Legislative Review of Proposed Natural Resource-Related Laws in the 87th Texas Legislature

texas capitol The 87th Legislative session of the Texas Legislature, which began January 12, 2021, has been anything but typical. As the first legislative session since the emergence of Covid-19, the session looked and functioned differently. While the pandemic affected priorities, many of the proposed bills pertained to environmental, agriculture, water resources, and energy issues. The record-breaking winter storm in February 2021 created an additional influx of bills to address infrastructure weaknesses exposed by the storm.

Professor Jim Bradbury, who has served as an expert advisor on various legislative initiatives for many years, commented that Covid-19 Restrictions have “really slowed down the legislative process” and the February storm put the planned hearings behind schedule.

The following is a summary of bills that affect energy, environmental, or natural resource-related issues currently before committees. New bills are introduced daily and many will never make it to the chamber floor for a vote. Many bills, even if passed in both chambers, will likely not be passed in their current form.

AGRICULTURE

Both the Texas House Ag & Livestock Committee and the Texas Senate Water, Agriculture, and Rural Affairs Committee have numerous proposed legislation before them, including the following:.

HB 222 attempts to limit liability for “burn bosses.” Setting intentional fires is essential to manage and prevent wildfires, stabilize rangeland, and balance ecosystems. Burn bosses are individuals tasked with planning, organizing, and executing the intentional burns. As of now, burn bosses may be held liable when certain things go awry during burns. A properly trained burn boss knows to take many safety measures into account, such as burning during low risk, rainy seasons, setting up equipment to contain flames to the intended areas. HB 222 offers more protections for burn bosses by limiting liability if they are properly trained and licensed.
HB 543 amends TAC Sec. 251.007 by defining working animals and restricting political subdivisions from placing regulations that terminate or place undue hardship on jobs that require working animals.
HB 580 would require a nursery dealer to include a written warning for consumers if the plant contains cycasin, which can be fatal if ingested by dogs.
HB 1070 and accompanying SB 395 amend an existing law restricting those allowed to apply pesticides to reduce the amount of overapplied and improperly applied chemicals. These restrictions include licensing, training, and education. The proposed amendment expands these requirements by allowing an unqualified individual who is overseen by a licensed individual to apply pesticides. At this point, this is the only bill that has made it out of committee and is set to be heard by the House.
HB 1266 and SB 677 amend Sec. 61.007 of the Texas Agriculture Code to restrict the sale of any seed labeled as “certified” if it is not properly authorized, and a breeder may not hold themselves as an authorized breeder of seed if they are not properly registered.
HB 1371 extends the Trade Agricultural Inspection Program from 2021 to 2025. The most recent version of the Texas Agriculture Code Section 12.050 requires that the Texas Agricultural Department furnish reports on the effects and wait times of the Program to the legislature.
HB 1480 and SB 472 create a criminal punishment for someone who trespasses on agricultural land with the intent to harm, destroy, or steal data, animals, crops, or equipment. This proposal hopes to increase punishment and deter crime aimed at animal and food production operations.
HB 1686 is designed to protect homeowners in residential neighborhoods by prohibiting city ordinances and homeowners association covenants that prevent homeowners from growing fruits and vegetables or keeping a limited number of small animals, such as domestic birds, or rabbits, or maintaining beehives. This protection is limited to single-family residential lots and still allows municipalities to enact other reasonable restrictions.
HB 1830 attempts to allow the Texas Animal Health Commission to determine reportable diseases. Currently, a list of diseases is codified in Sec 161.041 of the Texas Agriculture Code. To amend that list requires legislative process, which is tedious, time consuming, and restricted to legislative sessions. Moving this power to the Commission is intended to speed up the process in the event that new diseases arise.
SB 563 excludes elk from being classified as exotic livestock for purposes related to the Texas Ag Code and the Texas Parks and Wildlife Code.
SB 634 protects the confidentiality of landowners who choose to participate in a state program to manage or eradicate invasive species or receive money to manage or eradicate invasive species. SB 634 is currently out of committee.
SB 731 seeks to create a cooperative agreement with higher education to conduct plant pest detection and eradication as a preventative measure. Universities are invited to apply to receive grants to fund the research and to prevent and mitigate the effects of newly introduced invasive plant pests and diseases.

