TWCA Confluence Newsletter July 2017

CONFLUENCE JULY 2017

Texas Water Conservation Association | twca.org

Mid-Year Conference: Beach Cleanup & Beyond

IN THIS ISSUE: • New logo adopted • Legislative recaps • TWDB’s stormgage technology • Greenbelt plan in Denton County • And more...

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TWCA Fall Conference October 18-20, 2017 The Wyndam San Antonio Riverwalk Hotel

We have a NEW logo!

Cover photo taken by Adeline Fox. Caption: Lori Traweek, GCA, picked up the most trash during TWCA’s first-ever beach cleanup on June 14. Lori was recently selected as General Manager of Gulf Coast Authority.

She will replace Ricky Clifton who was the GM for 43 years. Congratulations, Lori!

July 2017 - Q2 Confluence

Table of Contents

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President’s Message Mike Booth

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GCA GM Ricky Clifton Retiring after 43 Years

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Gulf Coast Authority staff

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Water Supply Planning Series: Opportunities Via Reuse Nathan Vassar

Lloyd Gosselink Rochelle & Townsend, P.C.

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Non-water Bills of Interest: 85th Session Howard Slobodin Trinity River Authority | Water Laws Chair

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Data-Driven Flood Preparedness & Response Chairman Bech Bruun Texas Water Development Board

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2017 Mid-Year Conference Recap Adeline Fox, TWCA

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WOTUS - the Run Down Paulina Williams

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Baker Botts LLP

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85th Legislative Session Wrap-up Stacey Allison Steinbach, TWCA

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What is Boiler & Machinery Insurance?

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Luce Bayou Interbasin Transfer Project Update David Miller, P.E.

TWCA Risk Management Fund

WOTUS 17

Coastal Water Authority

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Protecting Watersheds: A Coordinated Approach Blake Alldredge and Jason Pierce Upper Trinity Regional Water District

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Board Members & Past Presidents

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What’s new with TWCA?

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How well do you know your TWCA staff?

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Message from the President

Mike Booth - Booth, Ahrens & Werkenthin, P.C. I hope all that attended our Mid-Year Conference learned a lot and had a great time — I know I did on both counts.

Before I get started, I want to thank the sponsors of the conference, TWCA staff and the various committees and members who worked on making the conference successful. Specifically, a big thanks to the Membership and Services Committee for coming up with the Galveston Island State Park beach cleanup event and all who participated. I believe I did a much better job picking up litter than I would have playing golf!

If you attended the board meeting at the conference, you know that we approved a new logo and set in motion a new committee to decide whether to increase the TWCA’s participation in federal issues. This includes discussions regarding a potential coordinated federal response for requests to comment or participation on federal issues that are brought up in various TWCA committees and panels.

More news about that committee’s work will be forthcoming at the fall conference.

But maybe more importantly than logos or federal issues, members heard an update from the Membership and Services Committee and a Bylaws Committee recommendation to add another six members to the TWCA board. The proposed bylaws amendments were voted on and approved by the board and the TWCA membership this month. The president, president-elect, and immediate past president will appoint two new board members each to implement the new bylaws policy.

It is no secret that the TWCA has recently begun aggressively pursuing the development and mentorship of our new and younger members. The rich industry knowledge TWCA possesses comes with an expiration date: retirement.

As many of our leaders begin looking towards that goal, I would like to ensure we have members ready to step up and capably take up leadership positions. So, this initiative as well as others to be announced in the future will give more people the ability to actively participate in our organization, and hopefully, get more involved. If anyone has any questions or concerns about this need or anything relating to TWCA let us know.

I look forward to seeing everyone at our Fall Conference. Have a great summer.

Michael J. Booth

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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 James C. Conkwright 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

GCA GM Ricky Clifton Retiring after 43 Years

and recently the governor and the Texas Legislature expanded our authority to handle other types of water projects for the state.” It was on Clifton’s watch as GM that the Authority created and promoted a business development group. “We’re looking for new industrial customers to serve and other ways we can contribute to a strong economy and a clean environment. Our mission is protecting the waters of the state of Texas, but in doing so, we are providing services that attract industries to our state and region and help these businesses grow. In that sense, we’re job creators.” Clifton has high praise for GCA employees. “They’re professional, enthusiastic, committed and loyal. Dedicated to a clean environment in all its aspects—volunteering for cleanup events such as Trash Bash® and serving on boards and liaison committees. Our employees are the best.” As for retirement, Clifton has many plans. “I’ll continue to be involved with the Texas Water Conservation Association and some other organizations I’ve worked with at GCA. I’m going to help my community wherever I can be of service—though not in politics. I’ll stay active in my church and with the Knights of Columbus. I’ll do some fishing and golfing and there’s always something to do on my homestead.”

Clifton is past President of the Texas Association of Clean Water Agencies (TACWA) and is a member of the board of directors of the National Association of Clean Water Agencies (NACWA), the Texas Water Conservation Association (TWCA) and the TWCA Risk Management Fund. Other professional affiliations include Water Environment Federation, Water Environment Association of Texas, and the American Water Works Association. A lifetime resident of Galveston County, Clifton and his wife Vicki reside in Hitchcock. “Ricky has dedicated his entire professional career to GCA,” said Board Chairman Frank Jones. “He’s done a great job and the entire Board of Directors wishes him well in retirement.”

In 1974, Richard Nixon resigned as president, the price of gasoline was 55 cents per gallon, and Ricky Clifton began his career with the Gulf Coast Waste Disposal Authority. His experience in waste management goes back further, though.

This July, Clifton retires from his position as GCA General Manager. It’s been quite a ride.

“My dad worked for waste disposal service companies, managing industrial waste and my summer jobs were always in that field,” says Clifton. “I became familiar with the Bayport Facility one summer on a service run there before GCA owned it. I liked what I saw and soon found a position as an operator-trainee.

A year-and-a-half later I was promoted to chief day operator.” Two years later the Authority took over the Bayport Facility and Clifton became a GCA employee. The future GM put himself through college while working fulltime for GCA, earning a Bachelor of Science Degree in Biology with a concentration in Environmental Science in 1980 from the University of Houston-Clear Lake. After 20 years at Bayport, he accepted the manager position at the Campbell Bayou Facility in 1994, and in 2000 was named manager of the 40-acre facility located just a mile down Loop 147 from Campbell Bayou. He was transferred to the Bayport Facility as Manager in July 2005 and in 2007 was promoted to Manager of Industrial Operations joining the senior staff at the Central Office. In 2009, the board of directors named Clifton Assistant General Manager of GCA and two years later appointed him to the top leadership position of General Manager.

“What I am most grateful for in my career with GCA is all the professional and personal growth opportunities I’ve been offered here,” Clifton says. “I read somewhere that the average person only works for a company for five years these days; I’ve been very fortunate to have spent over 40 years in a field and with an organization I love.”

Clifton has witnessed—and managed—a great many changes during his long career. “We’ve become much more structured as environmental regulations, compliance requirements, technology and our customer base have evolved.

Though we thought of ourselves primarily as a wastewater treatment organization, we also manage air emissions at our facilities, we operate a state-of-the-art industrial landfill, 5

Water Supply Planning Series: Integrated Water Supply and Water Quality Opportunities via Reuse1

By Nathan E. Vassar

For years, many utilities’ water supply and water quality programs have effectively functioned as “silo” operations, where water quality personnel focused on their utility’s need to meet its Clean Water Act discharge permit requirements on the one hand, while water supply staff focused upon managing a water rights portfolio, meeting customer demands, and complying with Safe Drinking Water Act requirements. In recent years, however, some utilities have recognized the value of a more integrated approach—one that identifies reuse and other available opportunities by taking a holistic view of wastewater effluent and emerging trends in the evolving water supply-water quality nexus. To date, this water supply planning series in the Confluence has focused on a variety of topics, starting with the importance of water supply audits to evaluate a utility’s assets and liabilities. We have also highlighted the opportunity to utilize exempt interbasin transfers where appropriate, and we’ve examined the Four Corners doctrine, which can limit the need for expensive and time-consuming hearings on minor water right amendment applications meeting the Marshall criteria. This article highlights another often underutilized water supply planning option— exploring the confluence of water quality and water supply planning through consideration

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of reuse opportunities to augment and get the most out of existing water supplies.

