A Survey of New Texas Environmental Laws

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State_Seal_of_Texas-300x232This is a brief survey of many of the environmental and regulatory laws passed by the Texas Legislature and signed by the Governor in the 86th Regular Session of the Legislature, which ended in May 2019. Altogether, more than 1,300 laws were enacted in this session, including a surprising number of environmentally related bills. Most of these new laws take effect on September 1, 2019. This survey places them in the following broad categories: Air, Water; Waste; Disaster (principally because of the effects of Hurricane Harvey); and Miscellaneous. (Special thanks to Jay Bowlby, a summer intern in our Houston office, who made a significant contribution to this survey.)

  1. Air

HB 1627—amends Section 386.001(2) of the Health and Safety Code to remove several counties from the list of counties with deteriorating air quality subject to the Texas Emissions Reductions Plan.

HB 1346—relates to the diesel emissions reductions incentives and gives the TCEQ flexibility in administering this program.

HB 2726—concerns amended air quality permit applications. The law provides that construction of a project may proceed, at the applicant’s own risk, after the TCEQ Executive Director has issued a draft permit including the permit amendment. However, this provision does not apply to a permit amendment affecting a concrete batch plant located within 888 yards of a residence.

HB 3725—creates the Texas Emissions Reduction Plan Trust Fund, which will be held by the Comptroller and administered by the TCEQ, which also administers the TERP program.

SB 698—authorizes the TCEQ to provide expedited processing of certain Texas Clean Air Act permit applications by increasing the agency’s permitting staff.

  1. Water

HB 26—amends the Texas Water Code to require the TCEQ to take the necessary actions to provide for the safe management of Texas dams, including downstream properties.

HB 137—amends the Texas Water Code to require the TCEQ to report all dams having a hazard classification of “high” or “significant.”

HB 720—amends the Water Code to allow “unappropriated water,” including storm water and flood water, to be appropriated for recharge into an aquifer of for aquifer storage and recovery.

HB 721—requires the Texas Water Development Board (TWDB) to conduct statewide studies and surveys regarding the availability of aquifers for storage and recovery.

HB 722—authorizes groundwater conservation districts to adopt rules governing permits for the production of brackish groundwater, which may play a key role in satisfying Texas’ future water needs.

HB 723—the TCEQ is directed to develop an updated water quality model for certain river basins by December 1, 2022.

HB 807—authorizes the TWDB to appoint an interregional planning council to facilitate water management strategies.

HB 1052—authorizes the TWDB to identify and facilitate proposals for water quality projects that benefit multiple water planning regions, including desalination projects. Permits authorized by this law will be subject to expedited TCEQ processing.

HB 2771—transfers the power to issue permits for the discharge of produced water, hydrostatic test water, and gas plant effluent from the Railroad Commission to the TCEQ.

SB 7—creates the Flood Infrastructure Fund as a special fund in the state treasury to be used by the TWDB and sets forth requirements for applications for financial assistance.

SB 8—establishes a process by which state and regional flood plans can be adopted, and the TDWB must complete a comprehensive state flood plan by September 1, 2024.

SB 483—amends the Water Code to facilitate the TCEQ’s issuance of permits for injection wells that transect portions of the Edwards Aquifer.

SB 1041—The TWDB is directed to identify and designate brackish groundwater production zones in certain areas of the state by December 1, 2032.

SB 1082—establishes a joint legislative interim committee to continue to study a coastal barrier system.

  1. Waste

HB 1331—The TCEQ application fee for a municipal solid waste permit will be $2000.00.

HB 1435—provides that before a permit for a proposed municipal solid waste management facility is granted or amended, the TCEQ will inspect the facility to confirm the accuracy of the information contained in the application.

HB 1953—amends the Texas Solid Waste Disposal Act (incorporated in the Health and Safety Code) to exclude from the definition of solid waste post-use polymers or recoverable Feedstocks processed through pyrolysis or gasification that do not qualify as hazardous waste under RCRA, to encourage recycling.

