TWCA Confluence Newsletter April 2018 by Texas Water Conservation Association

CONFLUENCE APRIL 2018

Texas Water Conservation Association | twca.org

IN THIS ISSUE: • First Major Texas Reservoir in 30 Years gets Permitted • Texas Water Day Recap • TWCA Hosts Strategic Planning Meeting • New BRA GM Collinsworth Answers our Questions • And More... 1

Table of Contents

President’s Message Mike Booth

San Antonio’s Newest Downtown Linear Park is Flowing with Purpose

Incoming President’s Message Hope Wells

TWCA Hosts Strategic Planning Retreat

What’s new in the Water World?

Accounting Plans: Regulators’ Needs and Water Portfolio Management Opportunities

Long-Awaited North Texas Reservoir Approved for Construction

Update on 85th Session Interim Charges

Texas Water Day 2018 Recap

A Q&A with the new BRA General Manager/ CEO, David Collinsworth

Flood Litigation

2018 Annual Convention Recap

April 2018 - Spring Confluence

Sparking Ideas One Collaboration at a Time: Groundwater Educational Outreach Collaborative

Flu Season Hit Hard this Winter and Wonâ&#x20AC;&#x2122;t Go Away

Bond-Validation Lawsuits: Fast Litigation to Get Projects Moving

SJRA Announces New Leadership Role in Regional Flood Management and Welcomes Chuck Gilman as Director

Whatâ&#x20AC;&#x2122;s New with TWCA?

Board Members & Past Presidents

Cover photo: Floating the Guadalupe River is a popular past time during Central Texas summers.

Message from the President

Mike Booth - Booth, Ahrens & Werkenthin, P.C. Shortly after becoming PresidentElect, Carolyn Ahrens called me into her office and asked about my plans as TWCA President. She said that based on her experience of leading big organizations, my year as President would fly by, and I needed to be working on my agenda now. Fortunately, I listened to her. While I haven’t finished everything I planned to this year, I believe we have made significant progress towards modernizing the Association and keeping it relevant. I recognize that the following list of this year’s major accomplishments could not have been achieved without the hard work of our volunteers and additional financial support from our sponsors, including the TWCA Risk Management Fund. This year we adopted a new logo; revised the by-laws to, among other things, allow for Presidential appointment of newer members to get Board experience; stepped up the Association’s input into federal law and policy; created the TWCA Legal Advocacy Fund to assist in funding TWCA amicus curie briefs; and what might end up being the most significant event for the Association, held a Strategic Planning Retreat with a cross section of our membership. We are in the process of putting together a summary of the findings of the retreat, and you will be hearing more about the results, as well as what additional work needs to be done in the coming months. Be sure to read Dan Buhman’s article recapping our strategic planning meeting in this issue. The Finance Committee, besides overseeing the Association’s improving financial position and independent financial review of its books, provided input and will soon adopt an Employee Manual. In closing, no one could be President of an Association with as many members as we have without excellent staff support. Thanks to Dean, Stacey, Lisa, Adeline, and Becky for all of their hard work. I look forward to continue working with staff, our members and our new President Hope Wells in continuing the Association’s work.

TWCA Officers & Executive Committee President - Michael J. Booth President-Elect - Hope Wells Immediate Past President - Phil Kelley Panel Chairs: Timothy L. Brown Lyn Clancy John Chisholm Drew Satterwhite Sonny Hinojosa James Kowis Wayne Owen J. Kevin Ward Mike Yost Vice Presidents: Fiona Allen Kim Carroll Tom Gooch Glenn Jarvis Kathy Turner Jones

Glenn Lord Martin Rochelle Michael F. Thuss Walt Sears

TWCA Staff General Manager Dean Robbins drobbins@twca.org Assistant General Manager Stacey Allison Steinbach ssteinbach@twca.org Ofﬁce Manager/Events Coordinator Lisa Henley lhenley@twca.org Director of Communications Adeline Fox afox@twca.org Administrative Assistant Becky Arledge barledge@twca.org

Texas Water Conservation Association 3755 S. Capital of Texas Highway, Ste. 105 Austin, Texas 78704 www.twca.org | 512.472.7216

Michael J. Booth

Message from the Incoming President Hope Wells - San Antonio Water System

I am very excited to represent TWCA as its incoming president. I am honored to follow in the footsteps of Mike Booth, our current president, as well as all my predecessors in this important service to the Association. As I mentioned at the annual convention, TWCA members represent a diverse and knowledgeable group that is truly committed to furthering the water needs of this state. The presidency is just a small part of this effort and I look forward to working with all our members in the coming months. I am also eager to work closely with Dean, Stacey and all the TWCA staff who provide tremendous support to the Association in meeting our goals. Looking ahead, I plan to work on several initiatives at TWCA that will help us continue our great work in the water industry. Our strategic planning effort, initiated this year, has provided a valuable opportunity to ensure that we are accurately articulating and accomplishing our mission, as well as effectively communicating with both our membership and other stakeholders with whom we work. In my time at TWCA, I have seen incredible effort from our various panels and committees in building consensus around sound water policy. I look forward to continuing in that vein, including working with the new Flood Response Committee created by President Booth at the annual convention last month to respond to the state’s flood education and policy needs. One of TWCA’s strongest suits is our work in the legislative arena, and I’m looking forward to serving as president during the 86th Session, kicking off in January of next year. I’m sure we will have a strong presence, whether it’s advancing TWCA’s own initiatives or participating in discussions on the always active water agenda. Finally, I will continue to work with our Federal Affairs and Federal Steering Committees to ensure a coordinated and effective effort on the federal front. Looking forward to a great term!

Hope Wells

What’s new in the Water World? Featuring Retirements and New Job Announcements

New Job Announcements & Appointments • Former TWDB Chairman Bech Bruun is now running as a U.S. House of Representatives District 27 candidate. • Former Barton Springs Edwards Aquifer Conservation District General Manager John Dupnik is now the TWDB deputy executive administrator, a position previously held by Dr. Robert Mace. • Former TWDB deputy executive administrator, Dr. Robert Mace, is now chief water policy officer for the Meadows Center for Water and the Environment. • Previously working for the Texas Comptroller’s office as the Director of Legislative Affairs, Brooke Paup was appointed to the Texas Water Development Board to fill the third director position.

Notable Retirements • • • • • • • • •

Curtis Campbell - Red River Authority of Texas Ricky Clifton - Gulf Coast Authority Phil Ford - Brazos River Authority Paul Gosselink, Lloyd Gosselink Rochelle & Townsend, P.C. Richard Hyde - Texas Commission on Environmental Quality Paul Nelson - Lone Star Groundwater Conservation District Alan Plummer - Alan Plummer Associates, Inc. Martin Rochelle - Lloyd Gosselink Rochelle & Townsend, P.C. J.L. Rose - Brookshire-Katy Drainage District 6

Long-Awaited North Texas Reservoir Approved for Construction By Janet Rummel, North Texas Municipal Water District After more than 15 years of planning, construction is set to begin this spring on the Lower Bois d’Arc Creek Reservoir (LBCR) project, the first major Texas reservoir in almost 30 years. The North Texas Municipal Water District (NTMWD) will construct and solely own and operate the new 16,641 surface acre lake located northeast of the city of Bonham in Fannin County. It should take three summers to complete construction of the dam. Depending on rainfall, it should take about two years to fill the lake to an operational level. NTMWD expects to begin delivering water from the reservoir in 2022 which will yield up to 108 million gallons of water a day for residents and businesses served by NTMWD, including the city of Bonham, and communities in Fannin County. In early February, the U.S. Army Corps of Engineers (USACE) issued its Record of Decision (ROD) and granted a 404 permit to begin work on LBCR. The NTMWD Board of Directors voted unanimously to accept the permit along with mitigation plans and other agreements relating to construction of the lake. “This is a huge milestone for our region. The reservoir is critical for our growing service area of 1.7 million water customers, a number that will double in 50 years,” said Robert Thurmond, President of the NTMWD Board of Directors. “Much of the engineering work has been

Work on the project will include:

• clearing trees and brush from the dam site and other areas of the lake footprint; • construction of an over two-mile-long dam with intake and spillways; • construction of a pump station and raw water pipeline; • roadway improvements and construction of a more than one-mile-long bridge over the lake to provide access for area residents and visitors across and around the lake; and • environmental mitigation which involves planting trees and vegetation on 17,000 acres of nearby property to replace vegetation and wildlife habitat what will be displaced by the lake.

