PROVISIONS
The Texas Parks and Wildlife Commission in a duly noticed meeting on August 24, 2023, adopted new 31 TAC §57.979, concerning Unlawful Possession of Shark Fins, with changes to the proposed text as published in the July 21, 2023, issue of the Texas Register (48 TexReg 3973) The rule will be republished.
The change replaces a comma in the introductory clause of subsection (b) with a colon and is nonsubstantive.
The new rule prescribes the process to be followed at a restaurant or place of business for treating shark fins to render them inedible and thus unfit for illicit commercial purposes.
The Texas Legislature during the most recent regular session enacted Senate Bill (S.B.) 1839, which addresses the unlawful sale and purchase of shark fins and products derived from shark fins. "Shark finning" is the act of removing a shark's fins and discarding the rest of the animal, often while it is still alive, leaving the animal to slowly die because it can no longer swim. The practice of shark finning is widely considered to be barbaric and wasteful, and it is illegal in Texas under current law (Texas Parks and Wildlife Code, §66.2161) and in many other states and countries as well. There is a significant commercial demand for shark fins and related products as foodstuffs, which, because the practice is illegal, has resulted in a lucrative opportunity for unscrupulous persons to engage in criminal activity at the expense of a public resource. In light of documented evidence that the practice continues to be common in Texas, the legislature determined that current statutory provisions regarding shark finning are problematic with respect to prosecution and insufficient in terms of deterrence. S.B. 1839 is intended to address the situation by, among other things, increasing penalties for violation and requiring persons in a place of business or restaurant to immediately destroy and discard shark fins while processing sharks for eventual sale. The bill delegates rulemaking authority to the commission to prescribe the particulars of the process by which shark fins are to be denatured (i.e., destroyed) and discarded.
The new rule stipulates that a shark fin must be destroyed by immersion in chlorine bleach, acid, or other such chemical or chemical solution for a period of time sufficient to render the shark fin inedible or otherwise unfit for human consumption. The rule also requires destroyed shark fins and shark fin parts to be lawfully disposed of at a landfill or disposal site authorized by the Texas Commission of Environmental Quality to accept such materials, which would include waste removal services provided by third parties.
The department received three comments opposing adoption of the rule as proposed. Two commenters provided a reason or rationale for opposing adoption. Both commenters opposed adoption and stated that legally possessed shark fins should be allowed to be processed and sold as food. The department disagrees with the comments and responds that under the provisions of Parks and Wildlife Code, §66.2161, the legislature expressly prohibits the possession of shark fins in any place of business. The commission does not have the authority to modify or eliminate that stipulation. No changes were made as a result of the comments.
The department received three comments supporting adoption of the rule as proposed.
The new rule is adopted under the provisions of Senate Bill 1839 of the 88th Texas Legislature (Regular Session), which amended Parks and Wildlife Code, §66.2161 to authorize the commission to promulgate rules stipulating the method and circumstances for the destruction and disposal of shark fins at a restaurant or place of business.
§57.979.Unlawful Possession of Shark Fins.
(a) It is unlawful for any person to, upon detaching a shark fin from a shark that is lawfully possessed and being processed in a restaurant or place of business, fail to immediately destroy the shark fin as prescribed in this section. Destroyed shark fins shall be lawfully disposed of, either by a contracted waste removal service or by direct transport to a landfill or waste facility permitted by the Texas Commission on Environmental Quality to receive such material.
(b) In this section, the following terms shall have the following meanings:
(1) Destroy--to treat a shark fin by immersion in chlorine bleach, acid, or other such chemical or chemical solution for a period of time sufficient to render the shark fin inedible or otherwise unfit for human consumption.
(2) Immediately--At once, without delay, promptly.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 4, 2023.
TRD-202303706
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: October 24, 2023
Proposal publication date: July 21, 2023
For further information, please call: (512) 389-4775
SUBCHAPTER A. PARK ENTRANCE AND PARK USER FEES
The Texas Parks and Wildlife Commission in a duly noticed meeting on August 24, 2023, adopted an amendment to 31 TAC §59.3, concerning Parks Entry Passes, with changes to the proposed text as published in the July 21, 2023, issue of the Texas Register (48 TexReg 3974). The rule will be republished.
