Laws of the 84th Legislature … are you in compliance?
The historic 84th Legislative session, operating with a new Governor for the first time in 14 years and a new Lieutenant Governor for the first time in 12 years, has been called a “Groundwater Session.” The reality is that many more changes came from the session than just laws related to groundwater.
It is important that elected officials, government and private practice engineers, planners, constructors, and other folks doing business for or with state or local governments to understand these new statutes and to seek sound legal and technical advice concerning compliance with the laws of the 84th Legislature.
While we cannot offer legal advice, we are happy to share some of the more than 1,200 laws passed by the 84th Legislature that have come to our attention, including:
- Public sector ethics and reporting requirements for public sector consultants
- Required desalination projects for Regional Water Planning Groups and Groundwater Control Districts
- Increased funding for state parks
- SWIFT fund reporting requirements
- Expert witness disclosure requirements
- Texas Commission on Environmental Quality (TCEQ) jurisdiction over Aquifer Storage and Recovery Projects (ASR)
- The use of drones in surveying and inspection
- Mitigation project acceptance
- Changes to Construction Manager-at-Risk (CMAR) delivery method procurement
- Public private partnerships (P3s)
Public Sector Ethics and Reporting
HB 23 spelled out strict definitions of vendor and client relationships, including limitations on gifts such as food, with criminal offenses for violations. The law requires more comprehensive reporting requirements relative to conflict of interest. Some public entities may need to revise their conflict of interest questionnaires to be in compliance. Consultants and vendors must adhere to strict requirements on giving limits and/or increase their disclosure. Public sector employees, local government officers and vendors to those entities are advised to seek guidance about this new statute.
Water planning through the Texas Water Development Board (TWDB)
Regional Water Planning Groups (RWPG) and Groundwater Conservation Districts (GCD) are now required to develop information concerning the potential for development of brackish groundwater or seawater desalination in their planning areas. HB 30 requires that these potential projects be included in Regional Water Plans and Desired Future Conditions (DFC) as designated desalination projects, considered as potential Water Management Strategy (WMS) for each RWPG, and incorporated into the DFC for each GCD if required.
Another component to HB 30 that is likely a result of the recent drought encourages regional resiliency through identification of hubs for regional distribution and interconnection. RWPGs should also ensure that their development of potential WMSs considers the required brackish groundwater desalination projects, and GCDs should ensure that their DFCs account for any recommended brackish groundwater desalination WMSs.
Increased funding for state parks
HB 158 and SB 1366 sought to restore the intent and funding for the Texas Parks and Wildlife Department (TPWD) from a statewide sporting goods sales tax. These funds have consistently been diverted for budget balancing purposes since the funding was first allocated for TPWD over two decades ago. This funding provides a temporary bump in allocations for TPWD after many decades of declining budgets and increasing challenges, evident to anyone who frequents state park facilities.
As these facilities are often the main avenue for many to access the outdoors, it is a welcome infusion of funding that hopefully will put a dent into a multi-decade list of deferred maintenance and upgrades.
State Water Implementation Fund for Texas (SWIFT) changes
HB 260 requires that specific project information be posted to the TWDB website for any SWIFT-funded project. This information includes project points, non-confidential application information, status of repayment of any loans from the system, and a risk-assessment for default by the entity – essentially a credit report for the entity. HB 260 also puts more requirements on TWDB to post SWIFT-specific information, such as bond rates, investments by the SWIFT fund, expenses incurred in the investment of the SWIFT fund, and other information to be displayed on the TWDB website. Entities desiring SWIFT-funding would be wise to insure that this level of disclosure is welcome by all parties and for all projects seeking funding.
Testimony of subject-matter experts
HB 510 now requires disclosure of all expert witnesses within 30 days of trial.
Aquifer Storage and Recovery Projects (ASR)
Under specific conditions spelled out in HB 655, TCEQ will have sole jurisdiction over ASR projects. ASR programs that are based only on the underground storage of permitted surface supplies fall under the sole jurisdiction of TCEQ. Withdrawals may not exceed deposits, as this would trigger GCD oversight rules, and water quality must meet or exceed native groundwater quality. Entities considering ASR or operating existing ASR might consider tailoring their programs to comply with HB 655 to simplify the oversight and compliance of their programs.
Use of drones in surveying or inspection
Engineers are protected in most cases in their use of drones, however, in addition to Federal Aviation Administration height restrictions, the state now prohibits certain acts by operators of drones through HB 1481. Although engineers and surveyors have an exemption to certain violations in the statute, the exemption is valid only if their actions are directed by their client over their client’s facility. Critical facilities such as dams, water and wastewater treatment plants, and power generation facilities are singled out as being off-limits to drones and violators may be found in criminal violation of the statute if they are operating in a critical area not authorized by their client or not owned by their client. We recommend reviewing this statute prior to surveying or inspecting by drone in the State of Texas.
Supplemental environmental projects by a local government
SB 394 states that when a local government is found on a first offense to be out of compliance with environmental laws or is required to remediate environmental harm caused by that local government, supplemental mitigation projects will be allowed in lieu of a penalty if that entity hasn’t previously committed a violation of the same type at the same site within five years. For entities facing TCEQ penalties for first time offenses, it may be in the best interest of a local government to review the mitigation options the bill provides prior to paying any penalties.
HB 2634 prohibits a local government’s architect or engineer from also serving as the construction manager at risk (CMAR). Prior to HB 2634, the engineer could serve as the CMAR if there were two separate procurements. This prohibition failed in two prior attempts in previous legislative sessions. Whether or not enactment of HB 2634 will lead to proposed changes to the design-build laws remains to be seen in the next legislative session. Government entities with a population of less than 100,000 are still prohibited from using design-build. HB 2634 prohibits those entities from using a CMAR method for which the same or affiliated corporate entities are responsible for the design and construction, albeit under two contracts. This single point of responsibility is a key attribute for a design build method and thus these entities under 100,000 population have lost the ability to use CMAR to achieve a design-build attribute which some government entities might desire.
Public Private Partnerships
HB 2475 created a center for Alternative Finance and Procurement, housed at the Texas Facilities Commission and available to governmental entities. This bill is somewhat of an extension of Public Private Partnerships (P3) legislation passed in 2011. The center will be a resource to local governments and provide assistance with procurement, negotiation and management of P3s. Using the center is mandatory for state-level entities such as state agencies, with the exception of the Texas Department of Transportation. While some local governmental entities may not be required to use the center, those local governmental entities that proceed with P3s under Chapter 2267 of the Texas Local Government Code will be required to use the services of the center or the services of outside advisors.
For additional information on these new state laws, please contact these subject matter experts:
Ethics: Ron Lemons, P.E., D. WRE
Water Resource Planning: Tom Gooch, P.E.
Water Resource Design: Victor Vasquez, P.E.
ASR: Jon Albright
Mitigation: Barbara Nickerson
CMAR: Douglas Herbst, DBIA
P3s: Douglas Herbst, DBIA