completed, and we are ready to get started on this long-awaited project,” Thurmond added. Additionally, the district plans to expand the northern portion of its water system with construction of a treatment plant and terminal storage reservoir in Leonard, as well as treated water pipeline connecting in McKinney. Extensive planning and coordination was involved in the planning for the mitigation that will replace trees, grasses, wetlands and wildlife habitat on land that will be covered by the new lake. During the permitting process, NTMWD worked with federal, state and local agencies

along with environmental organizations on mitigation plans that are included in the 404 permit granted by the USACE. As part of the permit, NTMWD will establish new vegetation on a 15,000-acre ranch northeast of the reservoir, and another 2,000 acres southeast of the lake near the city of Bonham. It is estimated that 1.6 million trees will be needed for the mitigation project. “This project is historically significant in terms of permitting, planning and smart development,” said Tom Kula, NTMWD Executive Director. “While the permitting process took two years longer than expected, LBCR will be built using the latest environmental and mitigation standards. This proves new reservoirs can be built responsibly. This is an example that it’s possible to support smart development and take care of the environment at the same time.” To date, NTMWD has purchased about 85 percent of the land needed for the reservoir and associated projects from willing sellers. Representatives of the district are contacting the owners of the remaining property needed. The district has worked closely with county tax officials to make sure Fannin and Lamar counties are kept “whole” on property taxes for land already purchased. To date, NTMWD has paid almost $1.7 million in property taxes in Fannin County and $17,778 to Lamar County. “Reservoirs are an absolute necessity in the state of Texas where most are man-made. The District Board and staff have worked with many stakeholders to make this critical new water source possible,” said Terry Anderson of Mesquite, the longest serving NTMWD member of the Board.“ The Board, representing the 13 Member Cities, has focused on meeting the needs of the growing communities in our region while being good stewards of our financial resources,” Anderson added. Construction of the project and other system improvements is estimated to cost more than $1.2 billion (2016 dollars). The District is working to update the project cost to include final mitigation requirements as well as the most current construction estimates factoring in the two-year delay. The TWDB has already approved $1.2 billion in low-interest

funding for the project through the State Water Implementation Fund for Texas (SWIFT program, which is anticipated to save NTMWD and ratepayers nearly $200 million in financing costs. To efficiently manage the project, the NTMWD Board of Directors selected a Construction Manager at Risk (CMAR) to oversee construction of the reservoir and other related projects. Currently there are four CMARs working with Freese and Nichols, the primary designer of the LBCR project. NTMWD will issue a request for proposals for mitigation services in March 2018 and anticipates selecting a contractor for those services by this summer. Archer Western (CMAR1) will manage clearing of the lake-site and construction of the dam and spillways. Garney (CMAR3) will build the pump stations and a 70 million gallons per day (MGD) water treatment plant in Leonard, Texas. As CMAR5, Garney will also build a 35-mile raw water pipeline from the dam to the new Leonard water treatment plant, and a 25.5-mile treated water pipeline from Leonard to connect into the NTMWD regional water system in McKinney. Austin Bridge and Road (CMAR4) will handle construction of new roads around the lake and a 1.3-mile bridge over the lake connecting areas and roads north and south. NTMWD is coordinating closely with the Texas Department of Transportation (TxDOT) on the road and bridge improvements. When completed, the reservoir is projected to help NTMWD meet water needs until 2040 and beyond. Even with the new reservoir, water conservation and additional reuse will be a major source of future supplies. It is estimated that additional conservation and reuse will account for almost a quarter of the district’s water supplies by 2070. While the primary purpose of the reservoir is to supply water to NTMWD Member and Customer cities, which includes the City of Bonham, the reservoir will also provide water to Fannin County communities and offer significant economic benefits for the entire area. Based on a 2012 Clower and Weinstein economic analysis that was updated in 2015, it is estimated that Fannin County will realize 8

at least $509 million of economic benefits during construction of the dam and related infrastructure. A secondary benefit of the reservoir will be recreation with development and housing planned near the shoreline. Long term, Fannin County stands to attract new businesses and visitors as a result of the new recreation opportunities the lake will offer. The Clower and Weinstein study projects that recreational visitors to the LBCR area will contribute an anticipated $17 million to $22 million annually to the Fannin County economy. Business, housing developments and recreational out-of-area visitor spending are expected to increase Fannin County property tax revenues by almost $2 million per year. Bonham school district property tax revenues are estimated to increase by $3.9 million and Bonham city sales tax revenues up $303,000. To assist Fannin County, the city of Bonham and other communities in preparing for the lake, NTMWD staff worked closely with officials from the city, county and other communities on long-range planning, development and roads around the lake and recreational facilities. With assistance from reservoir designer Freese and Nichols and input from the local community, Fannin County leaders developed a comprehensive plan to help manage development, recreation and protection of the natural environment around the new lake. The Lower Bois d’Arc Creek Reservoir zoning commission was established to work with Fannin County leaders and residents on zoning around the perimeter of the lake. Among the issues considered by the zoning commission are which property uses should be encouraged and which types should be restricted. As part of its commitment to Fannin County, NTMWD will build three boat ramps at future recreation areas on the lake and provide space for the Fannin County Sheriﬀ Department at the lake office. In addition, the district worked with the Texas Parks and Wildlife Department (TPWD) on plans to build fish habitat areas in the future lake.

This map illustrates locations of the LBCR project phases.

Over a decade in the making, the Lower Bois d’Arc Creek Reservoir project will benefit residents in the 80 communities served by the North Texas Municipal Water District for generations to come. “This has been a tremendous team effort, and we appreciate the support of all involved in the process,” added Kula. “It is a great example of the value and importance of regional water planning and collaboration among communities for the shared need of a longterm, reliable water supply.” For more information about the project, visit www.ntmwd.com.

Janet Rummel has nearly 20 years of experience in Public Relations and Corporate Communications and a degree in Journalism from Texas State University. She’s the Public Relations and Communications Ofﬁcer for NTMWD. jrummel@NTMWD.COM

Texas Water Day Recap 2018

By Tom Ray, Lockheed, Andrews & Newman

The 14th annual Texas Water Day (TWD) took place February 6-8, 2018 in Washington, D.C. This year, the message and the opportunity for its favorable consideration by our Texas Congressional Delegation were conveniently timed. At the federal level, new initiatives are underway to support infrastructure and reduce regulations. As we heard at TWD 2018, the two are very much linked. Logically, the focus of this yearâ&#x20AC;&#x2122;s TWD concentrated on waterrelated infrastructure and support for this infrastructure through a combination of federal resources and state regulatory reform. The goal of Texas Water Day has always been to identify and present up-to-date statewide priority water issues to our Texas Congressional Delegation, key congressional committee members and staff, and federal agencies. Identifying and prioritizing the issues is the job of the Texas Water Day Steering Committee. With the current focus on infrastructure and streamlining regulation from this Congress and Administration, our TWD 2018 agenda emphasized the importance to Texas and the nation of water infrastructure coupled with streamlining the permit requirements necessary to address our water infrastructure needs. Members of the TWD 2018 Steering Committee prepared an overall briefing paper

to highlight the two-part request: 1) support infrastructure and 2) streamline regulation. More detailed issue papers were also prepared to expand on Texasâ&#x20AC;&#x2122; priorities, as well as list concerns with current protocol. The briefing paper and the other issue papers were provided to our Texas Congressional Delegation and specifically addressed to the staffer responsible for water-related issues, carrying the message of the highest priority water needs for Texas. Each TWD participant received a booklet containing the briefing paper, issue papers and other information on TWD. View all papers and summaries on the TWCA website. Highlights of TWD 2018 Following the successes of prior events, TWD 2018 kicked-off with a congressional reception on Tuesday evening followed by our Speaker Series on Wednesday morning. Both events were held in the House Visitors Center at the U.S. Capitol. At the reception, TWD participants mingled with staff from Congressional Offices and Committees as well as leadership of the Corps of Engineers, U.S.G.S. and Bureau of Reclamation. Several members of the Texas Congressional Delegation attended the reception. Each spoke to the group, providing their perspectives on water-related

Texas Congressional members attending the reception included Gene Green, Brian Babin and Pete Olson to name a few. EPA Administrator Scott Pruitt addressed permitting and regulation changes.

infrastructure and permitting. Previous Texas Water Days have featured a Congressional reception to recognize and support members of the Texas Congressional Delegations and, importantly, their staff. This year was another excellent reception, which was wellattended by Congressional staff and agency representatives.

Related to water—infrastructure, federal funding, streamlining permits and reducing regulations—each speaker spoke to their expectations for the 2nd Session of the 115th Congress and the second year of the administration. Importantly, each speaker held some type of leadership role that relates to water:

Speakers Series Recognizing the Texas priority issues and the theme of TWD 2018, the line-up of speakers was extremely relevant. Each speaker brought us new information regarding the pending federal developments relating to water infrastructure permitting and financing. We were honored to have the water programs director of the U.S.G.S. followed by both Senator Ted Cruz and Senator John Cornyn, House Rules Committee Chairman Pete Sessions, Chairman Garrett Graves of the Water Resources and Environment Subcommittee of the House Transportation and Infrastructure Committee and EPA Administrator Scott Pruitt. We were also honored to have B.G. Paul Owen, the new Commander of the Southwest Division, U.S. Army Corps of Engineers, to provide an update. Many thanks to the steering committee members that helped us secure this outstanding group.

Senator Cornyn was successful in increasing the emergency supplemental aid during Harvey, the hurricanes in Florida and Puerto Rico, and wildfires in California, to almost $90 billion. The “earmark” ban was imposed in 2010 by the House Republicans. Chairman

• Senator Cornyn’s leadership on the Emergency Disaster Relief bill that will bring major federal support for the Hurricane Harvey impacted areas of Texas; • Senator Cruz’s efforts in supporting Hurricane Harvey funding and providing support for Texas water issues, including WOTUS, through the Senate Judiciary Committee; • Chairman Sessions with Speaker Paul Ryan’s assignment to evaluate and implement “Congressionally Directed Spending” (a means to replace “earmarks” and provide Congress with a direct means to support infrastructure); and, • Chairman Graves and his Subcommittee’s jurisdiction over the upcoming Water Resources Development Act (WRDA) and other water-related authorities.