HB 3224—amends the Solid Waste Disposal Act to provide that a person who arranged for the recycling of certain recyclable materials would not be a responsible party under Section 361.271 of the Act, if the person can establish that he or she would qualify for CERCLA’s federal recycling exemption.

  1. Legislative Responses to Natural Disasters.

HB 5—directs the Texas Division of Emergency Management (TDEM) to develop a catastrophic debris management plan for the use of political subdivisions.

HB 7—directs the TDEM to develop a disaster preparation plan for the use of political subdivisions.

HB 2345—amends the Education Code to create the “Institute for Disaster Resilience Texas.”

HB 3365—amends the Civil Practice and Remedies Code to immunize from civil liability persons providing disaster assistance.

SB 6—(a) instructs the TDEM to provide guidance for local governments on disaster response and recovery in order to reduce confusion and delays that follow disasters; (b) contains provisions related to the disposal and management of debris generated by the disaster; (c) a special TDEM working group will work to enhance the training and credentialing of emergency management directors.

SB 201—amends the Criminal Code to increase the penalties for certain offenses committed in a disaster area.

SB 417—amends the Parks and Wildlife Code to allow persons other than landowners to take feral pigs without a hunting license.

SB 485—amends the Government Code to require the Governor, before the hurricane season, to issue a hurricane preparedness memo and to ensure that state agencies conduct appropriate outreach and educational activities.

SB 416—amends the Government Code to allow the Attorney General provide legal counsel to political subdivisions that are located in a declared state of disaster.

  1. Miscellaneous Enactments.

HB 907—amends the Water Code to increase the fines that may be assessed for failing to register with the TCEQ certain aggregate operations.

HB 1300—amends the Parks and Wildlife Code to authorize the Parks and Wildlife Commission to adopt rules governing cultivated oyster mariculture.

HB 1824—amends the Parks and Wildlife Code to authorize the San Jacinto River Authority and the Harris County Flood Control District to take for sale sand, gravel, marl, shell and mud shell from the river and its tributaries, with the proceeds used to protect fish habitat.

HB 2203—amends the Health and Safety Code to require that the Texas Department of Health Services and other agencies ensure that notice be provided to each affected political subdivision that there has been a reported release of a radioactive substance.

HB 2321—amends the Parks and Wildlife Code to enhance the penalties for harvesting undersized oysters from an area closed by the Parks and Wildlife Commission.

HB 2826—amends the Government Code to subject proposed legal contingency fee contracts with political subdivisions to review by the Attorney General, for which public notice must be provided.

HB 2845—sets forth minimum standards that must be followed to decommission wind projects, and to return the land to its pre-project state.

HB 2846—transfers ownership of the Allen Creek Reservoir from the City of Houston to the Brazos River Authority.

HB 3557—protects “critical infrastructure” (such as pipelines and communications towers) from vandalism by increasing civil liability and criminal enforcement penalties.

HB 4544—amends the Health and Safety Code to enhance the ability of municipalities to cope with coyotes (Note the contemporaneous enactment of SB 417 reported above).

SB 27—amends the Civil Practice and Remedies Code to provide for the recovery of fees, expenses and attorney’s fees from agencies whose enforcement actions were adjudged to be frivolous regulatory actions.

SB 1312—allows the Texas border counties to enhance their mosquito control operations through the use of a unique noncommercial applicator licensee those counties.

SB 1915—amends various existing statutes to strengthen the regulatory program of the Harris County Board of Pilot Commissioners.

HB 191—amends the Agriculture Code to establish a Pesticide Disposal Fund.

HB 306—amends the Health and Safety Code to add a new Chapter 99 to create an “Open Pit Burn Registry” for the use of military veterans who served in overseas areas where burn pits were used to dispose of solid waste.

HB 4166—requires the Red River Authority to study the feasibility of increasing navigation on sections of the Red River.