In order to meet the growing population in Texas and related growth in water demands, utilities have begun to recognize the importance of wastewater effluent as a consistent and reliable water supply source. For many years, utilities disclaimed ownership of discharged effluent, fearing potential liability from downstream interests. That trend has changed in recent years, as water suppliers have recognized the nearly drought-proof nature of wastewater treatment plant discharges of treated effluent, and as Safe Drinking Water Act concerns have lessened in light of technological improvements and blending practices. Further, many utilities have recognized that, in light of the significant expenditures they have made to develop their potable water supply sources, it is smart to secure further returns on those investments by obtaining the right to reuse the effluent resulting from the initial use of such sources. While many reuse strategies focus heavily upon a bed-and-banks, indirect reuse approach, several recent examples highlight the successes (and TCEQ permitting templates) of direct reuse projects during the recent drought, including those in Wichita Falls and Big Spring, Texas, among others.

A return flows strategy may include formal

permitting for subsequent diversion, or using return flows to firm up existing, more senior water rights, or both. A water rights holder may or may not need to secure additional supplies, but depending upon sedimentation in existing reservoirs, priority status of existing rights, new droughts of record, and many other factors, return flows may serve to bolster senior water rights that are not completely firm. This “firming up” approach can serve as valuable insurance, particularly in times of drought, although it can carry the risk of others’ appropriation of the discharger’s return flows where possible. To that end, entities can also appropriate return flows without a separate diversion authorization, so as to perfect a “firming up” strategy.

In order to examine the availability of return flows for water rights permitting, utilities should consider their own discharges pursuant to their TPDES permits, as well as those of other in-basin dischargers, identifying the relative sources of such flows as either surface water or groundwater-based—which may well come with different regulatory issues. Publicly available documents identify current and future return flows: TCEQ’s Water Availability Models (“WAMs”) include runs that consider the availability of return flows (i.e., WAM run 8), and the state and regional water planning efforts often include projections of reuse of effluent and/or return flows through a fiftyyear planning horizon. As such, any water utility should consider the availability—now or in the future—of return flows that may be available for permitting as a relatively low-cost option to augment existing supplies, whether for use for potable or non-potable purposes.

As we discussed in the earlier water utility audit article, water suppliers should also examine their water supply contracts and related provisions concerning ownership of the wastewater resulting from water use.

Contracts will often include restrictions on reuse opportunities, as many wholesale water providers seek to retain ownership over return flows. Such restrictions may well have implications as to who can apply (now or in the future) to appropriate return flows actually discharged. Depending upon reuse options that

may be available, a water supplier may wish to approach third party dischargers (even those not subject to existing contracts) to purchase their return flows, without regard to whether such flows are already appropriated. Tying up return flows by contract can lay the foundation for a future water rights application, while effectively preventing others’ appropriation of such flows.

Recent developments underscore the wisdom of a purposeful reuse strategy. The recently TCEQ-issued System Operations permit to the Brazos River Authority highlights the importance of permitting existing and future return flows (both for dischargers and third parties), and the value of securing reuse rights from others.

Reuse planning, and thinking about water supply and water quality programs as slices of a common water supply pie, can afford utilities the ability to stretch water supplies in a reliable and low-cost manner. Like other strategies we will examine in this ongoing series (including conservation and accounting protocols), water reuse is an elegant tool to help build a supply portfolio over time that will help minimize or delay the need for more expensive new water supply projects. Through assessment of contract rights, options to firm up existing senior rights, and bed-and-banks permitting, water supply planners can pursue valuable avenues to serve existing customers and to plan for increased water needs in the future.

This article is included in an ongoing series of water supply planning articles that address issues related to such planning, aimed at supporting TWCA members’ efforts at maximizing their use of water supply portfolios.

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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

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Non-water Bills of Interest, 85th Legislative Session

By Howard Slobodin

With the 85th Regular Session in the rearview mirror, it is timely not only to consider the water bills of interest, but also those passed bills that may affect special district operations.

While a good number of bills of general interest failed this session, several enacted into law are worthy of note. The latter bills concern open government, project finance, operations, purchasing, and water planning. In addition, one proposed constitutional amendment would modify a longstanding doctrine with regard to holdover appointees’ terms of office.

revenue obligations, bond and sales tax information and recent fiscal year budget information. The Comptroller may levy a $1,000 fine for failure to furnish information.

Finance HB 544 (Anderson, Doc): Amends Texas

Water Code Chapter 15 to authorize TWDB to use the Rural Water Assistance Fund (RWAF) to support rural entities’ planning efforts (in addition to existing uses of outreach, financial, and technical assistance) necessary to obtain and use financing from any source.

Previously, TWDB was limited to providing funding assistance from the RWAF for obtaining financing from the RWAF itself.

Open Government HB 501 (Capriglione): Amends Texas

Government Code Chapter 572 regarding the required disclosures to be included in annuallyfiled personal financial statements. Those statements must now include a disclosure of businesses in which the filer has a five percent or greater interest, and filers must identify certain contracts between any governmental entity and business entities in which the filer, filer’s spouse or dependent children have a greater than 50 percent interest. The bill also authorizes amendments to personal financial statements that relate back to the original filing date if made promptly upon discovery of an error. In order to qualify for the safe harbor, a filer must: 1) file the amendment on or before the fourteenth day after the date filer learns of an error; 2) the original statement must be made in good faith and without an intent to mislead; and, 3) the filer must accompany the amendment with a declaration that conditions 1) and 2) are true and correct.

SB 1289 (Creighton): Amends the Texas

Government Code Chapter 2252, adding Subchapter F, to require that all steel and iron products used in SWIFT- and SWIRFT-financed projects be produced in the United States.

Exceptions include where the product is not produced in sufficient quantities, reasonably available, or of satisfactory quality, or if doing so would increase the project cost by more than twenty percent. An additional exception is included for cases where complying with the requirements is “inconsistent with the public interest.” TWDB has indicated that it will undertake a rulemaking to define the contours of the “public interest” exception. Electrical components, equipment, and systems are also exempted from the rule. The requirements of the new Subchapter F do not apply to a project “formally approved” by TWDB (any project subject to a resolution approving an application for financial assistance adopted by TWDB) before May 1, 2019. SB 1289 also requires TWDB to prepare a report regarding the impacts of the new requirements before December 1, 2018. SB 1289 further eliminates “manufactured goods” from the U.S. iron and steel requirements of Texas Water Code Chapter 17.

SB 625 (Kolkhorst): Amends Texas

Government Code Chapter 403 to require the Comptroller to create a Special Purpose District Public Information Database that includes information about all special purpose districts within the state. The database will include, but not be limited to, general contact information, board member and management information, 8

Operations

they were needed; and, 2) impediments to the implementation of those priority projects not implemented in the decade in which they were needed.

The bill also amends Chapter 16 to add a representative of the State Soil and Water Conservation Board to each regional water planning group. It further amends Chapter 16 to require that a TWDB-approved regional water plan must be amended to exclude water management projects or strategies that become “infeasible,” and to consider another strategy/ project that will meet the need the excluded project addressed. A project is “infeasible” if the proposed sponsor of the project has not formally approved expenditures necessary to construct or filed applications for permits required on a schedule that is consistent with the project’s implementation by the time it is needed as identified in the regional plan.

SB 1511 also authorizes simplified planning every other five year planning cycle if there are no significant changes to the region’s water availability, supply, and demand in the water planning area.

HB 1257 (Kacal):

Amends Texas Penal Code Section 28 to add property used for flood control purposes or a dam into the category of criminal mischief offenses that can be punished as a state jail felony.

HB 1573 (Price): Amends Texas Water Code

Chapter 16 to require water loss auditors to complete mandatory training to conduct water loss auditing, which is required annually for retail public utilities providing potable water.

The bill further requires TWDB to make the training available for free on its website, and the training must include water utility systems information and terminology, and describe the tools available for analyzing audit results. The training can be completed through video or in person.

HB 1648 (Price): Amends Texas Water Code

Chapter 13 to require a public utility that provides potable water to more than 3,300 connections to designate a water conservation coordinator to implement the utility’s water conservation plan, and a covered utility must notify TWDB of the designation in writing.

Constitutional Amendment SJR 34 (Birdwell): This resolution proposes to

amend Article XVI of the Texas Constitution to provide that gubernatorial appointees who do not receive a salary may only remain in office under an expired term until the last day of the first regular session of the Legislature that begins after the term expires. Voting for this amendment will occur on November 7, 2017.

SB 622 (Burton): Amends Local Government

Code Chapter 140 to require political subdivisions to include a line item in their proposed budgets reflecting expenditures for newspaper notices required by law. The line item must furnish a clear comparison between the proposed budget and actual expenditures in the prior fiscal year. This does not apply to counties or political subdivisions located in counties with a population less than 50,000.