Sessions assured the group that Congressionally Directed Spending would be launched in the 2nd Session, but he emphasized the need for “transparency, competition and benefits to the nation” as criteria for such funding. With a WRDA planned for this session, Chairman Graves’ remark regarding needed changes in federal infrastructure funding programs were noteworthy: our federal programs are “piecemeal and erratic” resulting in massive backlogs—there are too many federal funding programs— we need to reduce the programs and prioritize the projects. We are “spending a nickel on every $10 project.” EPA Administrator Scott Pruitt was clear that the time it has taken to receive federal permits was a major problem that he is reforming. When a permit takes 10 or more years to complete, “that’s not permitting, that’s obstruction.” He pledged that all EPA permits will be issued within 120 days by the end of 2018. Also, he is working with other federal agency heads to reduce all federal permitting time to two years or less.

Carmen, Jeff, Linda and Abby (with Association of California Water Agencies) pose during the reception.

The TWD 2018 Speakers Series had a full house!

Follow-up Needed We heard some good news in regards to regulation, permitting, and infrastructure funding, but TWCA needs to follow-up and continue to carry a consistent message to our Texas members and to the administration as infrastructure priorities are being considered. We must emphasize that water infrastructure is a critical, national need and benefit; the message cannot be repeated too often. We encourage TWCA members that meet with members of Congress or staff to add the Texas Water Day 2018 briefing paper to the other materials that are used in meetings. Continuing to follow-up is simply critical for successful outcomes of Texas water management.

Kevin, Billy, Mike, and Mark pose during the reception.

J. Tom Ray, PE, D-WRE, joined Lockwood, Andrews & Newman in 2001 as the Water Resources Programs Manager. His background is water resources engineering and project management, working with numerous federal, state, regional and local agencies. j-tray@lan-inc.com.

Flood Litigation

By Mike Booth, TWCA President and Attorney with Booth, Ahrens & Werkenthin In August of 2017, Hurricane Harvey hit the Texas coast causing miraculously few deaths but significant property damage for Texans due to the extensive rainfall and resultant flooding. Some estimate the damage caused by Harvey as second only to Hurricane Katrina’s. With so much flood damage, it was inevitable that many property owners would turn to litigation to attempt to address their losses. Numerous lawsuits were filed in federal and state courts in Texas alleging constitutional “takings” claims. The increase in these takings lawsuits have made flooding liability a significant issue for government entities that perform actions associated with flooding such as reservoir operations or drainage control. The validity and ultimate success of these types of lawsuits has become increasingly difficult to predict. The Texas Supreme Court case Harris County Flood Control Dist. v. Kerr, 499 S.W.3d 793 (Tex. 2016) (“Kerr”), and the United States Supreme Court decision Arkansas Game and Fish Commission v. United States, 568 U.S. 23, 133 S.Ct. 511 (2012) (“Arkansas Game”), have caused some commentators to predict that these types of takings claims are now more or less likely to be successful depending on the facts of the case.

the government causes flooding on private land, resulting in the property being “taken” for all practical purposes for public use. The ultimate determination of whether the facts are sufficient to constitute a taking is a question of law. Elements of a State Takings Cause of Action

A constitutional takings claim consists of three main elements: (1) the state or political subdivision intentionally performed certain acts under its lawful authority; (2) resulting in a taking, damaging, or destruction of the plaintiff ’s property; (3) for public use. The Texas Supreme Court in Kerr also identified the additional elements of Affirmative Conduct and Specificity. The Court designated these additional elements as subsets of the main element of Intent. Intent

Most of Texas’ takings jurisprudence focuses on the element of intent. The government’s intent was the major issue in the landmark case Tarrant Regional Water District v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004) (“Gragg”), where landowners and lessees of ranch property claimed that the construction and operation Takings Liability Under State Law of a reservoir caused a significant change in Article I, section 17(a) of the Texas flooding characteristics that damaged a ranch Constitution states: “no person’s property shall downstream. The Texas Supreme Court held be taken, damaged or destroyed for or applied that the requisite intent is present when a to public use without adequate compensation governmental entity knows that a specific act is being made, unless by the consent of such causing identifiable harm or knows that harm person...” This “takings clause” of the Texas is substantially certain to result. In Gragg, the Constitution is premised on the belief that the Court found this to be the case, holding that the government should not force some people alone evidence presented was sufficient to support to bear burdens which should be borne by the a finding that the reservoir caused recurrent public as a whole. Sovereign/Governmental destructive changes in flooding characteristics Immunity does not shield government entities that directly impacted the property such that it or political subdivisions from liability under the was no longer usable for its intended purpose, takings clause. resulting in a taking. The term “taking” is used to refer to the Comparatively, the Court found that the three types of claims: (1) taking, (2) damaging, requisite intent was lacking in the recent Kerr and (3) destroying property. The taking may case. In Kerr, approximately 400 homeowners be physical or regulatory. Most flooding located in the upper White Oak Bayou inverse condemnation cases involve physical watershed in Harris County sued Harris takings where an intentional action taken by County and Harris County Flood Control 13

District asserting a takings claim for flood damage that occurred during several tropical storms. Prior to those three flood events, the homeowners’ properties had suffered little to no flood damage, but the area had a long history of flooding. The homeowners claimed that the flooding of their homes was caused by the County’s approval of upstream development, combined with a failure to implement a proposed flood control plan. In a narrow 5-4 decision, the court held that the homeowners offered no proof that the County was substantially certain its approval of development would result in the flooding of the homeowners’ particular lots. The homeowners contended that the Court’s prior holding in Gragg supported their case, because that decision recognized that the recurrence of flooding is probative on the issue of the intent. However, the Court rejected the homeowners’ reliance on Gragg. The Court reasoned that recurrence can be probative on the issue of intent, but the government’s knowledge must be determined as of the time it acted, not with the benefit of hindsight.

governmental function will result in damage to some unspecified parcel of land within its jurisdiction. This was fatal to the homeowners’ case, since they offered no proof that the County was substantially certain that the homeowners’ properties would flood if it approved the new developments. The Kerr Court also held that doing nothing more than allowing private parties to use their properties as they wish presented at best a highly attenuated basis for meeting the public-use element of a takings claim. The Court found there was no evidence that the County ever intended to use the homeowners’ properties to accomplish a specific floodcontrol public purpose. It is important to note that the issues ruled on in Kerr may not be settled Texas law. Changes in the structure of the Texas Supreme Court could have an impact on how the Court considers these types of takings cases in the future. After initially proclaiming a 5-4 victory for the homeowners, the Court ultimately granted rehearing and Justice Guzman switched her vote, providing the government a win by a narrow 5-4 margin. Justice Willett, who authored the Kerr opinion, was appointed to the United States Court of Appeals for the 5th Circuit. Chief Justice Hecht was also among the four dissenting votes and remains on the Texas Supreme Court. Although there is hope the Court would not change course from this recently established Kerr precedent that limited takings liability, a reversal by the Court could seriously impair Texas government entities’ ability to work on flooding issues due to fears of incurring takings liability.

Affirmative Conduct, Specificity, and Public use

The Kerr Court also analyzed the elements of Affirmative Conduct, Specificity, and Public Use. Reviewing prior case law, the Court found that takings claims must be based on some affirmative act of the government; mere nonfeasance cannot support a takings cause of action. Accordingly, the Court held the homeowners could not assert liability for a taking of their properties based on the County’s failure to complete the proposed flood control plan. Instead, the only “affirmative conduct” performed by the County was the alleged approval of upstream private development. On the element of Specificity, the Court held that to be liable the government must know a specif ic act is causing identif iable harm or know that specif ic property damage is substantially certain to result from an authorized government action. The court said that the element of specificity was not met if the County only knew that someday, somewhere, its performance of a general

Damages

When the government takes private property without first paying for it, the owner may recover damages for inverse condemnation. Takings damages include injury resulting from construction of works and of subsequent maintenance and operation. Adequate compensation does not include profits generated by a business located on condemned land. Recurrence can affect a plaintiff ’s damages for a takings claim due to flooding. In Brazos 14

River Authority v. City of Graham, 354 S.W.2d 99 (Tex. 1962), the Brazos River Authority’s construction of a dam caused siltation in the Brazos River that eventually caused flooding in a sewage-disposal plant and a water-treatment plant that the City of Graham owned. The evidence established that the dam’s construction subjected the sewage-disposal plant to repeated flooding that rendered its operations impossible. The Texas Supreme Court held that the Brazos River Authority had taken the property. The Court ruled that compensation was to be based upon the difference in the plant’s value before and after the dam’s construction and operation. On the other hand, the water-treatment plant had only flooded once, even though it was possible that it could flood more times in the future as siltation increased. The Texas Supreme Court held that the City of Graham was not entitled to compensation for the diminished value of the plant; the city was only legally entitled for injuries that resulted from the specific flood.

of property that entitled the Commission to compensation. The manual had set seasonally varying rates for the release of water from the Clearwater Dam, which was located upstream of the Commission’s wildlife management area. Periodically, the Corps had authorized deviations from the manual that extended flooding into the area’s peak timber growing season at the request of local farmers. This flooding benefited the farmers, but after some testing, the Corps ceased its temporary deviations. The Commission alleged that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The United States Supreme Court held that recurrent flooding, even if of finite duration, is not categorically exempt from takings clause liability. This dismissal by the Supreme Court of a bright line exemption from takings liability for only temporary flooding could result in an increase in claims being filed against the federal government for actions taking during Hurricane Harvey. Since temporary flooding is not an automatic bar for these potential suits, attorneys for flooding victims may view success with these types of takings claims as being more likely post-Arkansas Game.