The change replaces the semicolon at the end of paragraph (3)(B)(iii) with a period and inserts the word "and" at the end of paragraph (3)(B)(ii) for purposes of grammatical consistency. The change is nonsubstantive.
The amendment implements the provisions of House Bill (H.B.) 1740, enacted during the most recent regular session of the Texas Legislature. H.B. 1740 amended Texas Parks and Wildlife Code, §13.018, to require the department to issue a state parklands passport ("passport") at no charge to additional categories of persons.
Prior to the enactment of H.B. 1740, the department was required under Parks and Wildlife Code, §13.018, to issue a passport free of charge to qualified individuals, defined as Texas residents 65 years old or over; members of the United States armed forces on active duty who are 65 years old or over; veterans of the armed services of the United States who, as a result of military service, have a service-connected disability consisting of either the loss of the use of a lower extremity or a 60 percent disability rating and who are receiving compensation from the United States because of the disability; and individuals who have a physical or mental impairment that substantially limits one or more major life activities. H.B. 1740 amended Parks and Wildlife Code, §13.018, to include any person who is an honorably discharged veteran of the United States armed services, a member of the United States armed services on active duty, or the surviving spouse, parent, child, or sibling of a person who died while serving in the United States armed services. The amendment effects those changes in department rules, while making changes as necessary to remove conflicts with existing rule language.
The department received two comments opposing adoption of the rule as proposed. Both commenters provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.
One commenter opposed adoption and stated that the rule contains no method for preventing unscrupulous persons from obtaining a benefit they are not entitled to. The department agrees with the comment and responds that department protocols have been developed and deployed that will enable the department to ensure that the benefit created by H.B. 1740 is extended only to persons entitled to it. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule also should apply to the families of fallen peace officers. The department neither agrees nor disagrees with the comment and responds that the rule as adopted implements provisions specifically directed by a legislative act. No changes were made as a result of the comment.
The department received three comments supporting adoption of the rule as proposed.
The amendment is adopted under Parks and Wildlife Code, §13.018, which requires the commission to establish by rule the eligibility requirements and privileges available to the holder of a state parklands passport.
§59.3.Park Entry Passes.
Parks entry passes authorize entry privileges to parks where entry fees apply but are not valid for activity or other applicable fees.
(1) Annual Park Entrance Passes.
(A) A valid annual park entrance pass authorizes park entry without payment of an individual entrance fee for the holder of the annual pass, and:
(i) all occupants in the same vehicle with the holder of the annual park entrance pass if the holder of the annual park entrance pass is entering by noncommercial motor vehicle;
(ii) up to 14 persons accompanying the pass holder in the same boat if the holder of the annual park entrance pass is entering by boat; or
(iii) up to 14 persons accompanying the pass holder if the holder of the annual park entrance pass is entering by motorcycle, bicycle or on foot.
(B) An annual park entrance pass is valid only for private, noncommercial use and is not valid for:
(i) buses or similar vehicles; or
(ii) commercial use such as tour groups.
(C) An annual park entrance pass is not valid unless presented by the person named on the pass.
(D) The fee for an annual park entrance pass shall be established by the executive director within the range of $50 - $100.
(E) The fee for an annual park entrance pass that is part of a promotional drawing under the provisions of §51.750 of this title (relating to Promotional Drawings), of this title is $0.
(2) Youth Group Annual Entrance Pass.
(A) A youth group annual entrance pass authorizes entry to any state park without payment of an individual entrance fee for up to a total of 50 persons belonging to a nonprofit youth organization.
(B) The department on a case-by-case basis may limit the number of adult supervisors entering a park under this subsection. Vehicles entering a park under a single youth group pass may be subject to additional fees if the number of vehicles exceeds the vehicle capacity for the campsite.
(C) The fee for a pass under this subsection shall be established by the executive director within the range of $50 - $300.
(D) A youth group annual entrance pass is valid for 12 months from date of purchase.
(3) State Parklands Passport. A state parklands passport shall be issued at no cost to any person meeting the criteria established by Parks and Wildlife Code, §13.018. For the purposes of this paragraph, "accompanying" means entering a park simultaneously with the passport holder.