Water Planning

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

SB 1511 (Perry): Amends Texas Water Code

Chapter 16 to require the State Water Plan to include information on SWIFT projects deemed high priority by TWDB to receive financial assistance in the previous State Water Plan including: 1) the extent to which those projects were implemented in the decade in which 9

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Data-Driven Flood Preparedness and Response

By TWDB Chairman Bech Bruun We live in an age of nearly instantaneous gratification, mostly thanks to the wonderful world of technology. Need to reroute your destination? Just push a few buttons—but pull over first. In the mood for a specific restaurant but don’t feel like leaving your couch? Plenty of services will deliver with the download of an app. Almost out of baby formula and diapers? (I can personally relate to this with a new baby at home). Order more online; they can be at your doorstep tomorrow.

As a society, we’ve come to rely on technology more than ever before, and that includes during times of emergency. Real emergencies, although I could be persuaded that a diaper shortage counts. In the event of a natural disaster, reliable, accurate, and timely information is critical. I’m thinking about flood situations, in particular. Did you know that among all natural disasters, flood is the leading cause of fatalities in Texas? Not including Hurricane Katrina, Texas annually has the most flood fatalities and injuries in the United States—more than three times the amount of the next highest state.1 As many Texans have experienced firsthand, flood conditions can happen in a matter of minutes, anytime, anywhere. The Texas Water Development Board (TWDB) has been working diligently during the last two years to put flood data into the hands of communities, first responders, and citizens so they can make informed decisions to save life and property.

During the 2015 Legislative Session, Senator Kirk Watson authored an amendment that directed flood funding to the state’s Disaster Contingency Account. Governor Greg Abbott then authorized the transfer of $6.8 million from that account to the TWDB to expand the state’s streamgage network and to provide additional technical assistance and outreach for floodplain management and planning.

The gathering of flood data starts with streamgages.

The first streamgage in Texas was installed in 1889 on the Rio Grande near El Paso to monitor streamflow and silt content daily by hand. Like most technology and science, streamgages have evolved over time, and much of that evolution is a result of the need for more timely and accurate data.

Today, the state’s streamgage network provides the primary data by which weather forecasters and communities can make decisions regarding potentially dangerous flood conditions. The network’s role in flood prevention is crucial.

Streamgages measure the elevation of water in a river or stream and transmit this data via satellite to the United States Geological Survey (USGS) who operates most of the state’s gages.

The data is collected and transmitted every 15 to 60 minutes and available to the public on the USGS website. From there, first responders can view the data and quickly assess the situation in their area and upstream. The National Weather Service also pairs the information with weather data to make flood predictions.

The USGS maintains a network of thousands of streamgages across the U.S., of which approximately 550 are in Texas. The more strategically placed streamgages there are collecting data, the more informed we are as a state.

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Flooding in Houston. Photo courtesy of TxDOT.

improved flood forecasting. The streamgage study recommended 42 new gages and was completed in December 2016. Those floodgages will be our next priority for installation.

In an effort to make the streamgage data more user friendly and digestible for Texans, the TWDB launched TexasFlood.org, another result of the Disaster funding. The website serves as a centralized location for flood-related data and information on what to do before, during, and after a flooding event. The Flood Viewer tracks flood conditions by monitoring streamgages, weather radar, and weather warnings—all provided by the National Weather Service— and statewide lake conditions provided by the TWDB. All data is displayed on a web-based interactive map, making access to data on rising rivers, streams, and reservoirs more easily accessible.

We’re really excited about recent updates to the Flood Viewer, many of which were made to accommodate Texans on the go. Updates include a new mobile-friendly user interface, locationbased URL links for improved data sharing, new Twitter features, “locate me” and “follow me” functions to track your locations in case you’re traveling or away from home, and updated animated weather radar with improved lake conditions display. Users also have the ability

Since we received the disaster funding, we have expanded Texas’ streamgage network in especially flood-vulnerable areas by funding and installing 23 floodgages, with an additional six to be installed by the end of summer. A floodgage, or flood-hardened streamgage, is a fortified gage built and positioned to withstand higher and stronger water flow. It usually has a back-up gage set farther away and higher up from the river or stream’s main flow and oftentimes can be seen near bridges. Floodgages collect and transmit data to the USGS every 15 minutes and are typically placed in more floodprone areas.

The shorter window between data collection and transmission to the USGS means first responders can access the information in near real-time and can take swifter action to alert their communities appropriately through sirens, road closures, evacuations, and other life-saving methods. Similarly, the National Weather Service is able to make more timely and accurate flash flood warnings and forecasts to local news stations.

In summer 2016, the TWDB commissioned a study to determine where gaps exist in the streamgage network and National Weather Service’s weather station network and identify communities with the most pressing need for 12

The Flood Viewer on TexasFlood. org tracks flood conditions by monitoring streamgages, weather radar, weather warnings, and statewide lake conditions.

The interactive map makes access to data on rising rivers, streams, and reservoirs easily accessible.

The gathering of flood data starts with streamgages.

Pictured, a gage on the North Concho River upstream from O.C. Fisher Lake and under the FM 2288 bridge.

Our Flood Mitigation Planning team is an excellent resource for communities.

Texas will always be susceptible to floods, and our citizens will always need to be vigilant in storms. But technology is putting new tools into our hands, allowing the officials charged with keeping us safe to do their jobs faster and better. The data collected by streamgages and provided by the TWDB could save a life.

to subscribe to streamgages and receive phone alerts when gages have reached a flood stage.

Aside from potentially saving lives in the present, streamgage data offers valuable longterm benefits, as well. Years of historical data collection enables the National Weather Service to better calibrate flood models and develop more accurate flood forecasts. Understandably, it’s not economical or otherwise feasible to measure all rivers and streams at each of their important locations. But with historical data, the USGS is able to make streamflow estimates at ungaged locations. Communities can then more comprehensively plan infrastructure based on past data and future predictions in their area.

We also use the historical data for statewide drought and flood planning.

TexasFlood.org and the streamgage program are just two of the TWDB’s ongoing flood initiatives. In addition to coordinating National Flood Insurance Program activities for the state of Texas, we provide financial assistance to assist state and local entities in creating or improving upon flood early warning systems, flood response plans, and flood protection planning studies. We also administer the Flood Mitigation Assistance Grant Program for the state on behalf of the Federal Emergency Management Agency (FEMA).

Sharif, Hatim O., Jackson, Terrance L., Hossain, Md. Moazzem, Zane, David. Analysis of Flood Fatalities in Texas. 2014.

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Bech Bruun was appointed Chairman of the Texas Water Development Board by Governor Greg Abbott on June 10, 2015.

He has served as a board member of the Texas Water Development Board since September 1, 2013. A native of Corpus Christi, Bruun resides in Austin with his wife Glenna and their children Cilla Kay, Radford, and Anne Charlotte.

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2017 MID-YEAR CONFERENCE RECAP

By Adeline Fox

Nearly 350 people participated in conference activities in Galveston during the week of June 14-16. Galveston Mayor Jim Yarbrough kicked off day one of the conference by welcoming all attendees to the Gulf Coast. House Natural Resources Committee Chairman Lyle Larson provided a keynote address recapping the 85th Legislative Session. Other highlights included an agency update panel featuring agency leaders Richard Hyde (TCEQ), Carter Smith (TPWD), and Jeff Walker (TWDB). Other topics included professional leadership, Luce Bayou Interbasin Project, West Texas groundwater, economic development, legislative recap, overview of drone rules and regulations, and ethics. Each presentation provided great insight to all who attended the conference.

While the conference was a lot of fun, the 11th Annual Jim Adams Memorial Golf Tournament proved to be a great time too.

Eleven teams participated, but only three teams prevailed. The top three top teams and other honors are as follows: 1st place:

Frances Fey, Bob Johnson, Chuck Kellogg and Corey Jones

2nd place:

John Grant, Chairman Larson, Chairman Bruun and David Montagne

3rd place:

Mark Evans, Jace Houston, Bobby Adams and Mitchell Page

Longest Drive: Closest to the pin:

In addition to having a golf tournament, TWCA hosted a service project during the Mid-Year Conference. The first-ever beach cleanup had a great turnout with 13 different companies represented and about 30 total participants. It was an event for all ages. There was even a most interesting piece of trash contest, which turned out to be competitive.

The most interesting piece of trash was a purple bra, but an alien man, G.I. Joe and a snorkeling flipper were also in the running.

Thank you to our sponsors: Booth, Ahrens & Werkenthin, Texas General Land Office, Gulf Coast Authority, San Jacinto River Authority, Texans for Clean Water, and Galveston Island State Park.