Federal Takings Claims

The Federal takings clause is very similar to the takings provision in the Texas Constitution. The Fifth Amendment to the United States Constitution states, “[n]or shall private property be taken for public use, without just compensation.” Texas applies a similar standard as federal courts in determining whether the government’s actions have taken property affected by flooding. The main difference, historically, was that federal courts seemed to require more evidence of permanent or inevitable recurring floods to establish a constitutional takings claim. However, in Arkansas Game, the United States Supreme Court arguably lessoned the standard for federal takings claims by holding that the government was required to pay compensation for a temporary taking of property caused by flooding. In Arkansas Game, the Arkansas Game and Fish Commission sued the United States alleging that temporary deviations from the U.S. Army Corps of Engineers adopted Water Control Manual constituted a taking

Conclusion

As the jurisprudence associated with takings claims continues to evolve at the state and federal level, it will be interesting to analyze how courts strike the balance between government entities’ need to operate without threat of open-ended liability and compensation for property owners whose property is being damaged or taken by government actions for the public good. The recent influx of these types of takings lawsuits in the wake of Hurricane Harvey could serve to further clarify exactly what sort of government conduct is and is not a taking of private property with respect to flooding. In any case, this sort of conflict between the government, property owners, and mother nature is sure to continue into the future. 15

San Antonio’s Newest Downtown Linear Park is Flowing with Purpose By Suzanne Scott, San Antonio River Authority

San Pedro Creek has been a place of natural beauty and human occupation for millennia. Bexar County and the City of San Antonio originated on the banks of San Pedro Creek with the founding of Mission San Antonio de Valero on May 5, 1718. Three-hundred years later, San Pedro Creek prepares to celebrate a milestone anniversary with a new look – a restored natural creek habitat and world-class linear park that is flowing to the future with a renewed purpose. The new chapter and vision for San Pedro Creek was spurred by a partnership between Bexar County and the San Antonio River Authority (SARA), in coordination with the City of San Antonio. Together, these entities are working to restore San Pedro Creek’s natural environment and creating a worldclass linear park – with a purpose that goes well beyond just being beautiful and enjoyable. It combines public art, architectural design, local craft, and historic preservation with engineering, ecosystem restoration, and native landscaping. It focuses on the creek’s natural beauty, the rich and colorful story of its own history, the cultural identity and traditions of the community around it, while ensuring protection for a growing urban downtown. The highly-anticipated San Pedro Creek Improvements Project officially broke ground in September 2016. With construction currently underway, the first phase and segment of the project will officially open on Bexar County’s 300th Anniversary, introducing the community to the beginning of the San Pedro Creek Culture Park. “The San Pedro Creek Culture Park will help

our community reclaim connections to heritage and water,” said Suzanne Scott, SARA general manager. “Public art and design elements combine to tell a rich story of the local culture and heritage of the creek, while key engineering and landscaping features mitigate flood risk and improve water quality.” The San Pedro Creek Improvements Project spans 2.2 miles through downtown, beginning at IH-35 at the flood tunnel inlet at Santa Rosa Street and ending at the confluence of the Alazán and Apache Creeks at IH-35 to the south. The project encompasses a total of four phases, with multiple segments in each phase. The first segment, to open on May 5, 2018 spans four blocks from the tunnel inlet, at IH35 and North Santa Rosa St., to Houston St. In total, the project will add more than 60,000 linear feet of new walls, replace eight street bridges and all associated utilities while adding four miles of walking trails and 11 acres of landscaping. Additionally, the project will deepen and widen the existing channel, removing 30 acres from the 100-year flood plain within the San Pedro Creek banks. “This is primarily a flood control project with a myriad of additional benefits,” said Kerry Averyt, SARA watershed engineer. “Containing the 100-year flood plain within the banks of San Pedro Creek helps us to significantly mitigate flood risk throughout downtown San Antonio and better equips us to handle major weather events like we saw throughout the state and the country this past year.” The living and breathing park will exemplify beauty with a purpose through improving water quality in a highly urbanized segment

Work begins on one of the many cultural heritage murals.

of the downtown watershed through the use of low-impact development features, including in the initial four block segment alone 5,824 aquatic plants and 133 shade trees. The project incorporates bioswales, specially landscaped features that soak up and filter stormwater runoff from hard surfaces such as roofs, pavement, and parking lots. A bioswale is constructed with quick-draining soil and drainage layers to filter and clean stormwater and make it healthy and usable for the native plants and wildlife along the creek. The project also features storm water interceptors, which are specialized mechanical devices that capture floating trash at stormwater inlets before it reaches the creek, helping to ensure the sustainability of the biotic habitat. The project design allows for water to be in the creek at all times, although the flow and level may shift due to weather. The transformation effort doesn’t end there, the San Pedro Creek Culture Park will also invite the people of San Antonio to reconnect

“The San Pedro Creek Culture Park will help our community reclaim connections to heritage and water.” Suzanne Scott, SARA general manager

Plaza at tunnel inlet.

with a place of great historical and cultural significance, celebrating and expressing the culture, history and natural qualities of Bexar County through a series of temporary and permanent artworks, artistic treatments, interpretive signage, and performances. Several permanent artworks have been commissioned for phase 1, segment 1 of the San Pedro Creek Culture Park. Four San Antonio-based artists – Adriana Garcia, Katie Pell, Alex Rubio and Joe Lopez – each created murals based on four distinct themes that commemorate the rich and interweaving cultures that define San Antonio and Bexar County. Their work will be translated into ceramic tile through a digital transfer process to ensure durability and longevity. “The San Pedro Creek Culture Park will be a hub for public art,” said Scott. “Public art plays a vital role in enhancing quality of life and enriching local amenities. We’re especially proud that these projects are all being produced, fabricated and installed by San Antonio artists and companies.” The completed first phase and segment will be officially unveiled in celebration of Bexar County’s 300th Anniversary on May 5, 2018. The grand opening event is open to the public and will incorporate family-friendly fun lining the banks of the San Pedro Creek Culture Park, including food trucks, live music, children’s activities, historical presentations and more. “Community involvement played a key role in the planning, design and construction of the San Pedro Creek Culture Park,” said Scott. “We’re excited to be able to open the first phase of the project with a city-wide celebration.” Once completed, the creation of the San Pedro Creek Culture Park is expected to spur a $1.5 billion economic impact by creating 2,100 new housing units, 1,428 new downtown employees, 7,300 new downtown residents, a 150 percent increase in new property value and $227 million in ad valorem tax revenues. For more information about the San Pedro Creek Improvements Project and Culture Park, please visit SPCculturepark.com.

A look at the project from Travis South.

Suzanne Scott was appointed General Manager of the San Antonio River Authority (SARA) in September 2007. Scott is responsible to an elected Board of Directors serving a four-county district, and directs SARA’s programs and projects and manages the agency’s annual budget.

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TWCA Hosts Strategic Planning Retreat

Once our purpose was better articulated, the group discussed TWCA’s audience and who we represent as a prelude to deciding the organization’s missions. When our audiences and stakeholders are combined, it highlights This January, 30 members the breadth of TWCA’s circle of influence of the TWCA Board of and where we invest effort. Identifying and Directors met to develop a understanding the diversity within TWCA membership (municipal suppliers, drainage strategic plan for the Board’s districts, navigation interests, professional consideration. Though service providers, water supply users, regulatory strategic planning is common agencies, environmental water interests, agricultural providers, industrial providers, to all organizations, it should groundwater managers) made it clear that always be tailored to each priorities need to be identified. organization’s needs. TWCA has become a trusted resource for Texas water policy by advocating for priority water policies, educating TWCA members, and building consensus on important water issues. In order to prioritize how this is accomplished, TWCA recognized that a plan is needed the group conducted a SWOT (Strengths, for four primary reasons: 1) Articulate why Weaknesses, Opportunities, Threats) analysis TWCA exists(the organization’s purpose), 2) (next page). Determine where we should invest in order to These goals are fairly broad. It was not the accomplish that purpose, 3) Prioritize those intent of this first strategic plan to implement investments of time and money, and 4) Align specific plans of action or tactics to achieve the our membership and effectively communicate goals. So where do we go from here? Once the with our audiences and stakeholders. The goal results have been compiled and condensed, the of strategic planning is to define a path towards TWCA Board of Directors will consider adopting accomplishing the right goals, a path that the recommendations as the association’s aligns and correctly defines the direction of all strategic plan. TWCA staff will then ensure that TWCA activities. That alignment is needed at all our activities are aligned with the association’s levels of TWCA, from the most involved board vision, mission and goals and begin the process member to new members and staff, to make of identifying specific strategies/tactics worth our investments effective and maintain our implementing over the next five years. position as a trusted resource for Texas water Plans can be set aside and forgotten, but the policy. Strategic planning will also help ensure effort is never wasted because it shapes an the longevity of this premier organization. organization’s future and generates momentum When highly engaged and invested members in the right direction. David Maister wrote in move on to new ventures, other members need Strategy and the Fat Smoker that “The necessary to step into their roles; a clear plan for the outcome of strategic planning is not analytical future can ensure they are ready and willing to insight but resolve.” Dwight D. Eisenhower said, do so. “In preparing for battle I have always found that The core of all strategic planning must be an plans are useless, but planning is indispensable.” accurate understanding of why we exist, how TWCA, and its members, and President Booth we act, and what we do. The team therefore should be applauded for thinking strategically began by answering a wide open question, “Why and investing in planning. It will pay dividends does TWCA exist?” Answers included advocacy, for years to come. education, policy development, networking, 20 and more. By Dan Buhman, Tarrant Regional Water District

Purpose:

Vision: Mission: Goals:

2 Players: TWCA works with many stakeholder groups. The strategic planning participants discussed how TWCA interacts with each group.