(A) A state parklands passport issued to a person in a category listed in this subparagraph authorizes the entry of the person to any state park without payment of an individual entrance fee, and includes the waiver of the entry fee for one person accompanying and providing assistance to the passport holder:
(i) a person whose birth date is before September 1, 1930;
(ii) a veteran of the armed services of the United States who, as a result of military service, has a service-connected disability, as defined by the Veterans' Administration, consisting of the loss of the use of a lower extremity or of a 60 percent disability rating and who is receiving compensation from the United States because of the disability; or
(iii) a holder of a state parklands passport issued on or before August 31, 1995.
(B) A state parklands passport issued to a person in a category listed in this subparagraph authorizes the entry of the person to any state park without payment of an individual entrance fee but does not waive or reduce the entrance fee for any person accompanying the passport holder:
(i) an honorably discharged veteran of the United States armed services;
(ii) a member of the United States armed services on active duty; and
(iii) the surviving spouse, parent, child, or sibling of a person who died while serving in the United States armed services.
(C) To be eligible for issuance of a state parklands passport under the provisions of Parks and Wildlife Code, §13.018(a)(3), a person must submit government-issued personal identification and one of the following:
(i) an Award of Benefits Letter or a Statement of Benefits from the Social Security Administration that attests to the applicant's permanent disability; or
(ii) an affidavit or attestation on a form approved by the department certifying that the applicant meets the requirements of Parks and Wildlife Code, §13.018(a)(3) and this subsection.
(D) A state parklands passport issued to a person in a category listed in this subparagraph who does not otherwise qualify under subparagraph (A) or (B) of this paragraph authorizes the entry of the person to any state park upon payment of 50% of the posted entrance fee for the park, rounded to the nearest higher whole dollar, which shall also apply to one person accompanying and providing assistance to the passport holder.
(i) a Texas resident whose birth date is after August 31, 1930; or
(ii) an individual who has a physical or mental impairment that substantially limits one or more of the major life activities of the individual.
(E) A parklands passport is nontransferable.
(F) The department may collect a fee for a replacement state parklands passport.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 5, 2023.
TRD-202303714
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: October 25, 2023
Proposal publication date: July 21, 2023
For further information, please call: (512) 389-4775
CHAPTER 362. STATE FLOOD PLANNING GUIDELINES
SUBCHAPTER A. STATE FLOOD PLAN DEVELOPMENT
The Texas Water Development Board (TWDB) adopts 31 Texas Administrative Code (TAC) §§362.2 - 362.4. Sections 362.2 - 362.4 are adopted with changes as published in the April 21, 2023, issue of the Texas Register (48 TexReg 2080). The rules will be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED AMENDMENT.
The TWDB adopts amendments to Chapter 362 including minor revisions to include consideration of flood management strategies and relevant updated guidance in the guidance principles. Additionally, adopted amendments in Chapter 362 will also be made in Chapter 361, as applicable, to ensure uniformity of terms.
SECTION BY SECTION DISCUSSION OF ADOPTED AMENDMENTS.
Several changes were made to Chapter 362 in response to comments received. Other changes include revisions to bring Chapter 362 and Chapter 361 into alignment.
Adopted amendments to §362.2 Definitions include updates to correspond to the changes to the definitions that are being made in Chapter 361. The alphabetical order of the definitions was updated..
Adopted amendments to §362.3 guidance principles include modifications to correct terms, such as changing "1.0 percent" to "1%." Citations to other rules and punctuation marks were also corrected.
The adopted amendments in §362.4(c) include a change to the ranking that will be included in the State Flood Plan. Previously, any FME, FMS, or FMP would need to have a one-time capital cost or other non-recurring cost to be included in the ranking. With this amendment, the ranking will include FMSs that have a non-recurring, non-capital costs.
PUBLIC COMMENTS (Texas Government Code §2001.033(a)(1))
The San Jacinto River Authority pointed out the need to change "solution" to "solutions" to match previous definition in §362.2(e).
TWDB acknowledges and agrees with the comment. The definition has been revised accordingly.
Freese and Nichols suggested revising the definition for §362.2(e), Flood Management Evaluation. Flood Management Evaluation (FME) to be a proposed study to define or quantify flood risk or flood risk reduction solutions. Freese and Nichols explained that in many cases, flood risk and a potential flood risk reduction solution have already been identified and FMEs have been recommended to further define the solution or satisfy requirements to be considered an FMP.