As for business, the board of directors voted to adopt a new logo and recommended amendments to the bylaws. Check out the new logo on the top of page four of this issue.

Check out the video recap!

Caleb Spurlock Bob Johnson

Thank you to all the golf participants!

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Golf Tournament winners & Beach Cleanup crew

First place team: Frances Fey, Bob Johnson, Chuck Kellogg and Corey Jones. Congratulations!

Second place team: John Grant, Chairman Larson, Chairman Bruun and David Montagne

Third place team: Mark Evans, Jace Houston, Bobby Adams and Mitchell Page

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More photos from the Mid-Year Conference

House Natural Resource Committee Chairman, Lyle Larson, provided an 85th Legislative Session recap.

TWCA President Mike Booth introduces the Mayor of Galveston.

The agency updates panel featured Jeff Walker (TWDB), Richard Hyde (TCEQ) and Carter Smith (TPWD).

TCEQ’s Deputy Executive Director, Stephanie Bergeron-Perdue, catches up with Wayne Halbert during a coffee break.

Ed McCarthy and Mike Gershon prepare for the West Texas Groundwater panel.

Galveston Mayor Jim Yarbrough welcomed us to the Gulf Coast.

Morgan Johnson, with McGinnis Lockridge and Kilgore LLP, discusses the latest rules and regulations for using drone technology.

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Waters of the U.S.— the Run Down

By Paulina Williams

It is impossible to quantify how many millions of hours and dollars have been spent defining and disputing the term “waters of the United States,” or how many more are to come. The term “waters of the U.S.” (“WOTUS”) is the touchstone of Clean Water Act (“CWA”) jurisdiction and determines the scope of key programs such as permitting discharges of dredged and fill material under Section 404, permitting point source discharges under Section 402, oil spill liability, and the requirement to have spill prevention, control, and countermeasure plans, among others.

After decades of controversy around the scope of federal CWA jurisdiction and three U.S. Supreme Court opinions, on June 29, 2015, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) (collectively, “Agencies”) adopted a final rule redefining “waters of the United States” (“2015 WOTUS Rule”).

In issuing the 2015 WOTUS Rule, the Agencies claimed that their definition of “waters of the U.S.” was both consistent with agency practice, law, and science, and would make permitting “more timely and predictable as covered and exempt waters are more clearly defined.”

Others, including many states, believed the new definition was impermissibly broad, would create significant permitting burdens, and remained problematically ambiguous. The 2015 WOTUS Rule became effective on August 28, 2015 but was promptly stayed by federal courts.

Today, the Agencies continue to apply the pre-existing definition of WOTUS as informed by case law and guidance. This imperfect, but familiar, status quo seems likely to remain for some time while the wheels of administrative rulemaking slowly turn, effectuating the existing political will to revise WOTUS through rulemaking.

1. Where is the 2015 WOTUS Rule?

The 2015 WOTUS Rule, while stayed, is still on the books and in the courts. More than thirty states, numerous trade organizations, and others filed lawsuits challenging the rule in both district and appellate courts. The Court of Appeals for the Sixth Circuit, where the appellate challenges were consolidated, issued a nationwide stay of the 2015 WOTUS Rule and decided that it, rather than the district courts, had jurisdiction to hear the challenges. Whether the CWA requires the 2015 WOTUS Rule challenges to be brought first in the district courts or appellate courts is a procedural question that the U.S. Supreme Court will decide following oral argument on October 11, 2017. A Supreme Court ruling would clarify the proper venue for challenges to future rulemakings defining WOTUS. Meanwhile, the case on the 2015 WOTUS Rule’s merits is in abeyance pending the Supreme Court’s jurisdictional decision. Because initial and response briefs were filed prior to the change in Administration, if the case proceeds to the merits, the Sixth Circuit will have before it a defense of the 2015 WOTUS Rule from the Obama Administration’s Department of Justice.

2. What is the Rule’s Fate?

Revisiting (and narrowing) the 2015 WOTUS Rule’s reach is a significant priority of the new Administration. On February 28, 2017 President Trump signed an executive order titled “Restoring the Rule of Law, Federalism, 17

and Economic Growth by Reviewing the ‘Waters requires a “reasoned” explanation, it is likely of the United States’ Rule.” The order directs that future lawsuits over any final rescission rule the Agencies to review the 2015 WOTUS Rule will challenge the sufficiency of the Agencies’ and to propose a rule rescinding or revising the rationale. The proposed rescission rule has not rule, “as appropriate and consistent with law.” yet been published in the Federal Register, but The Agencies should also “consider interpreting the Agencies have already received requests to the term ‘navigable waters’ [which is defined extend the 30-day comment period. as WOTUS] . . . in a manner consistent with the In the second step, the Agencies intend to opinion of Justice Antonin Scalia in Rapanos develop an alternative WOTUS definition v. United States, 547 U.S. 715 (2006).” Justice consistent with the Executive Order. On April Scalia would have interpreted “navigable 19, 2017, EPA met with and solicited input waters” narrowly, supporting federal jurisdiction from state and local officials. EPA’s presentation only over “relatively permanent, standing or identified three potential approaches for continuously flowing bodies of water,” thus redefining WOTUS in a manner consistent excluding intermittent or ephemeral channels with Justice Scalia’s Rapanos test. Relatively and most drainage ditches. Further, Justice Scalia permanent waters could include: (1) perennial would have limited federal jurisdiction over streams plus those with “seasonal” flow; (2) wetlands to those with a continuous surface perennial streams plus those with another connection to waterbodies that are “waters of measure of flow (e.g., frequency of flow or the U.S.” in their own right. This interpretation intersection with the water table); or (3) of navigable waters would substantially narrow only perennial streams. A continuous surface federal jurisdiction relative to the “significant connection could mean: (1) surface connections nexus” test articulated by Justice Kennedy, on to a jurisdictional body even through nonwhich the 2015 WOTUS Rule is purportedly (but jurisdictional features (e.g., both abutting expansively) based. wetlands and those with a continuous surface As a first step, on June 27, 2017, the Agencies connection, regardless of distance); (2) some signed a proposed rule to replace the stayed degree of connectivity to a jurisdictional 2015 WOTUS Rule and to re-codify the “exact body; or (3) only wetlands directly touching a same regulatory text” that existed prior to jurisdictional water. the 2015 WOTUS Rule. Under this proposal, Meeting the ultimate objectives — a WOTUS implementation of the 1986 definition of definition that provides a reasonable level of WOTUS would be informed by “applicable clarity and respects federal jurisdiction’s limits — guidance documents . . . and consistent with while navigating procedural hurdles and public the [Solid Waste Agency of Northern Cook County scrutiny is no small task. But the Agencies state v. Corps] and Rapanos Supreme Court decisions, that WOTUS remains a high priority and a stepapplicable case law, and longstanding agency two replacement WOTUS rule is intended to be practice.” Finalizing this rule would eliminate the proposed relatively quickly. risk that the 2015 WOTUS Rule could spring back to life (in all but the 13 states under a district court stay) if the Supreme Court’s decision on jurisdiction invalidates the Sixth Circuit’s nationwide stay.

Paulina Williams is a senior The Agencies cite the Executive Order as one associate for Baker Potts LLP justification for their proposed rescission rule. in Austin. Paulina’s practice The Agencies also assert that rulemaking is involves environmental needed because the 2015 WOTUS Rule failed litigation, regulatory compliance and transactional to adequately consider CWA Section 101(b), support relating to air, water, which addresses states’ roles in ensuring waste and natural resources water quality. Any revised WOTUS Rule, the issues.

Agencies say, will specifically consider the paulina.williams@bakerbotts. “meaning and importance” of Section 101(b). com Because revising a regulation adopted by a prior Administration based on a change in policy 18

85 th

85th Legislature Bills

6631

Legislative Session Wrap-Up

By Stacey Allison Steinbach

filed

Ask any legislator, staffer, or lobbyist, and they’ll tell you the 85th legislative session was one like no other. And though most in the political sphere say that at the end of every session, this year it’s true. In 2017, legislators filed 6,631 bills, second only to the 2009 session. And just 1,211 of those bills passed both chambers by Sine Die. Governor Abbott then vetoed 51 bills, the most vetoes by a governor in more than a decade. The 17.5 percent bill passage rate is also the lowest seen in more than a decade, attributable in large part to political disagreements between the chambers and delays in processing legislation.