What you want to achieve Why we exist A broad but measurable desired outcome. They deﬁne levels of service the organization will achieve.

State Leg.

Strategies: The approach to achieving a given Tactics:

goal.

Public

Individual tools and actions that are used to accomplish strategies. These can be as signed a dollar value and ultimately compromise the organization’s annual budget.

State Agencies

Process:

SWOT Analysis

TGWA

TWCA Universe

Risk Mgement Fund

• TWCA has a strong reputation and relationships with our audience (e.g. state legislature). • Our members are thought leaders in Texas and national water policy. • Our members are heavily invested and active in TWCA and Texas water policy. • There are opportunities to partner with other state and national advocacy groups. • TWCA could increase membership outreach and strengthen member retention and recruitment efforts. • The Association must maintain financial health while striving to fulfill all of the increasing demands placed on it by the membership and stakeholders because of its success. • A strategy is needed to address the need for influencing and developing federal water policy. The strategic planning group recognized that articulating our purpose and missions is important, but that specific goals were needed to generate movement towards accomplishing those missions without making poor investments of time and money. Though dozens of goals were proposed, the group was able to set priorities that include ideas like determining the most effective way to accomplish federal outreach initiatives, expanding our members’ knowledge of TWCA’s organizational structure and purpose, and developing policy solutions with TWCA members, other organizations, and decision makers.

Texas Irrig. Council

Federal TWCA Members & Board

Product:

TWCA Vision: To be a trusted resource promoting sound water policy for Texas. TWCA Mission: Advocate priority water policies to state and federal decision makers. Build consensus. Educate members. TWCA Goals to Accomplish Mission: Goals were developed for every mission. To view the full summary, visit www.twca.org.

Next Step:

Identify speciﬁc strategies/tactics for implementation

Accounting Plans: Regulators’ Needs and Water Portfolio Management Opportunities By Nathan Vassar Lloyd Gosselink Rochelle & Townsend, P.C.

Over the last decade or more in the water rights arena, accounting plans have become among the most important features of water rights as administered by the Texas Commission on Environmental Quality (“TCEQ”), as the plans govern the daily implementation of diversions of water in light of a variety of factors. As explored throughout this ongoing water supply planning series, a well-rounded water supply strategy includes both legal and technical components. As such, the development of a carefully crafted accounting plan should include the consideration of a variety of regulatory needs, alongside a number of strategic considerations, in order to frame an accounting protocol that satisfies TCEQ’s requirements while also meeting the water supplier’s (and its customers’) needs. So far, our series has focused on tools and strategies that can help maximize the use of water supplies to meet the needs of providers and their customers. Having the right accounting plan in place, however, is central to many planning tools and can support a number of strategies if carefully crafted and maintained. The development of an accounting plan is more than a “check the box” exercise for water rights applications. Although not required for every water right application, accounting plans are important in order to demonstrate how a water right operates in conjunction with other rights, stream flow conditions, storage and related impacts, reuse of water (when applicable), and carriage losses, among

other factors. Significantly, environmental flow conditions, when applicable and required, must be adequately addressed before TCEQ can approve a plan. Beyond these fundamental requirements, however, attention to other needs can differentiate an accounting plan that merely satisfies regulatory requirements from one that is an asset to water rights portfolio management. Consideration should also be given to the needs of downstream diverters, existing accounting plans, and the source of the new supply, particularly if water reuse is involved. Additionally, when a reuse application is sourced in mixed groundwater and surface water-based supplies, the right accounting plan should also include details identifying the division between such sources, among other factors. No accounting plan should be viewed in isolation, as a supplier’s broader water rights should be examined whenever a new authorization is sought. TCEQ rules allow for management of water rights in a manner that may “free up” supplies with more junior priority dates for use prior to the use of more senior, drought-resistant rights. For example, Chapter 297 of the Texas Administrative Code provides that junior rights may be accounted for first each year, so long as a water rights holder uses its most senior dates first, at least for rights having multiple priority dates. The preparation of water use reports, due each year by March 1, also presents an opportunity to consider whether the ongoing management and use of a portfolio of water rights most 22

efficiently accounts for water in a manner that taps into the most valuable, most senior, rights at the best time. Discussions that start with accounting should also include reliability factors – as to both the water right in question as well as other supplies. The delta between firm and paper yields of certain supplies is often significant. As a result, a supplier’s accounting plans, in the aggregate, can greatly inform resource management strategies, influenced by streamflow trends, sedimentation, seasonal demands, and discharges. Further, particularly when amending a water right, there may be opportunities to amend and revise accounting protocols to reflect on-the-ground developments that have occurred since the base right was issued. The right team can help tailor many of the above considerations to a water supplier’s particular needs and circumstances. As analyzed in our earlier article about the development of such a team, a water supplier is best served when its projects and water rights management are scrutinized and supported by team members who are familiar with the evolving landscape of accounting practices and regulatory needs. Experienced technical staff can provide cost-effective analysis of environmental flow conditions in light of

TCEQ’s regulations. Decision points related to the development of accounting plans require a team with the right background and capabilities in order to help a supplier extend supplies and get the most value out of the accounting plan tool. Our next article will build upon the accounting framework by identifying how certain water supply needs can be impacted by particular conservation efforts. Many Texas suppliers have implemented conservation measures that stretch existing water supplies and allow flexibility for addressing other needs and growing demands in their service areas. That article will highlight conservation best management practices in the context of water supply development and other traditional methods of growing and maintaining water supplies. Nathan Vassar is an attorney in the ﬁrm’s Water Practice Group. Nathan’s practice focuses on representing clients in regulatory compliance, water resources development and water quality matters. He regularly appears before state and federal administrative agencies. nvassar@lglawﬁrm.com

Update on 85th Session Interim Charges By Howard Slobodin, Trinity River Authority

Interim Charges In late 2017, the Speaker and Lieutenant Governor released their 85th Session interim charges. Hurricane Harvey played a central role with regard to charge subject matter, with the release only shortly after the storm struck Southeast and East Texas. Many of the Speaker’s more than 230 interim charges reflect his statement that “Hurricane Harvey will impact just about every major issue in the next legislative session, and the House should be fully prepared for that moment.” On the Senate side, the Lieutenant Governor issued three sets of charges, the first set of 25 solely related to Hurricane Harvey. In his own words, the Lieutenant Governor’s charges addressed both “a wide range of issues related to the immediate response to the storm,” and his goal that Texas “become a national model in handling every aspect of disaster.” Of course, both the Speaker and Lieutenant Governor also charged their respective committees to address many other issues of interest to TWCA membership. Those issues on the House side generally address groundwater policy and surface water availability. The Senate has also been charged to study streamlining of both surface water and groundwater permitting. It also received a renewed call to study state oversight of river authorities and groundwater conservation districts.

2) the collection and storage of flood flows for future supply; and, 3) the availability and need for science and data related to flood risk and response. Beyond Hurricane Harvey, the Committee has additionally been charged to evaluate groundwater policy, and specifically: 1) aquiferwide management and permitting practices; 2) recent caselaw developments with regard to groundwater ownership and regulation; 3) improvements to the groundwater permitting process, including those contemplated by last session’s House Bill 31 (Larson, did not pass); and, 4) brackish groundwater production zones. Additionally, House Natural Resources will consider water markets and associated opportunities and challenges, the value of a broad-scale public awareness campaign regarding water issues, and will revisit the issue of updates to TCEQ’s water availability models for surface water in Texas. Other House Charges of Interest The Speaker charged the House Committee on County Affairs to evaluate county ordinance-making and enforcement authority to deal with flood risk in unincorporated rural and suburban areas. Additionally, that Committee will also examine whether counties have adequate resources and authority to prevent development in unincorporated areas that would be susceptible to flooding. The House Committee on Government Transparency and Operation has been charged to review Texas’ open meeting laws and related government decision-making policies that may affect emergency response. Particularly, the Committee will determine if open meetings and other requirements prevented the efficient delivery of assistance during Hurricane Harvey, and if so, whether changes are warranted. The perennial issue of eminent domain reform will once again be revisited by the House Committee on Land and Resource Management. The Speaker charged that committee to examine Texas’ eminent

House Committee on Natural Resources In connection with Hurricane Harvey, the Speaker charged House Natural Resources to study: 1) the role of regional entities in flood control project development; 2) flood mitigation strategies and funding; and, 3) public entity flood response, with an emphasis on dam operations and related communications with emergency management officials and the public. In addition, House Natural Resources has been charged to examine: 1) the development of TWDB’s initial State Flood Plan; 24

domain statutes to again study the issue of compensation to landowners. Readers will recall that several bills last session addressed this issue, including a proposal to impose attorneys’ fees against condemnors under certain circumstances. Similar legislation is likely to be seen this coming session. Finally, the House Committee on Special Purpose Districts has been charged to investigate issues related to Harvey and emergency operations, financing, and district dissolution. That Committee’s jurisdiction includes irrigation districts, water improvement districts, water control and improvement districts, river authorities and navigation districts. Specifically, the Committee will examine: 1) the impact of Hurricane Harvey on residential communities within special purpose districts and districts’ responses; 2) state approval and oversight of water district bonds and bond issuances; and, 3) the feasibility and means of dissolving special purpose districts. Senate Agriculture, Water and Rural Aﬀ airs As described in his keynote speech at the 74th Annual Convention, Chairman Perry’s Agriculture, Water and Rural Aﬀairs Committee will study state oversight of groundwater conservation districts and river authorities, and also evaluate streamlining the surface water permitting process. Management of groundwater and the related regulatory framework is also on the Committee’s interim agenda. The Committee also drew charges specifically related to Hurricane Harvey, concerning: 1) the accomplishment of projects in the State Water Plan that confer flood mitigation; 2) a third flood-control reservoir to complement Addicks and Barker and improvements to those two existing facilities; 3) the status of reservoir projects generally and the operations and public notice related to those operations; and, 4) data-sharing standards for rainfall and stream gages and a possible statewide real-time flood warning 25

system. Other Senate Charges of Interest Consistent with the charges to the House Committee on Special Purpose Districts, the Lieutenant Governor instructed the Senate Intergovernmental Relations Committee to report on state review of tax exempt bonds issued by special purpose districts used to finance water and sewer infrastructure. Conclusion Hurricane Harvey played a dominant role in the development of both House and Senate 85th Session interim charges, and interim studies will address flood management and mitigation. However, both surface water and groundwater policy and permitting are also under review, and bond financing and general state oversight over many TWCA member districts is also up for additional study. As with every interim, active engagement by membership in interim activities of interest is warranted.