TWDB acknowledges and agrees with the comment. The definition for FME has been revised.
Freese and Nichols suggested revising the definition for §362.2(f), Flood Management Strategy. Flood Management Strategy (FMS) to better differentiate between FMEs and FMPs as well as clarify the types of actions that are eligible for funding within the FMS category. Freese and Nichols suggested removing the phrase, "ideas that still need to be formulated," in exchange for, "that result in flood risk reduction benefits that cannot be directly quantified through standard practices." Freese and Nichols stated that incorporating examples of types of actions that would qualify as an FMS and whose non-recurring, non-capital cost would be eligible for funding under the FMS category, would help to clarify the purpose of this category.
TWDB appreciates and agrees with the comment. The definition for Flood Management Strategy (FMS) has been modified.
Halff Associates explained that the drainage area size described in §362.3(b)(9) was not applied consistently throughout the 16 regions. Halff Associates stated that the inconsistent application resulted in varying degrees of localized projects being included in the RFPs. Halff Associates requested that the purpose or intent of the one square mile drainage area be clarified.
TWDB acknowledges and appreciates the comment. Guidance documents will be enhanced to provide further clarifications. TWDB considers it important to provide a starting point for RFPGs but also retain flexibility. No change has been made in response to the comment.
The San Jacinto River Authority requested clarification as to whether strategies should be considered in guidance principles related to water quality, fish and wildlife, ecosystem function, and recreation, and how long-term maintenance and operation of flood strategies will be conducted and funded, in accordance with §362.4(b)(36) and (38).
TWDB acknowledges and appreciates the comment. Section 362.3(b)(36) and (38) have been revised in accordance with the comment.
Freese and Nichols requested that §362.4(c)(5) be revised to be consistent with Guidance.
TWDB appreciates and agrees with the comment. Section §362.4(c)(5) has been revised in accordance with the comment.
STATUTORY AUTHORITY (Texas Government Code §2001.033(a)(2))
The amendment is adopted under the authority of Texas Water Code §6.101, which provides the TWDB with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and also under the authority of Water Code §16.453 (Floodplain Management Account for funding planning grants), §16.061 State Flood Planning, and §16.062 Regional Flood Planning.
Texas Water Code §16.061 State Flood Planning, §16.062 Regional Flood Planning, and §16.453 (Floodplain Management Account for funding planning grants) are affected by this rulemaking.
§362.2.Definitions and Acronyms.
(a) 1% Annual Chance Flood Event--Flood event having a 1% chance of being equaled or exceeded in any given year, also referred to as the base flood or 100-year flood.
(b) 0.2% Annual Chance Flood Event--Flood event having a 0.2% chance of being equaled or exceeded in any given year, also referred to as the 500-year flood.
(c) Board--The governing body of the Texas Water Development Board.
(d) Executive Administrator (EA)--The Executive Administrator of the TWDB or a designated representative.
(e) Flood Management Evaluation (FME)--A proposed study to identify, assess, and quantify flood risk or identify, evaluate, and recommend flood risk reduction solutions.
(f) Flood Management Strategy (FMS)--Flood risk reduction solution ideas and strategies that do not belong in FME or FMP categories. Examples may include regulatory enhancements, development of entity-wide buyout programs, and public outreach and education.
(g) Flood Mitigation--The implementation of actions, including both structural and non-structural solutions, to reduce flood risk to protect against the loss of life and property.
(h) Flood Mitigation Project (FMP)--A proposed flood project, both structural and non- structural, that has a non-zero capital costs or other non-recurring cost and that when implemented will reduce flood risk or mitigate flood hazards to life or property.
(i) Neighboring area--Any area, including but not limited to upstream and downstream areas, potentially affected by the proposed flood mitigation project.
(j) Political Subdivision--County, city, or other body politic or corporate of the state, including any district or authority created under Art. 3 §52 or Art. 16 §59 of the Constitution and including any interstate compact commission to which the state is a party and any nonprofit WSC created and operating under Ch. 67.
(k) Regional Flood Plan (RFP)--The plan adopted or amended by a Regional Flood Planning Group pursuant to Texas Water Code §16.062 (relating to Regional Flood Plans) and this chapter.