The 85th was also unusual in that water legislation did not draw a great deal of attention among legislators and the media. It may be that the state’s wet years since the 2011 drought have caused policymakers to focus on other issues. This year, the spotlight was on tax reform, social issues, and school matters. And it still is – the governor called a special session to continue legislative efforts on these fronts (more on the special session in the conclusion).

As in past sessions, TWCA closely tracked bills of possible interest to our members. TWCA staff followed nearly 450 bills in 2017, designating more than a third of those bills as high-priority.

The overall bill breakdown is shown in the infographic.

1160 passed 17.5% rate

Bills TWCA Tracked

444 filed

81 passed

18.2% rate

High-Priority Bills TWCA Tracked

160 filed

26 passed

16.3% rate

House Bill 2215: Desired Future Condition (DFC) Adoption Dates (Price/Miles)

This bill amends the deadlines for proposing and adopting DFCs by Groundwater Conservation Districts (GCDs) to best align the process with the state water planning process.

Groundwater Management Areas must now propose DFCs for adoption by May 1, 2021, adopt them by January 5, 2022, and repeat the process every five years thereafter.

TWCA Groundwater Committee As we reported in the last issue of Confluence, TWCA’s longstanding Groundwater Committee, chaired by Hope Wells and Brian Sledge, approved 11 groundwater-related legislative proposals in advance of the 85th Legislature.

Ten of those bills were filed, five were sent to the governor, and four are now law or will be effective on September 1st. It’s interesting to note that these four bills are the only bills to amend Chapter 36 of the Texas Water Code (relating to Groundwater Conservation Districts) this session:

Senate Bill 864: Use of Groundwater in Conjunction with a Water Right (Perry/King)

This bill amends Chapter 11, of the Water Code, to require special notice when an applicant for a surface water right at the Texas 19

House Bill 3177: Actions by the Executive Director (Lucio III/Estes)

Commission on Environmental Quality (TCEQ) proposes to use groundwater from a well located within a GCD as an alternative source of water.

This bill went through TWCA’s Surface Water Committee.

This bill defines when a matter becomes uncontested before parties are named at TCEQ and clarifies the process for challenging an action of TCEQ’s Executive Director with the agency’s commission first and then by filing a district court appeal.

Senate Bill 865: GCDs and Direct Deposit (Perry/Burns)

One of the least controversial bills we tracked this session, SB 865 authorizes GCDs to use online banking tools such as direct deposit, online bill pay, and other electronic banking applications that increase efficiency in financial transactions.

Other Water Bills of Interest Senate Bill 1511: State Water Planning (Perry/Price)

This bill requires that the State Water Plan include implementation information on projects previously deemed high priority by the Texas Water Development Board (TWDB). It also adds representatives of the State Soil and Water Conservation Board as ex off icio members of each regional water planning group, requires regional water planning groups to amend plans to exclude “infeasible” water management strategies or projects, and authorizes a simplified, every-other-five-year planning cycle if there have been no significant changes to a planning group’s water availability, supply or demand.

Senate Bill 1009: Administratively Complete Permit Applications (Perry/Larson)

This bill limits the list of items a GCD can require for a permit application to what is already listed in statute as well as other relevant information included in a GCD’s rules. A GCD is prohibited from requiring any additional information for a determination of administrative completeness.

TWCA Surface Water Committee The 85th is the first session where TWCA convened a formal “Surface Water Committee” during the interim to address matters related to the state’s permitting of surface water.

The committee, chaired by Lyn Clancy and Bob Brandes, included more than 130 TWCA members and approved four consensus bills (including one groundwater committee bill) and one legislative concept, all of which were filed during session. Three of those bills are now law.

In addition to Senate Bill 864, described above, the Surface Water Committee bills that passed this session include:

Senate Bill 347: Regional Water Planning Groups and Open Government (Watson/Phelan)

This bill makes regional water planning groups and their committees subject to the Open Meetings Act and the Public Information Act. Senate Bill 1172: Local Government Regulation of Seed (Perry/Geren)

This bill prohibits a political subdivision from adopting an order, ordinance, or other measure that regulates agricultural seed, vegetable seed, weed seed, or any other seed in any manner, including planting seed or cultivating plants grown from seed. Though this bill was not intended to address any water-related matters, some water providers became concerned during session that the broad language could unintentionally pull in certain water regulations, including stormwater, drought contingency plans, and water conservation plans. The enrolled version expressly excludes these regulations to avoid any confusion.

House Bill 3735: Chapter 11 Clean Up (Frank/Rodriguez)

The TWCA-initiated version of this bill aimed to conform the requirements of a water rights application with current TCEQ practice and modern technology. It was amended on the House floor to remove language related to whether a water right application or amendment is consistent with the State Water Plan, and again in the Senate Agriculture, Water & Rural Affairs Committee to add House Bill 1430 (see below).

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Senate Bill 1430: Water Rights and Desalinated Seawater (Perry/Lucio III)

DFCs. Designations would not be allowed in formations that serve as a primary source of water supply for municipal or agricultural purposes. After the designation of a zone, a production permit would be issued in the same manner as an uncontested application, with permit terms equal to the expected project financing term but no longer than 30 years.

Versions of this bill have been considered by the legislature as far back as 2013, and this broad-based consensus effort was one of the last bills to pass the senate. It was amended on the senate floor to include House Bills 180 and 3417 (see below), but those bills were stripped in conference committee. The Governor vetoed the bill on June 15th, citing its complexity, and Chairman Larson refiled it as House Bill 27 during the special session.

This bill requires TCEQ to expedite processing of applications to amend existing water rights when the applicant is using desalinated seawater after acquiring the water right that is being amended. The bill also limits a contested case hearing on such an application to 270 days.

This bill was also added to House Bill 3735 (see above).

Government/Special District Bills For information on government/special district bills, see Howard Slobodin’s article on page 8 in this issue of Confluence.

Bills that Didn’t Make the Cut In sessions like the 85th, sometimes it’s just as important to track the bills that didn’t pass as it is to track those that did. These highpriority bills made it far enough in the process or commanded enough attention to suggest that we’ll see similar versions in 2019, and in fact, some have already been refiled this summer during the special session of the 85th legislature.

House Bill 3742/Senate Bill 225: Contested Case Hearings for Water Rights (Phelan/Taylor)

These bills were not companions, but they both would have significantly amended the contested case hearings process for water rights applications and amendments. House Bill 3742 came out of TWCA’s Surface Water Committee, and it eventually merged with Senate Bill 225 via committee substitutes in both chambers.

Legislators and stakeholders have been working on some form of this bill for at least three sessions, so we expect to see it reworked yet again in 2019.

House Bill 2378: Export Permit Renewals (Larson/Perry)

In 2015, the 84th Texas Legislature passed SB 854, allowing for automatic renewals of certain groundwater operating permits. However, many GCDs also require “export permits” when groundwater will be exported out of the GCD. This TWCA-initiated bill would have clarified that export permits must be renewed consistent with the corresponding operating permit. The Governor vetoed this bill on June 15th, but Chairman Ashby filed the bill as House Bill 275 and Chairman Larson included the language in House Bill 26 during the special session.

Senate Bill 696: Water Availability Model Updates (Perry/Larson)

This bill would have required TCEQ to update certain Water Availability Models (WAMs) at the agency. Though the bill passed the Senate and was voted out of the House Natural Resources Committee, it stalled when the funding component did not survive budget negotiations.

Chairman Larson refiled this bill as House Bill 282 during the special session.

House Bill 2377: Brackish Groundwater (Larson/Perry)

This bill would have expanded upon Chairman Larson’s 2015 brackish groundwater study bill by authorizing a GCD, upon petition or its own motion, to designate a brackish groundwater production zone where brackish groundwater can be produced without unreasonable negative impacts on groundwater, existing users, and

House Bill 31/Senate Bill 1392: Groundwater Management (Larson/Perry)

Though these bills were not companions, both were omnibus groundwater bills that addressed numerous provisions of Chapter 36, Water Code. Groundwater stakeholders worked with the Chairmen and their staff on multiple 21

House Bill 180: State Audit Review of GCDs (Lucio III)

drafts throughout session, reaching consensus on some major issues. Ultimately, the bills ran out of time, but we expect the work on these bills to continue in advance of the 86th session.

Elements of House Bill 31 are included in the special session’s House Bill 26.

This bill, initiated by TWCA’s Groundwater Committee in 2015 and 2017, would have limited the powers of the State Auditor’s Office to review a GCD’s financial records only, consistent with Chapter 49 water district audits.

The bill passed the House in both sessions, but did not make it through the Senate Agriculture, Water & Rural Affairs Committee. This session, the bill was added to House Bill 2377 on the Senate floor, only to be removed in conference committee.