Howard Slobodin is General Counsel and Secretary, Board of Directors, of the Trinity River Authority of Texas. He joined the Trinity River Authority in April 2008. Prior to joining TRA, Howard practiced environmental and water law in both the public and private sectors. slobodinh@trinityra.org

A Q&A with the new BRA General Manager/CEO, David Collinsworth Q: Tell me a little bit about yourself.

Q: What was your dream job as a kid?

A: I am originally from Louisiana, but we moved around quite a bit when I was a kid. While I attended numerous schools in various states, I graduated from high school in Hubbard, Texas. I attended college at Southwest Texas State University (Texas State) where I received a Bachelor’s of Science in Aquatic Biology. My days in San Marcos included time spent fulfilling an internship and summer job with Texas Parks and Wildlife at the A. E. Wood Fish Hatchery. From there, I joined the Brazos River Authority, spending my first few years managing water quality projects and teaching water quality initiatives. After almost 24 years with the BRA, I have worked in or managed almost all aspects of our organization, including business development, customer relations, and basin management. Needless to say, I am very excited about my new role as GM/CEO. My wife is a dedicated and exceptional elementary school teacher, and we are blessed with two extremely impressive young ladies and could not be more proud. My oldest daughter is a few months away from graduation at The University of Texas, at Austin, and is engaged to be married to a U.S. Marine currently stationed in Hawaii. Our youngest daughter is a sophomore in high school and aspires to attend medical school. Her passion is helping people.

A: Well, my aspirations were pretty down to earth and realistic. All I wanted was to play professional basketball, professional golf, and professional baseball, while also working as a fishing guide. As a kid, we didn’t have the Food Network, or cable for that matter, or I would have dreamed of being the host of Diners, Drive-Ins and Dives. Q: How did you get involved with BRA? A: I joined the BRA fresh out of college. I was looking for experience in the field of water quality project management. The BRA was looking to hire someone to teach water quality monitoring to volunteer citizens and to assist cities looking to collect water quality data. My emphasis became managing water quality grant projects and focusing on non-point source pollution reduction through best management practices. It was a good fit! Q: How do you explain your job to people who don’t work in water? A: Interestingly, the conversation about what I do in the water industry occurs pretty frequently. It usually starts with, “Where does your drinking water come from?” Once you begin a dialogue about the individual’s water sources, you can relate to them the roles and responsibilities of a river authority. 26

I always jump at the opportunity to help people understand the intended purposes of regional water supplies, and to teach them that there are a number of entities and processes involved, and a lot happens before that water comes out of their tap.

continues to grow, and municipalities, industry and agricultural interests continue to need water supplies that are vital to their respective success. Competition for the resource is at an all-time high, and never-ending. In general, folks just don’t “get it” when it comes to the management of water resources in Texas. Water law is complicated, even for experts, and there is a fundamental misunderstanding of the purpose(s) of reservoirs state-wide. So it’s the overall lack of understanding, and appreciation of, these complex issues that makes managing water supplies most challenging. I think part of our job is to do everything we can to educate people on what it is we do and why we do it, and that’s a big task.

Q: Did you always think you’d work in the water supply industry? A: Yes, I absolutely knew that I would have a career in the water industry. I have always had a deep passion to be “on the water.” It was the driving force behind my education choices at Southwest Texas State University and the career path I chose to take. Early on, I thought I would find myself in aquaculture, managing fisheries. As career opportunities developed with the BRA, my passion grew to develop, maintain, and protect the water resources that make up the truly amazing Brazos River system.

Q: What are some up-and-coming technologies that river authorities are using? A: Technologies are providing near-real time hydrologic and meteorological data for reservoir management. Advancements in radar, gage, remote sensing, and communication technology over the past few years have been incredible, helping us do our job better. Aerial photography and satellite imagery - we’re just the click of a mouse away from viewing almost anything, such as flood inundation areas or a potential reservoir site.

Q: What do you hope to accomplish as the new BRA GM? A: The State Water Plan identifies the numerous water projects that are needed to help ensure the high quality of life that we enjoy as Texans. My responsibility is to drive an organization with an expert staff to continue in the development and management of these critical water initiatives. We will also focus on a long-term capital improvement initiative to protect our vital reservoirs. Our newest dam, Sterling C. Robertson Dam at Lake Limestone, is approaching 40 years of age. Progress…we will continue to make progress.

Q: Do you know Chip & Joanna Gaines? A: No, I don’t know Chip and Joanna; but, I see them around town. Maybe I’ll build up the confidence to ask them to decorate my new office. In all seriousness, they have shown the country that Waco is a wonderful place to live.

Q: What are some challenges of managing a river authority? A: Everybody has a different level of priority for water- surface water that belongs to the State of Texas. Federal agencies continue to show a desire to manage and control state water rights, jeopardizing long-term water supplies. Recreational and business interests continue to want water to be left in reservoirs, allowing for recreational opportunities and economic growth in spite of a reservoir’s intended purpose to supply water. Texas

Q: Any additional comments? A: Personally, I am very excited about this opportunity. The BRA looks forward to addressing water challenges and meeting the state’s water needs with our Texas Water Conservation Association colleagues.

2018 ANNUAL CONVENTION RECAP

By Adeline Fox, TWCA

The TWCA 74th Annual Convention attracted more than 400 attendees from March 7-9 at Hyatt Lost Pines Resort & Spa in Lost Pines. Despite the Lost Pines name, everyone was able to find their way to meeting rooms on day one. The morning included the TWCA Risk Management Fund board meeting, as well as meetings for the Federal Affairs, Membership & Services, and Policy committees. Environmental Protection Agency (EPA) Region 6 Administrator, Anne Idsal, kicked off the afternoon sessions where she discussed the vision EPA Administrator Scott Pruitt has for water infrastructure. A flood litigation panel with Jace Houston of San Jacinto River Authority and David Montagne of Sabine River Authority presented on the topic of flood litigation with Howard Slobodin of Trinity River Authority. The flood panel described the effects of Hurricane Harvey and the plans to prepare for future flooding events looking forward. Texas Water Development Board Member Peter Lake talked about the new TexasFlood.org site launched by TWDB. The site will utilize rainfall

and streamflow data to provide a user-friendly interface for the general public during flood events. Other afternoon topics discussed policy changes for water resource development, the Denton County greenbelt plan, and an update on listing endangered native mussels. The next morning was filled with panel meetings and elections. Visit the website or page 43 for the updated board member list. Morning presentations included a keynote address by Chairman Charles Perry who spoke about the 85th Interim Session and whatâ&#x20AC;&#x2122;s to come in the next session. Attendees also heard about the direct potable reuse project in El Paso, a TCEQ update, the paradox of groundwater availability, and how utility districts performed during Hurricane Harvey. Next, National Water Resource Associationâ&#x20AC;&#x2122;s Ian Lyle provided a keynote address during the luncheon that discussed federal policy issues. Following the lunch, Chief of Staff for Governor Abbott, Luis Saenz, spoke about Texas water issues and upcoming priorities for 28

the Governor’s office. Other topics covered included the Rio Grande treaty update, an investigation into how people value water, and opportunities and limitations of aquifer storage and recovery. One of the many highlights of the annual convention is the awards program, which honored 10 winners. Congratulations to all our award winners! The final day of the convention, the morning started out with a crisis communications panel that discussed how governmental entities handle communications with the general public during natural and other disasters. Next, the TWCA Risk Management Fund discussed how to create and enhance a workplace violence prevention plan. Other topics included groundwater management, a water infrastructure project in Kyrgyzstan, and an update on desalination projects in Texas. Thank you to everyone who attended, sponsored, and presented during our 74th Annual Convention!

2018 Annual Convention Award Winners • Leroy Goodson Leadership in Water Award Alan H. Plummer, Alan Plummer & Associates, Inc.