(l) State Flood Plan (SFP)--The most recent State Flood Plan adopted or amended by the Board under Texas Water Code §16.061 (relating to State Flood Plan).
(m) TWDB--Texas Water Development Board.
§362.3.Guidance Principles.
(a) Regional flood planning guidance principles shall be the same as the state flood planning guidance principles and will be revisited every five years.
(b) Development of the regional and state flood plans shall be guided by the following principles. The regional and state flood plans:
(1) shall be a guide to state, regional, and local flood risk management policy;
(2) shall be based on the best available science, data, models, and flood risk mapping;
(3) shall focus on identifying both current and future flood risks, including hazard, exposure, vulnerability and residual risks; selecting achievable flood mitigation goals, as determined by each RFPG for their region; and incorporating strategies and projects to reduce the identified risks accordingly;
(4) shall, at a minimum, evaluate flood hazard exposure to life and property associated with the 1% and 0.2% annual chance flood events (the 100 and 500-year floods) and, in these efforts, shall not be limited to consideration of historic flood events;
(5) shall, at a minimum, evaluate flood risk to life and property associated with 1% annual chance flood event (the 100-year flood) and address, when feasible, through recommended projects and strategies, the flood mitigation goals of the RFPG in paragraph 3 of this subsection to address flood events associated with a 1% annual chance flood event (the 100-year flood); and, in these efforts, shall not be limited to consideration of historic flood events;
(6) shall consider the extent to which current floodplain management, land use regulations, and economic development practices increase future flood risks to life and property and consider recommending adoption of floodplain management, land use regulations, and economic development practices to reduce future flood risk;
(7) shall consider future development within the planning region and its potential to impact the benefits of flood management strategies (and associated projects) recommended in the plan;
(8) shall consider various types of flooding risks that pose a threat to life and property, including, but not limited to, riverine flooding, urban flooding, engineered structure failures, slow rise flooding, ponding, flash flooding, and coastal flooding, including relative sea level change and storm surge;
(9) shall focus primarily on flood management strategies and projects with a contributing drainage area greater than or equal to 1.0 (one) square mile except in instances of flooding of critical facilities or transportation routes or for other reasons, including levels of risk or project size, as determined by the RFPG;
(10) shall consider the potential upstream and downstream effects, including environmental, of potential flood mitigation projects and flood management strategies on neighboring areas. In recommending projects and strategies, RFPGs shall ensure that no neighboring area is negatively affected by the regional flood plan;
(11) shall include an assessment of existing, major flood mitigation infrastructure and will recommend both new strategies and projects that will further reduce risk, beyond what existing flood strategies and projects were designed to provide, and make recommendations regarding required expenditures to address deferred maintenance on or repairs to existing flood infrastructure;
(12) shall include the estimate of costs and benefits at a level of detail sufficient for RFPGs and sponsors of flood mitigation projects to understand project benefits and, when applicable, compare the relative benefits and costs, including environmental and social benefits and costs, between feasible options;
(13) shall provide for the orderly preparation for and response to flood conditions to protect against the loss of life and property and reduce injuries and other flood-related human suffering;
(14) shall provide for an achievable reduction in flood risk at a reasonable cost to protect against the loss of life and property from flooding;
(15) shall be supported by state agencies, including the TWDB, General Land Office, Texas Commission on Environmental Quality, Texas State Soil and Water Conservation Board, Texas Parks and Wildlife Department, and the Texas Department of Agriculture, working cooperatively to avoid duplication of effort and to make the best and most efficient use of state and federal resources;
(16) shall include recommended strategies and projects that minimize residual flood risk and provide effective and economical management of flood risk to people, properties, and communities, and associated environmental benefits;
(17) shall include strategies and projects that provide for a balance of structural and nonstructural flood mitigation measures, including projects that use nature-based features, that lead to long- term mitigation of flood risk;
(18) shall contribute to water supply development where possible;
(19) shall also follow all regional and state water planning guidance principles per §358.3 of this title (relating to State Water Planning Guidelines) in instances where recommended flood projects also include a water supply component;
(20) shall be based on decision-making that is open to, understandable for, and accountable to the public with full dissemination of planning results except for those matters made confidential by law;