Senate Bill 226: Notice of Amendments to Water Rights (Taylor/Frank)

This bill would have amended the Water Code to exempt certain types of water right amendments from any requirements of a statute or commission rule regarding notice and hearing or technical review, consistent with the Texas Supreme Court’s decision in Marshall v. Uncertain. It did not get enough votes in the House Natural Resources Committee to move to the House floor.

Looking Ahead Though the 85th legislature has adjourned sine die, their work continues. The priority is to pass legislation for a handful of state agencies subject to sunset this year, but the call includes 21 topics, ranging from political subdivision powers to abortion to education. TWCA is actively tracking nearly 50 bills so far, mostly addressing taxing and other authorities of political subdivisions, but we are also following nine high priority water-specific bills. In addition to the bills referenced in the previous section, legislators filed two TWDB funding bills, two bills related to Aquifer Storage and Recovery, one bill creating an “interregional planning council” of regional water planning group members to improve state water plan coordination.

After the special session, we will continue working with legislators and staff to better understand legislative priorities at the capitol.

With that information, we can best utilize TWCA’s committee resources to represent the interests of our members and help reach consensus on some of the state’s water issues.

House Bill 3417: Consideration of Registered Wells in Permitting (King)

This bill, initiated by TWCA’s Groundwater Committee, would have required a GCD to consider whether a proposed use of water unreasonably affects registered wells exempt from permit requirements in addition to existing groundwater and surface water resources and existing permit holders when issuing permits or permit amendments. It passed the House, but did not receive a hearing in the Senate.

It was later added to House Bill 2377 on the Senate floor, only to be removed in conference committee.

House Bill 3166: Modeled Sustainable Groundwater (Lucio III)

This bill, initiated by TWCA’s Groundwater Committee, would have added a definition of “modeled sustainable groundwater pumping” to Chapter 36 of the Water Code as the maximum amount of groundwater that the executive administrator of the TWDB determines may be produced from an aquifer on an annual basis in perpetuity using the best available science. It would have also included “modeled sustainable groundwater pumping” in the list of hydrological conditions considered by GMAs in developing DFCs. The bill passed the House but did not receive a hearing in the Senate.

Stacey Allison Steinbach is the Assistant General Manager of TWCA and TGWA. She previously worked as a utility district attorney in private practice, as a staff attorney for the Texas General Land Office, and as the Executive Director of the Texas Alliance of Groundwater Districts. ssteinbach@twca.org

22

What is Boiler & Machinery Insurance?

By TWCA Risk Management Fund

Although there is a historical record of a steam powered device invented by the Greek, Hero of Alexandria over 2,000 years ago the first really useful steam boiler was perfected by James Watts in England in 1765. The contraption he built was used to pump water out of coal mines and it established the principal of creating pressure with heat in a sealed vessel to do work. The pressure was used to move pistons that could push and pull water out of the mines. The pumping action of that first boiler evolved into steam locomotives, steam ships, automated textile looms, lathes, saws and even early automobiles. The steam engine and its associated boiler eventually replaced most windmills and water wheels as the choice generator of mechanical and electric power.

However, the boiler had a problem with pressure. If there was too little, nothing moved and if there was too much, boilers could explode catastrophically. One problem was that metallurgical technology in the 18th and 19th centuries had not caught up with the huge pressures that could be developed using steam.

Water expands by about 1,000 times when it turns into steam and the cast iron plates and rivets used in boilers in the 19th century could not contain the pressure consistently. This led to catastrophic explosions that did tremendous damage and killed people. In response, cities and states began to regulate boilers and require annual inspections to check for dangerous conditions. One innovation developed in 1866 was the establishment of the Hartford Steam Boiler company that paired boiler inspections with insurance on the equipment damaged in an explosion or other mechanical accident. A powerful incentive in the Hartford plan was that the inspector could suspend the insurance if a dangerous condition was found in the boiler. The initial insurance coverage offered

by Hartford Steam Boiler has evolved into “Equipment Breakdown Insurance” that still

covers boilers but extends to several other types of equipment. Equipment covered in the Fund’s policy includes: • electrical, • air conditioning • boilers and pressure vessels, • computers and communications equipment, • mechanical, • renewable and alternative energy and • production equipment The Fund offers this optional insurance on members’ equipment as part of the Property Coverage Document. The insuring agreement states: “We will pay for direct damage caused by a covered cause of loss to covered property located at the covered premises shown in the declarations.”

As always with insurance, definitions of the terms in the agreement determine what is or is not covered. In the current Fund coverage some of the important definitions are: • Covered cause of loss – “a breakdown” • Breakdown – means “direct physical loss that causes physical damage to covered equipment and necessitates its repair or replacement” as a result of electrical failure including arcing, failure of pressure or vacuum equipment or mechanical failure including rupture or bursting caused by centrifugal force.

• Covered equipment includes equipment designed to work under internal pressure or vacuum, communication and computer equipment, fiber optic cable and other electrical or mechanical equipment that is used in the generation, transmission or utilization of energy.

• Computer equipment is “programmable electronic equipment used to store, retrieve and process data” and includes peripheral equipment that provides communication including input and output functions such as printing or data transmission. There are 23

many other defined terms and limitations in the coverage, but it is still a valuable addition to a district’s property coverage because Equipment Breakdown responds to events that are otherwise excluded in the Property coverage document. Equipment Breakdown coverage responds to “loss to the covered equipment that essentially begins within the equipment” not something that is external to it. (IRMI, “Equipment Breakdown – More than Just Boiler and Machinery” William K. Austin, September 2011) As with any other insurance there are exclusions, deductibles and extensions of coverage. Common exclusions include events that would be covered in the property coverage and some of the same exclusions such as war, nuclear hazard, flood and deterioration due to improper maintenance. And in the days of growing awareness of cyber threat, “hacking events” are excluded unless a “covered cause of loss occurs” or a mechanical breakdown of the infected equipment.

Extensions of coverage under an Equipment Breakdown policy include: • Loss of Business Income that would have been earned during the period of interruption • Extra Expense to resume operations such as rent for temporary quarters, rental of replacement equipment • Utility interruption • Expediting expense to acquire parts or equipment as quickly as possible • Extension to electronic data or media • Newly acquired locations to extend automatic coverage to new locations Deductibles and waiting periods also apply to each coverage document. A “waiting period” is usually 24 hours of time that a piece of equipment is out of service before business interruption coverage begins. The Fund attaches the coverage for the district to the property coverage document.

The sidebar lists a few examples from Hartford Steam Boiler describing a loss and the way they responded to the claim.

If your district does not currently carry Equipment Breakdown coverage it might be worth considering as renewal season begins.

Contact your customer Service Associate for a quote.

Examples from Hartford Steam Boiler describing loss and claim response Electrical arcing destroyed three main electrical panels and left an office building without power. Temporary measures were taken to restore power to tenants – particularly to an accounting firm that was in the height of its tax season crunch.

Total Loss: $1,597,389

A control failed on a medical clinic’s refrigerator, causing the temperature to dive into single-digit temperatures. Drugs, which normally are stored between 36 to 43 degrees, had to be discarded.

Total Loss: $21,953

Sediment in a boiler caused a low-water condition that resulted in severe overfiring, shutting down the boiler – and a school. A rental unit was needed until the damaged boiler could be replaced.

Property Damage: $98,500 Extra Expense: $25,164 Total Loss: $123,664

Electrical power supply voltage fluctuation caused two telephone system terminal boards to burn out.

Total Loss: $52,500 Sources: IRMI, “Equipment Breakdown – More than Just Boiler and Machinery” William K. Austin, September 2011; Rough Notes, “Boiler & Machinery,” LeRoy Utschig, 2000; Live Science, “Who Invented the Steam Engine” Elizabeth Palermo, March 2014; Journal of Property Management, “Boiler and Machinery” Paul Dudley, July 1999; Travelers Insurance, Energy Max 21, Equipment Breakdown Protection Policy.

24

Coastal Water Authority Luce Bayou Interbasin Transfer Project Update

By David Miller, P.E.

There are 23.5 miles of earthen canal, 22 inverted siphons below drainage features, roads and pipelines and 11 bridges.

In 1967, the Texas Legislature established a new Conservation and Reclamation District with the responsibility to transport and deliver raw surface water from the Trinity River to the cities of Houston, Deer Park, Baytown and many industries along the Houston ship channel. This district was named the Coastal Industrial Water Authority which was later changed to Coastal Water Authority (CWA). CWA was authorized to acquire all necessary properties and construct the facilities to transport and deliver the water.