• President’s Awards

Jeff Walker, Texas Water Development Board Richard Hyde, Texas Commission on Environmental Quality *Carter Smith, Texas Parks & Wildlife Department Dan Buhman, Tarrant Regional Water District

• Honorary Lifetime Memberships Carole Baker, Texas Water Foundation Ricky Clifton, Gulf Coast Authority Harvey Everheart, Mesa UWCD Phil Ford, Brazos River Authority Paul Nelson, Lone Star GCD

• Dedication of Annual Convention Phil Ford, Brazos River Authority * Carter Smith was unable to attend, but will receive his award during the Mid-Year Conference

(L to R) Honorary lifetime member award winners Phil Ford, Alan Plummer, Ricky Clifton, Carole Baker, and J.L. Rose pose with Dean Robbins and Mike Booth following the dinner. Not pictured: Paul Nelson.

Photos from the Annual Convention

Environmental Protection Agency Region 6 Administrator Anne Idsal discusses the agency’s renewed vision and leadership.

Texas Water Development Board Chairman Peter Lake promotes the new Texasflood.org website.

Senate Agriculture, Water and Rural Affairs Chairman Charles Perry briefs the audience on interim charges relating to water.

National Water Resource Association Executive Vice President Ian Lyle discusses water priority issues at the federal level.

Texas Commission on Environmental Quality Deputy Director for the Office of Water L’Oreal Stepney provides agency updates.

Governor Greg Abbott’s Chief of Staff Luis Saenz previews the upcoming legislative session.

Brad Littrell with BioWest, Tiffany Morgan with Brazos River Authority and Glenn Clingenpeel with Trinity River Authority provide an update on the listing of native mussels as endangered species.

Jacob Moreno and Dan Hernandez with the TWCA Risk Management Fund “candidly pose” for a great photo!

Drew Talley chats with Dan Hernandez, Janina Flores and Greg Womack of the TWCA Risk Management Fund.

We had a full house in the meeting room!

(L to R) Trey Nesloney, Jordan Furnans and Wade Oliver catch up during one of the breaks.

Panelists Vanassa Joseph, Ann Galassi, Michelle Simpson and moderator Adeline Fox discussed the importance of having a crisis communications plan.

TWCA General Manager Dean Robbins and President Mike Booth award TCEQ Executive Director Richard Hyde and TWDB Executive Administrator Jeff Walker with Presidents Awards.

Tarrant Regional Water District Assistant General Manager Dan Buhman receives a Presidentâ&#x20AC;&#x2122;s Award.

Alan Plummer, founder of Alan Plummer & Associates, receives the Leroy Goodson in Water Award.

Mike Booth presents Phil Ford with the conference dedication award.

Mike Booth presents Paul Nelson with the honorary life member award.

Sparking Ideas One Collaboration at a Time: Groundwater Educational Outreach Collaborative By Stephanie Keith, Middle Trinity GCD Megan Haas, Brazos Valley GCD Megan Homeyer, Post Oak Savannah GCD

How it all began... The Groundwater Educational Outreach Collaborative began with a “mayday” call from three rookie district education coordinators, Megan Haas, Megan Homeyer, and Stephanie Keith. The three met earlier this fall at a water field day and soon realized that they shared some of the same struggles and questions. Conversations soon led to the idea that there could be a need for a support network for outreach educators, especially within the groundwater world. We needed an organized opportunity to collaborate and discuss ideas to improve our educational programs. Thus, the idea for a Groundwater Educational Outreach Collaborative came to be. The trio set out to share the word about the new opportunity to groundwater district managers and fellow educators. The response has been filled with tremendous support and enthusiasm. Within a brief time, this group has found success in staying away from the formal meeting structure and really focusing on a topic-driven collaborative format. For each quarterly meeting, the agenda is developed from member topics of interest. To date, student and adult education has dominated collaborative discussions. Innovative ideas have been sparked and a new excitement has started to build for groundwater education. The first meeting was held in November 2017 with 15 educators in attendance from various groundwater districts, Texas Water

Development Board, AgriLife Extension Service, and Texas Farm Bureau. The collaborative has quickly gained popularity among Texas groundwater districts since its introduction in January at Texas Alliance of Groundwater Districts’ regular business meeting. The group has now more than doubled in size! So, what is in the future? The Groundwater Educational Outreach Collaborative is working toward building a categorized resource database. Our main focus will be materials for groundwater outreach educators, but as an added attribute, we would also like to include specific resources for regular educational 32

professionals. Another future goal that has been discussed is how we can further our reach across our vast state of Texas. The initial idea was to establish an area representative to aid in logistical planning for the group. The group would like to extend the collaborative network beyond central parts of Texas to include as many districts as possible. We all know that education is a key component in conserving our groundwater resources.

For updates and meeting information, check out our group on Facebook - Groundwater Educational Outreach Collaborative. If you would like to contact us, send us an email! collaboratewater@gmail.com

Let’s talk about the most recent collaborative! The last collaborative was held April 17th at Middle Trinity Groundwater Conservation District. The agenda focus was “Planning a Successful Water Field Day”. Attendees had the opportunity to show off their best practices for water field day events, as well as, experience other groundwater educational activities. What a fun way to celebrate the warmer weather and sunshine! The Groundwater Educational Outreach Collaborative has already proven to be a beneficial part of building stronger educational programs and events. The group hopes to continue working toward growing stronger network connections to provide diverse programs benefiting various audiences.

Stephanie Keith is the Education & Public Relations Coordinator for Middle Trinity Groundwater Conservation District in Stephenville. mtgcd4@centurylink.net

Megan Haas is the Education & Conservation Outreach Coordinator for Brazos Valley Groundwater Conservation District in Hearne.

Megan Homeyer is the Educational Coordinator for Post Oak Savannah Groundwater Conservation District in Milano.

The group had a collaboration meeting with the TWDB where they brainstormed and shared ideas. Megan Haas explains how to make a mini aquifer.

Bobby Bazan with Post Oak Savannah GCD tries his hand at building a mini aquifer.

Flu Season Hit Hard this Winter and Won’t Go Away By Richard Wigzell, TWCA Risk Management Fund

In late Fall 2017, the Centers for Disease Control and Prevention was providing information about what to do in the event of a nuclear attack. They were responding to the tensions between the United States and North Korea. However, a more direct and imminent threat changed their focus to the current flu outbreak that is the result of a more virulent strain of virus than has been seen in recent years. The current strain is H3N2, a strain of the virus that has caused bad outbreaks in previous years. So far this year the flu has been reported in all 50 states and has only recently peaked (as of February 23, 2018). The first illustration shows flu prevalence in all Texas counties as of March 2, 2018:

The latest reports indicate that this strain of flu is quite serious for very young children and “baby boomers.” A recent CDC report shows that the hospitalization rate for people over 65 is 322.7/100,000 and that the H3N2 strain and H1N1 are both involved in this group. The CDC also reported February 18, 2018 that the overall hospitalization rate for all populations was now 74.5 per 100,000 and that hospitalizations are “even higher than the 2014 – 2015 season” when 710,000 hospitalizations were reported. The Texas Department of State Health Services also provides data about this season’s mortality numbers and rates per 100,000 population through the end of February. According to the data, the most vulnerable age group included those 65 and older. Overall, 5230 deaths were reported for all ages. Although recent reports indicate that the 2018 Flu season is starting to wind down, it is not over and the death numbers are still above the “Epidemic Threshold”. Flu vaccines for the 2019 season are already being developed based

County Inﬂuenza Activity Level

Texas Department of State Health Services for the week ending March 2, 2018.

No information/no reporters No activity Influenza-like illness only (no lab confirmation) Rapid test positive flu Flu A (confirmed by culture or PCR) Flu B (confirmed by culture or PCR) Flu A & B (confirmed by culture or PCR)

Centers for Disease Control and Prevention, published in Business Insider, January 12, 2018.

on the observations of disease strains that are now emerging. The flu virus can develop rapidly and leave the medical system without an optimally effective vaccine as happened this year. Latest incidence figures indicate that this year’s vaccine was only about 25 percent effective with almost no effect in the 9 years old to 17 age bracket and the over 50 group. The World Health Organization’s current vaccine recommendation for the 2018 – 2019 season includes four strains of flu viruses with a change to the H3N2 type that was predominant in the 2017 – 2018 flu season.

Take precautions and stay healthy. Anything you learn this year will also be applicable when the next flu season rolls around. Whatever happens next year, we know there will be a flu season and it will have a strong impact on personal health and the productivity of water districts and authorities. Additional information about this year’s flu outbreak is available at the Centers for Disease Control and Prevention at www.cdc.gov and from the Texas Department of State Health Services at www. dshs.texas.gov.

Recommendations to slow the spread of the disease include:

Sources: Washington Times, January 29, 2018, Centers for Disease Control and Prevention website, Texas Department of State Health Services website, Avian Flu Diary, “WHO Recommended Composition of 2018-2019 Northern Hemisphere Flu Vaccine,” February 22, 2018.

• Wash hands frequently, • Cover coughs and sneezes so the highly contagious aerosols are contained, • Limit physical contact with others, • Get vaccinated (25 percent protection is better than nothing.) • An early dose of Tamiﬂu has been effective this year in reducing symptoms and limiting the period of illness and • If you are sick, stay home. • Don’t go to work. Your co-workers and employer will thank you.