(21) shall be based on established terms of participation that shall be equitable and shall not unduly hinder participation;
(22) shall include flood management strategies and projects recommended by the RFPGs that are based upon identification, analysis, and comparison of all flood management strategies the RFPGs determine to be potentially feasible to meet flood mitigation and floodplain management goals;
(23) shall consider land-use and floodplain management policies and approaches that support short- and long-term flood mitigation and floodplain management goals;
(24) shall consider natural systems and beneficial functions of floodplains, including flood peak attenuation and ecosystem services;
(25) shall be consistent with the National Flood Insurance Program (NFIP) and shall not undermine participation in nor the incentives or benefits associated with the NFIP;
(26) shall emphasize the fundamental importance of floodplain management policies that reduce flood risk;
(27) shall encourage flood mitigation design approaches that work with rather than against natural patterns and conditions of floodplains;
(28) shall not cause long-term impairment to the designated water quality as shown in the state water quality management plan as a result of a recommended flood management strategy or project;
(29) shall be based on identifying common needs, issues, and challenges; achieving efficiencies; fostering cooperative planning with local, state, and federal partners; and resolving conflicts in a fair, equitable, and efficient manner;
(30) shall include recommended strategies and projects that are described in sufficient detail to allow a state agency making a financial or regulatory decision to determine if a proposed action before the state agency is consistent with an approved regional flood plan;
(31) shall include ongoing flood projects that are in the planning stage, have been permitted, or are under construction;
(32) shall include legislative recommendations that are considered necessary and desirable to facilitate flood management planning and implementation to protect life and property;
(33) shall be based on coordination of flood management planning, strategies, and mitigation projects with local, regional, state, and federal agencies projects and goals;
(34) shall be in accordance with all existing water rights laws including, but not limited to, Texas statutes and rules, federal statutes and rules, interstate compacts, and international treaties;
(35) shall consider protection of vulnerable populations;
(36) shall consider benefits of flood mitigation projects and flood management strategies to water quality, fish and wildlife, ecosystem function, and recreation, as appropriate;
(37) shall minimize adverse environmental impacts and be in accordance with adopted environmental flow standards;
(38) shall consider how long-term maintenance and operation of flood mitigation projects and flood management strategies will be conducted and funded; and
(39) shall consider multi-use opportunities such as green space, parks, water quality, or recreation, portions of which could be funded, constructed, and or maintained by additional, third-party project participants.
§362.4.State Flood Plan Guidelines.
(a) The EA shall prepare, develop, and formulate the state flood plan and the Board shall adopt a state flood plan pursuant to the schedule in Texas Water Code §16.061.
(b) The EA shall incorporate into the state flood plan presented to the Board those RFPs approved by the Board pursuant to Texas Water Code §16.062 and Chapter 361 of this title (relating to Regional Flood Planning). The Board shall, not less than 30 days before adoption or amendment of the state flood plan, publish notice of its intent to adopt a state flood plan and shall mail notice to each RFPG. The Board shall hold a public meeting during which it may adopt a state flood plan or amendments thereto.
(c) The state flood plan shall incorporate information from Board-approved RFPs, and shall address, at a minimum, the following:
(1) basis for state flood planning, including sections on Texas water statutes, rules, regulations, and Texas' flood management and mitigation institutions;
(2) summary of the condition and adequacy of major flood control infrastructure on a regional basis;
(3) summary of existing flood risk associated with 1% annual chance and 0.2% annual chance flood events;
(4) description of methods used to develop the regional and state flood plans;
(5) a statewide, ranked list of recommended FMEs and FMPs that have associated one-time capital costs or other non-recurring costs, and FMSs with non-recurring non-capital costs derived from the Board-approved RFPs;
(6) an analysis of completed, ongoing, and proposed FMEs, FMPs, and FMSs included in previous state flood plans including projects funded by the TWDB;
(7) a discussion of how the recommended FMEs, FMPs, and FMSs will reduce flood risk and mitigate flood hazards; and
(8) legislative recommendations the Board considers necessary to facilitate flood mitigation planning and FME, FMP, and FMS implementation.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 6, 2023.
TRD-202303727
Ashley Harden
General Counsel
Texas Water Development Board
Effective date: October 26, 2023
Proposal publication date: April 21, 2023
For further information, please call: (512) 463-7686