CWA’s first project is today the region’s most significant surface water supply. The project, called the Trinity River Conveyance Project, was initiated in the late 1960’s and completed in the early 1970’s. It consisted of a pump station on the Trinity River in Dayton, Texas, 26 miles of earthen canal, a 2 billion gallon reservoir and second pump station near the Lynchburg ferry.

Over the past 50 years, this system has been expanded and upgraded to now supply up to 800 Million Gallons per Day (MGD).

While the Trinity River Conveyance Project was under construction, regional planners were also developing a second water supply called

25

the Luce Bayou Diversion Project. The purpose of this project was to provide additional raw surface water to Lake Houston. The project was to consist of a 500 MGD pump station, three miles of dual 108-inch diameter pipelines and a few miles of earthen canal to the upper reaches of Luce Bayou which would then convey the water to Lake Houston. From the early 1970’s through the early 2000’s the project was evaluated many times, but never built. Over those years when additional surface water was needed it primarily came by expanding the pump stations on the Trinity River Conveyance System. With concerns of subsidence due to groundwater use, significant population growth in the region and the planned 400 MGD expansion of the Northeast Water Purification Plant on Lake Houston, the Luce Bayou project was again considered and ultimately selected for implementation in the early 2000’s.

Permitting began in 2005 with development of an Environmental Impact Statement to evaluate alternate routes for the project and the associated impacts to the environment. The permitting process was complete in 2014.

The primary project elements consist of an intake and pump station on the Trinity River, three miles of dual 96-inch diameter pipelines, 23.5 miles of earthen canal, and an outfall structure located at Luce Bayou at Lake Houston.

Construction of the 8 bay side river intake and pump station, which will include eight pumps capable of 500 MGD.

The project, now named the Luce Bayou Interbasin Transfer Project (LBITP), will transfer water from the Trinity River Basin to Lake Houston in the San Jacinto River Basin. Similar to the Trinity River Conveyance Project, the LBITP is being implemented by CWA who is under contract with the City of Houston to permit, design and construct this 500 million gallon per day (MGD) raw water supply project

by June 2019. The primary project elements consist of an intake and pump station on the Trinity River, three miles of dual 96-inch diameter pipelines, 23.5 miles of earthen canal, and an outfall structure located at Luce Bayou at Lake Houston. Secondary project elements consist of a 5.5 mile access road, canal maintenance facility and 138 kV electrical transmission service.

Engineering and design work for the primary and secondary projects began in 2014 and was complete in early 2017. Construction work began in 2015 and will be complete by first quarter of 2019. A copy of the planned design, procurement and construction schedule is provided in Figure 1.

The new maintenance facilities will house equipment and personnel used to maintain the 23.5 miles of canal.

David Miller, P.E., PMP joined CWA in 2013 to manage the Luce Bayou Interbasin Transfer Project. His background is construction of large complex heavy-civil projects for federal, state and local agencies. dmiller@coastalwaterauthority. org.

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LUCE BAYOU INTERBASIN TRANSFER PROJECT SCHEDULE 2014

2015

2016

2017

2018

2019

2019

Today CRPS Design and Procurement

Apr 14, 2014 ‐ Aug 31, 2016 Sep 19, 2016 ‐ Dec 31, 2018

CRPS Construction Jun 15, 2015 ‐ Jan 29, 2016 Access Road Design and Procurement Apr 11, 2016 ‐ Nov 30, 2016 Access Road Construction Feb 16, 2015 ‐ Jan 13, 2017 Canal Design and Procurement Canal and Pipeline ROW Clearing

Jul 14, 2016 ‐ Mar 30, 2017 Feb 13, 2017 ‐ Dec 31, 2018

Canal Construction Apr 11, 2016 ‐ Jul 12, 2017 96" Dia. Pipeline Design and Procurement Aug 15, 2017 ‐ Jul 15, 2018 96" Dia. Pipeline Construction Dec 14, 2015 ‐ Aug 15, 2017 Canal Maintenance Facility Design and Procurement Aug 15, 2017 ‐ Jul 15, 2018

Figure 1. Copy of planned design procurement and construction schedule.

Canal Maintenance Facility Construction Jan 1, 2019 ‐ Jun 28, 2019 LBITP System Startup/Testing

27

Protecting Watersheds: A Coordinated Approach

County-wide Plan Preserves Greenbelts, Protects Water Quality

By Blake Alldredge and Jason Pierce

Upper Trinity Regional Water District, based in Lewisville, Texas (Denton County), was established in 1989 by the Texas Legislature to provide regional water and wastewater service for growing communities in Denton and Collin counties. Currently, Upper Trinity operates two water treatment plants and four water reclamation plants, with total treatment capacities of up to 90 million gallons per day and 12 million gallons per day, respectively.

Upper Trinity’s sources of raw water include: Lewisville Lake and Ray Roberts Lake (Denton County) and Chapman Lake (Hunt County).

Denton County is rapidly urbanizing -- with growth and development expected to continue.

The County is transforming from a rural setting to urbanized communities, with the population expected to reach over 1 million by 2030. A safe and dependable source of drinking water is mandatory in sustaining the growing population and providing for a healthy economy. It’s urgent that we consider the effect of this urban growth on water quality, on water supply, and on quality of life “right where we live.”

Greenbelts, floodplains, streams, riparian areas and wetlands perform a vital function in filtering out pollutants (such as sediments, pesticides, fertilizers, and other harmful chemicals) from entering the streams, thereby safeguarding the quality of water entering 28

Drone photo over Lantana master planned community.

our water supply lakes. Hundreds of miles of streams in Denton County extend into and through each community, creating shared environmental resources - - and the need for communities to work together for mutual benefit. On behalf of the cities and utilities it serves, Upper Trinity coordinates a Regional Watershed Protection Program to encourage the preservation and protection of natural features in local watersheds, including greenbelts, floodplains, and wetlands. Upper Trinity’s public awareness programs promote ways residents can help protect water quality in their everyday activities at home and at work. Upper Trinity also operates a Household Hazardous

Waste program, in coordination with local communities, to collect and properly dispose of common household chemicals that can be harmful to the watershed, to prevent these chemicals from entering local water sources.

In order to preserve crucial watershed assets and protect water quality, Upper Trinity encourages communities to use their regulatory ordinance powers and development standards to limit encroachment of floodplain areas.

Limiting development in the floodplain helps to galvanize the functions of these natural assets, such as reduced flooding risk, recreational and educational opportunities, aesthetic value, wildlife and aquatic habitat, and other benefits 29

that enhance quality of life for residents. It’s important to remember that preserving and protecting important watershed assets now, and the benefits they provide, costs far less than having to restore their functions in the future.

Upper Trinity, seeing the importance of permanently preserving greenbelts and floodplains in the watersheds of the local water supply lakes, established the Upper Trinity Conservation Trust in 2010 as an additional mechanism for watershed protection. As a 501(c)(3) land trust, the Conservation Trust promotes the conservation and stewardship of land and water resources through educational activities, coordination with local governments, and the acquisition of land and conservation easements to protect water quality in the local watersheds for future generations. A conservation easement is a voluntary legal agreement between a landowner and a land trust that permanently limits certain uses of the property to protect its conservation values. Landowners retain ownership of their property and can continue doing certain activities, such as ranching, and can even sell the property, although the easement transfers to the new landowner. Conservation easements offer flexibility, and depending on certain circumstances, can qualify as a tax-deductible charitable donation for landowners.

Continuing its coordinated focus on watershed protection and the need to address the foreseeable land use changes and potential impacts to water quality, Upper Trinity, Denton County, and the Conservation Trust jointly sponsored the development of the Denton County Greenbelt Plan in 2015. The Greenbelt Plan, recently finalized, identifies existing greenbelts, opportunities for developing and expanding greenbelt corridors, and to prioritize area streams and watersheds for greenbelt preservation. The overarching goal of the Greenbelt Plan is to protect the water quality flowing into Denton County’s three drinking water supply reservoirs – Lewisville Lake, Ray Roberts Lake, and Grapevine Lake.

Denton County encompasses over 900 square miles and has hundreds of miles of creeks and streams, therefore, it was necessary to prioritize the streams and watersheds to allow

The City of Fort Worth conducted a Greenprinting study in 2013 and found that four-in-five residents said they would support funding to acquire lands to protect water sources.