Bond-Validation Lawsuits: Expedited Litigation to Get Projects Moving By James Parker, Lloyd Gosselink Rochelle & Townsend, P.C. Like other public entities in Texas, TWCA members regularly issue public securities—i.e., bonds—to finance their projects. Bonds are often a great way to finance such projects because they offer a very low interest rate and are repayable over a long period. Such projects often operate on time-sensitive schedules, so the financing also must be completed on a tight schedule. Recognizing the needs of public entities to finalize and validate their bonds on an expedited basis, the Legislature has created a mechanism to do just that through expedited litigation. This type of litigation can be a tool to address a wide range of challenges to all aspects of public securities. For example, legal challenges to a tax imposed to repay the bonds, to a contract that provides the revenues to repay the bonds, or to the expenditure of money raised by issuance of the bonds can all be consolidated into a single lawsuit. Most importantly for the bond issuer, the lawsuit is conducted on an expedited basis, often resulting in a final judgment within three to six months.

to market its bonds. Even if it is able to find willing buyers, it will be at a significantly higher interest rate, dramatically increasing the cost of the project, which can result in higher costs for stakeholders. If that happens, the issuer is not without recourse. It may validate its public securities in court. The mechanism for obtaining that judgment is set forth in Chapter 1205 of the Texas Government Code, also known as the “Expedited Declaratory Judgments Act,” or “EDJA.” An EDJA suit is unique in that it is both an in-rem action involving the public securities and a class action as to a broad range of people, including all residents, taxpayers, and property owners within the bond issuer’s boundaries. An EDJA suit is a public proceeding, specifically providing for notice of the suit to the public, with the trial court ordering that a notice generally stating the relief requested and notifying all interested parties of the trial date be published in newspapers in Austin and the county of the issuer’s principal office in two consecutive weeks. Importantly, a final judgment puts the matter to rest against all who might challenge it.

The conventional bond-validation process requires submission to the Attorney General.

The EDJA may be used to promptly adjudicate other ancillary matters.

Most public securities are validated by submission of a “bond transcript” to the Attorney General pursuant to Chapter 1202 of the Texas Government Code. If the Attorney General approves of the public securities based on the submitted documents, they are deemed legal, valid, and incontestable once registered with the Comptroller of Public Accounts.

In addition to the legality and validity of the public securities themselves, other ancillary issues may be litigated in an EDJA action. Among those issues are: • the legality of a tax, fee, or assessment imposed to repay the bonds, • the validity of a contract that provides the revenues to repay the bonds, and • the legality of the expenditure of money raised by issuance of the bonds.

But . . . there is an alternative: bondvalidation litigation under Chapter 1205 (i.e., the EDJA).

Without validation, it is difficult for an issuer 36

Other lawsuits can be consolidated in the EDJA case.

One aspect of the EDJA that makes it such an efficient process is the fact that the court may consolidate any other lawsuit pending in any other court involving the same issues. The court can also enjoin the commencement of any unfiled lawsuit regarding those issues. So if an issuer faces litigation concerning matters ancillary to its public securities, the EDJA allows the court to move that controversy either to the county of the issuer’s principal office or to Travis County, and resolve all of the issues in one proceeding. And because of the expedited nature of an EDJA proceeding, the matter can proceed to judgment faster than it would otherwise. A key characteristic of an EDJA action is its speed.

A bond issuer can therefore conceivably obtain a judgment validating its bonds within three weeks of ﬁling an EDJA petition. It is more likely that the court will briefly continue the trial to allow for briefing and limited discovery, if any persons appear to contest or question the requested relief. And if appealed, the court of appeals is obligated to give the case priority over all other cases, except those involving habeas corpus. The Attorney General is a necessary party, and has an important role to play.

While the public is notiﬁed of the EDJA action by multiple publications of a statutorilyrequired notice in the newspaper, the Attorney General must receive specific notice through service of process. The Attorney General is a mandatory party, and will offer the court its opinion as to the state of the law relating to the bond issuance and the underlying legal questions. It is our experience that the trial judge will rely heavily on the Attorney General’s opinion in reaching a decision, especially in cases filed outside of Travis County. For this reason, some of the most important work the bond issuer will do is in working closely with the Attorney General to reach a determination that the public securities are not unlawful. Counsel

experienced in dealing with the Attorney General’s Public Finance Litigation department is therefore critical to obtaining a favorable judgment. A judgment under the EDJA provides certainty by preventing all future challenges to the public securities.

If successful, the final judgment in an EDJA suit declares that the public securities are valid—a statement that can then be put on the face of public securities. Moreover, the judgment acts as a permanent injunction, preventing anyone from challenging the public securities and any of the other ancillary matters at issue in the EDJA suit. The litigation process thus provides important differences to the conventional bond-validation process through the Attorney General. First, litigation can validate not only the bonds themselves, but other matters (e.g., taxes, contracts, and expenditures) associated with those bonds. And second, successful litigation provides the security of a permanent injunction preventing those issues from ever being challenged again. With that judgment in hand, a public entity can go forward with issuing bonds. And buyers can purchase those bonds with the knowledge that the bonds can never be challenged. All of which allows the public entity to complete its projects on time and with the lowest possible financing cost, thus benefiting both the entity and its stakeholders.

James Parker is a principal in the Litigation and Appellate Practice Groups at Lloyd Gosselink Rochelle & Townsend, P.C. He received his J.D. at Southern Methodist University Dedman School of Law. jparker@lglawﬁrm.com

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SJRA Announces New Leadership Role in Regional Flood Management And Welcomes Chuck Gilman as Director By Ronda Trow, SJRA

On Thursday, March 15th, Governor Greg Abbott challenged the San Jacinto River Authority (SJRA) to identify how it could be part of a regional, flood management solution and how a funding mechanism could be developed to support that effort. Chuck Gilman will be the new regional In response to the Governor’s charge, the flood management director. Board of Directors and leadership team of the SJRA have decided to create a new flood management division and begin implementing the challenge of regional flood management, flood mitigation activities, a role that is outside “The Harris County Flood Control District the norm for river authorities in Texas. has been the only agency in our region with River authorities are authorized by the the power and funding to tackle flooding legislature to take on a long list of activities on a comprehensive, regional level, but it to meet the particular needs within their only covers Harris County. This has left a watershed, which may include flood tremendous gap in implementing real solutions. management activities. Since river authorities The last attempt to ﬁll this gap was in the midtypically do not have the power to levy taxes, 1980s when voters rejected an eﬀort to create such activities must be funded by contracts a Montgomery County Flood Control District. with customers. River authorities have not This time we hope to leverage federal funds and traditionally taken on flood management other partnerships to minimize any impact on responsibilities because of the practical local taxpayers; but if there is no will on the difficulties of contracting with the public at part of the public or our local, state, and federal large to fund those activities. By contrast, local partners to support and fund these activities, flood management agencies in Texas (such as then they won’t happen.” flood control districts), are typically tax-funded To take on this new leadership role, Charles and organized to protect the property and lives R. “Chuck” Gilman, Jr., P.E., is joining SJRA as of the citizens within their taxing jurisdiction. its new Director of Flood Management. Chuck SJRA’s leadership team is determined to identify has over 20 years of experience in the field of new funding strategies so that real solutions civil engineering and public administration can be developed and implemented. General and is highly-respected among his peers for his Manager, Jace Houston, commented, “I am very knowledge, leadership, and integrity. excited to announce this new undertaking. “We are extremely pleased to be adding With the support of the Governor’s office someone of Chuck’s caliber and experience to and funding partnerships with federal, state, our management team to help us address the and local entities, I believe together we can most pressing challenge of our region,” Jace implement regional solutions while minimizing noted. “Chuck will add immediate leadership the impact on local taxpayers.” and value.” Mr. Houston noted the history associated with Jason Stuebe, city manager for the City of 40

Humble, agreed with Houston’s assessment. “This is great news! I worked with Chuck throughout my career in College Station, and he is not only a phenomenal engineer and a great person for this job, but someone who I think will really understand the flooding issues facing our region and be able to help develop meaningful solutions.” Chuck comes to the Authority from the City of College Station where he served as the Deputy City Manager and was recently elevated to the role of Interim City Manager. During his time at the City, he also served as the Assistant Director of Water Services, Director of Capital Projects, and Director of Public Works. Over the last ten-plus years, Chuck has held positions of responsibility covering every aspect of municipal administration, including utilities, transportation, drainage, emergency planning and response, planning and zoning, and legislative and governmental affairs. Prior to his time at the City of College Station, Chuck served in the private sector as an engineering consultant, overseeing the design and construction of a variety of civil engineering projects. As Director of Flood Management for the Authority, Chuck will report to the General Manager and serve as an integral member of SJRA’s senior management team. Chuck will be responsible for developing and leading the Authority’s new flood management initiative. Chuck is a licensed Professional Engineer in the State of Texas and holds a Project Management Professional Certification from the Project Management Institute. He earned a Bachelor of Science in Civil Engineering from Texas A&M University. Governor Abbott expressed support for SJRA’s initiative in response to his challenge. “It has been a trying time for these communities as they work through the unprecedented destruction caused by Hurricane Harvey. We need all local, state, and federal partners to work together and create bold, creative solutions. I appreciate the SJRA’s willingness to be part of the solution, and I look forward to our

continued partnership in making Texas more resilient to future flood events.” The SJRA Board of Directors and staff look forward to taking on a leadership role and partnering with the HCFCD to deliver effective solutions and create real benefits for the region. For more information you can visit www.sjra.net or like SJRA on Facebook @SanJacintoRiverAuthority.

Ronda Trow currently serves as the Public Relations Manager at the San Jacinto River Authority. She directly supports the General Manager with planning and executing public relations programs for all four divisions.

How well do you know your TWCA staff? Where were you born?

DEAN Austin, Texas

STACEY Arlington, Texas

LISA Austin, Texas

ADELINE Fayetteville, Arkansas

BECKY Dallas, Texas

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