Tag: Texas

Paying for Water: The 83rd Legislative Session and the $2 Billion Water Infrastructure Bank

Among Texas leaders, there is a general consensus that the state must act now to ensure its long-term water security, and as the legislature convened for its 2013 session, many observers predicted water would emerge as a marquee issue.  And it did, with lawmakers introducing numerous water-related bills.

Three of these bills are aimed at financing enough water infrastructure projects to assure long-term water supplies for the state: H.B. 4, H.B. 1025 and S.J.R. 1. These bills could have a profound and long-lasting impact on Texas water law and water resources.

In anticipation of the November 5 special election, when voters will whether to approve through a proposition certain key legislative provisions, and of the extensive rulemaking processes that will follow if the proposition succeeds, the Center for Global Energy, International Arbitration and Environmental Law has prepared this white paper. It explains the key provisions in H.B. 4 and explores the contours and inflection points in complex legislation that –aside from a salient few details – remains relatively unfamiliar to the general public and even to those who work regularly on water policy issues.

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Implementing SB 3: Adopting Environmental Flows in Texas

Senate Bill 3 emerged from the Texas Legislature in 2007 as an attempt to create certainty over how the state deals with allocating water to environmental flows. Senate Bill 3 created a process in the Water Code requiring regional stakeholder groups (referred to as Basin and Bay Area Stakeholder Committees or BBASCs) to develop consensus-based environmental flow standards and strategies to meet the environmental flow standards specific to the rivers and bay systems in a particular region. The concept of “environmental flows” describes the flows of water necessary to protect the ecological health of rivers and of the bays and estuaries that are the ultimate recipients of these flows. The consensus of the scientific community is that for environmental flow standards to be adequate to support a sound ecological environment in a stream system, they must include minimum subsistence flows, varying levels of base flows, high flow pulses, and overbank pulses that vary throughout the year. Environmental flow standards establish requirements that govern when a water right holder may remove water from a stream or a river (instream flow requirements), thus protecting that water for instream and bay or estuary environmental needs.

The Water Code directs the Texas Commission on Environmental Quality (TCEQ), after considering the stakeholder committees’ recommendations, to adopt environmental flow standards “adequate to support a sound ecological environment, to the maximum extent reasonable considering other public interests and other relevant factors.” This paper summarizes the environmental flow standard and strategy recommendations made by the six stakeholder committees that submitted reports to the TCEQ and compares these to the standards the TCEQ ultimately adopted. The adopted standards only apply to permits seeking a new appropriation of water or to an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted.

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PACE in Texas: The Future of Contractual Assessment Financing for Conservation Improvements

Twenty-eight states have passed Property Assessed Clean Energy (PACE) enabling legislation but most – including Texas – do not have fully operational PACE programs. In some instances, this failure of PACE law to translate into concrete action may be due to drafting defects or to evolving PACE best practices that have rendered early-adopted laws obsolescent. In other instances, it may stem from the chilling effect of actions by mortgage regulators.

In March 2013, the Ninth Circuit Court of Appeals resolved the last of a series of legal challenges against mortgage regulators, establishing a period of at least temporary regulatory stability. Meanwhile, PACE supporters have continued to trumpet the investment and environmental opportunities in commercial, industrial and multifamily real estate retrofits. Several states have tried to capture these tailwinds by adopting or amending PACE statutes in ways that facilitate non-residential PACE and incorporate lessons learned from pilot programs and recent policy debates.

Texas is such a state. Bills introduced this legislative session – S.B. 385 and H.B. 1094 – would reconfigure PACE statutes first enacted in 2009 by expanding PACE to encompass water conservation and steering financing toward commercial, industrial and multifamily properties. If they pass, the bills could serve as a blueprint for other states that either have not passed PACE legislation or have PACE laws on the books that have yet to spawn actual PACE programs.

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Liquid Assets: Groundwater in Texas

This essay details the changes in groundwater ownership and management in Texas that have been triggered by the Edwards Aquifer Authority v. Day case. Part I establishes the foundation of groundwater management that has haltingly sought to more closely align multiple water rights regimes in Texas. Part II examines the various approaches to regulating groundwater, including those that create ownership for groundwater in place.  Finally, in light of the Day case and the contest over the permissible reach of regulation, this essay considers alternatives for allocating both the value and utility of groundwater, as well as assesses the possibilities the current state of affairs leaves us.

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Texas Water Will Suffer Under Plan to Lower Standards

This is an excerpt from the published online post to statesman.com by Thomas O. McGarity:

“The recent proposal by the Texas Commission on Environmental Quality [TCEQ] to downgrade the state’s water quality standards for most of the surface water in the state should trouble all who believe they have a right to swim, fish or simply wade in a cool Texas stream without the risk of contracting a gruesome waterborne disease.

As recently reported in the American-Statesman, TCEQ plans to change the standards for the vast majority of Texas rivers and streams from the current “contract recreation” designation, which allows only 126 colonies of E. coli bacteria, to new designations that would allow 206 colonies in some “swimmable” waters and up to 630 colonies in waters used primarily for fishing and boating.

The move is supported by the Texas dairy industry and by some cities that are having difficulties controlling their sewage discharges. The Texas Association of Dairymen argues that without the changes dairy farmers might have to build fences to keep their cattle away from rivers, thereby losing valuable acreage. The cities warn that they might have to charge higher rates for sewage treatment.”

To continue reading, please visit:  http://www.statesman.com/opinion/mcgarity-texas-water-will-suffer-under-plan-to-392013.html

Winds of Change: The Creation of Wind Law

This article discusses the beginnings of wind law and national development in judiciary and state law. Identifying it as the state standing at the forefront of wind law, the authors review the development of wind law in Texas.  A review of wind-related statutes provides insight into how those statutes (and the lack of others) lead to growth in the wind industry.  This article also discusses select wind cases and statutes from other states to further explore how wind law is developing, and it examines areas where case law is lacking, but likely to appear soon.

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