30

for interested parties to concentrate on the highest priority areas – identified as Primary and Secondary Greenbelt Opportunities for preservation. The prioritization process used factors such as hydrology, ecology, land use, and cultural/historical features. Not surprisingly, the five highest priority watersheds were located directly adjacent to one of the reservoirs and have the greatest immediate pressure from development activities.

The Denton County Greenbelt Plan is not intended to be a regulatory document; rather, the goal for the Greenbelt Plan is to be a convenient guide to encourage and enable closer coordination among stakeholders for the preservation of multiuse greenbelts according to a common vision. Preserved greenbelts provide an excellent opportunity to increase connections between communities and to enhance the quality of life for residents by establishing hike and bike trails for recreation, and in some cases, can increase property values for nearby homes.

Successful implementation of the Greenbelt Plan, on a voluntary basis, will require strong leadership and support from County officials, local municipalities and dedicated citizens. To foster and encourage successful implementation, the Greenbelt Plan outlines various strategies

Greenbelts – vegetated areas along creeks, rivers and lakes – protect water quality and enhance quality of life for residents.

that can be considered to preserve greenbelts with examples of each. These strategies fall under three general categories: Education and Outreach, Protection Measures, and Funding and Acquisition Tools.

Education and outreach is paramount for future greenbelt preservation efforts in Denton County. As the awareness of the numerous benefits of greenbelts are more widely known among stakeholders, the higher the likelihood that these areas will be preserved and valued for the services that they provide for the area. Social media and billboard campaigns, brochures, and a developer recognition program are just a few examples of the education and outreach activities that are needed to raise awareness of the benefits of greenbelts.

Protection measures discussed in the Greenbelt Plan, once implemented, can preserve and expand greenbelt corridors before they are forever lost to urbanization. Examples or protection measures for municipalities include ordinances or setback requirements for development in floodplains and greenbelt areas. As a side benefit, municipalities can benefit from the protection and preservation of greenbelts in order to comply with their Municipal Separate Storm Sewer System (MS4) requirements. Additional measures include

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conservation easements, the purchase of development rights, mitigation banking and in-lieu fee mitigation programs, which are all excellent opportunities for landowners and nonprofit organizations to protect greenbelts and other natural assets.

Finally, funding and acquisition mechanisms are identified to enable local municipalities, Denton County, and nonprofit organizations to preserve and protect greenbelts. Funding options include general obligation bonds, development dedications, state and federal grants, and public/private partnerships.

Interestingly enough, the City of Fort Worth conducted a Greenprinting study in 2013 and found that four-in-five residents said they would support funding to acquire lands to protect water sources. This shows that residents in fact are concerned with where their water comes from and will support activities that benefit water sources.

Finding a balance between growth and conservation in Denton County will be a challenge. The Denton County Greenbelt Plan is a step in the direction toward finding that balance. With the existing and priority Greenbelt Corridors identified, local leaders have the tools needed to know what assets are available for protection. Developers can also

incorporate the priority Greenbelts into their development plans. Finally, landowners having priority Greenbelt corridors located on their property have tools and mechanisms available to improve water quality and stream function within their property.

Denton County is at a point of great opportunity. Now is the time to preserve its natural assets while sustaining economic growth for future generations! Visit DentonCountyGreenbeltPlan.com to learn more and to view the full version of the Greenbelt Plan.

Green shaded stream corridors are currently protected either by municipal ordinance or by state or federal management. Red shaded stream corridors do not have protection currently and are identified as Primary Opportunities for preservation.

Blake Alldredge is a Water Resource Specialist with Upper Trinity Regional Water District. He coordinates the Water Conservation and Watershed Protection programs, and helps with activities of the Upper Trinity Conservation Trust. Prior to joining UTRWD, he worked for the Texas A&M AgriLife Extension Service in the Wildlife and Fisheries division. balldredge@utrwd.com

Jason Pierce is Manager of Customer Contracts & Support Services for Upper Trinity Regional Water District, a regional wholesale provider of water and wastewater services to cities and utilities in Denton and Collin Counties. With over 17 years of experience in public service, he also leads UTRWD’s efforts in protecting the local watersheds and promoting water conservation. JPierce@utrwd.com

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TWCA Board of Directors 2017-2018 MICHAEL J. BOOTH President HOPE WELLS President-Elect PHIL KELLEY Immediate Past President DRAINAGE DISTRICT

Mike Yost, Pearland – 2019 (Chair) Kim Carroll, Beaumont – 2019 (EC) Don Carona, Orange – 2019 Chris Gallion, Clute – 2020 Andre’ McDonald, Sugarland – 2018 Alan Moore, Harlingen – 2020 J.L. Rose, Brookshire – 2018

GENERAL & ENVIRONMENTAL

Timothy Brown, Austin– 2020 (Chair) Martin Rochelle, Austin– 2019 (EC) Carolyn Ahrens, Austin– 2018 David Harkins, Austin– 2020 Robert M. Johnson, Dallas– 2019 Tom Ray, Waco– 2019 Ed Shackelford, Woodlands– 2018 GROUNDWATER Jim Conkwright, Lubbock– 2019 (Chair) Kathy Turner Jones, Conroe– 2018 (EC) Dirk Aaron, Belton– 2020 Joe B. Cooper, Stephenville– 2019 Drew Satterwhite, Denison– 2019 John Seifert, Houston– 2020 Brian Sledge, Austin– 2018 INDUSTRIAL James Kowis, Austin– 2019 (Chair) Glenn Lord, Freeport– 2018 (EC) Ricky Clifton, Houston– 2020 Gary Gibbs, Austin– 2018 Jimmie Schindewolf, Houston– 2019 Sara Tays, Austin– 2019 Paulina Williams, Austin– 2020

IRRIGATION

Sonny Hinojosa, San Juan – 2020 (Chair) Glenn Jarvis, McAllen – 2018 (EC) Troy Allen, Edcouch – 2019 Tom McLemore, Harlingen – 2020 Kyle Miller, Wichita Falls – 2019 Tito Nieto, Los Fresnos – 2019 Steve Walthour, Dumas – 2018

MUNICIPAL

Wayne Owen, Fort Worth – 2020 (Chair) Fiona Allen, Arlington – 2018 (EC) Fred Arce, San Antonio – 2020 Jun Chang, Houston – 2019 Heather Cooke, Austin – 2019 Denis Qualls, Dallas – 2019 Hope Wells, San Antonio – 2018 NAVIGATION & FLOOD CONTROL Lyn Clancy, Austin – 2018 (Chair) Tom Gooch, Fort Worth – 2019 (EC) Carolyn Brittin, Austin – 2020 Dan Buhman, Fort Worth – 2020 Patrick Brzozowski, Edna – 2018 Doug Caroom, Austin – 2019 Mary Beth Stengler, Anahuac – 2019 RIVER AUTHORITIES Kevin Ward, Arlington – 2019 (Chair) Walt Sears, Hughes Springs – 2019 (EC) Scott Hall, Beaumont – 2019 John Hofmann, Austin – 2020 David Montagne, Orange – 2020 Kent Satterwhite, Sanford – 2018 Cole Walker, Big Spring – 2018 UTILITY DISTRICTS John Chisholm, San Antonio – 2018 (Chair) Michael F. Thuss, San Antonio – 2019 (EC) Darrell D. Grubbs, Mt. Pleasant – 2018 Kelley Holcomb, Lufkin – 2019 Donna Howe, Austin – 2019 David Weidman, Mount Vernon – 2020 Christopher Wingert, Abilene – 2020

LEROY GOODSON General Manager Emeritus

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PAST TWCA PRESIDENTS Franklin B. Moon, Houston John H. Specht, Pocatello, ID R.H. “Bob” Parker, Houston Fred N. Pfeiffer, San Antonio Sam. F Collins, Newton Ronald J. Neighbors, LaGrange James P. Murphy, Angleton Danny F. Vance, Arlington Robert Lee Johnson, Dallas Robert J. Huston, Austin Con Mims, Uvalde Alan H. Plummer Jr., Fort Worth James M. Oliver, Fort Worth Robert Wagner, Crystal City A.T. “Tommy” Hebert Jr., Beaumont W.E. “Bill” West Jr., Seguin C.E. Williams, White Deer Wayne Halbert, Harlingen Robert H. Lloyd, Austin Joseph J. Beal, Bastrop Peggy W. Glass, Austin Gregory E. Rothe, Hondo John E. Burke, Bastrop Jerry L. Clark, Buna M. Jeff Taylor, Houston Sonia Lambert, San Benito James M. Parks, Wylie Luana Buckner, Hondo Phillip J. Ford, Waco Robert J. Brandes, Austin John W. Grant, Big Spring

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