ENERGY

Energy is a pillar of the Texas economy and, like agriculture, is influenced by different types of legislation including those related to water, natural resources, and the environment. Below are some of the bills currently before committees that touch on the energy sector:

HB 632 and SB 213 seek to establish an advisory committee of experts to assist with the TexNet seismic monitoring program, which is already in place. The committee would be comprised of nine members from government and the private sector with technical expertise in fields related to seismology, such as geomechanical engineering or reservoir engineering.
HB 1284 and SB 450 propose that penalties incurred under Sec. 382.502 of the Health and Safety Code be deposited into the anthropogenic carbon dioxide storage trust fund. Sec. 382.502 regulates the injection and geologic storage of carbon dioxide.
HB 1452, HB 1521, and SB 388 attempt to eliminate flaring as a practice commonly used in the extraction of natural gas. When excess natural gas is extracted, burning the excess is often cheaper for producers than storing or transporting it, despite the numerous environmental concerns related to the practice. 1452 proposes voluntary, incentive-based programs or interim goal setting, but still allows flaring for the purpose of safety or emergency. 1521 and its companion SB 388 outline banning flaring on University of Texas lands.
HB 1683 and SB 1734 prohibits state agencies from assisting federal agencies and officials engaged in the enforcement of federal regulations of oil and gas production within the state of Texas.
SB 367 attempts to prevent risks and harmful effects of “well blowouts” in oil and gas production. If an applicant has drilled or operated an adjacent well or is connecting to the formation of another existing well, the applicant must disclose this information in their application for permit. SB 367 is out of committee.
SB 771 and HB 2006 help notify the public of pending permits for commercial surface disposal of oil and gas related waste by specifically notifying the river authority or groundwater conservation district of the land where the disposal well is located.
SB 772 and HB 2201 propose the Railroad Commission consider historical flooding patterns in the permitting of disposal pits used in oil and gas production.
HB 242 requires facilities regulated by the Railroad Commission to submit a water pollution abatement plan if the plant is located in the recharge zone of the Edwards Aquifer.

WATER

Water is a major issue for Texas as populations boom, while agriculture and oil and gas producers also require large amounts of water. As a result, existing limited groundwater and surface water resources are becoming increasingly important. The Senate Water, Agriculture, and Rural Affairs Committee and House Natural Resource Committee handle many of the water related legislation.

According to the Interim Charges of both the Senate Water, Agriculture, and Rural Affairs Committee and the House Natural Resource Committee, both the House and Senate are prioritizing the creation of the Texas Produced Water Consortium (see SB 601), protecting Texans from burdensome laws restricting reuse water and increasing information and research regarding reuse water, increasing transparency between groundwater conservation districts and their users, and continuing to support flood mitigation projects and planning. While there are many bills currently in committee addressing prioritized items, there are a variety of other bills aimed at increasing penalties for water pollution, increasing access to information regarding water quality and other data recorded by the state or by research entities, and other water related issues.

Some of the proposed water-related bills before the Committees are:

SB 126, SB 900, and HB 711 help ensure the efficiency and safety of above ground water storage tanks. The proposed amendment requires safety of such tanks in the aftermath of natural disasters and any event that may be declared a state of emergency to be considered in the construction phases.
SB 152, HB 666, and HB 668 propose an amendment to the section of the Texas Water Code that regulates groundwater conservation districts (GCDs) by allowing individuals with ownership rights to groundwater in a GCD to petition for a change of rules. This Bill also outlines the procedures and purposes that would allow a rule change, which is at the discretion of GCDs. SB 152 also outlines a notice requirement for surface water permit applications and surface water permit amendments. SB 152 is out of committee and will go before the Senate during this session.
SB 307 is aimed at increasing water availability in growing municipalities by addressing the transportation of water across two or more county lines via pipeline. Under this proposal, pipelines would be authorized to transport potable water across multiple counties for wholesale water purposes, but this authority would only be applicable if the party transporting the water is a local government corporation.
SB 366 sets a minimum penalty that may be assessed by TCEQ of $250 per day for violations of Chapter 7, Subchapter C of the Texas Water Code. This increase to a $250 minimum penalty is designed to discourage people from polluting, or releasing hazardous waste without a permit to pollute, by creating a baseline penalty.
SB 531 and HB 1904 allow the Texas Water Development Board to use the water infrastructure fund to support the financial assistance account of the TWDB Fund II for purposes outlined in the rules governing Fund II.
SB 600 requires that each river authority report an inventory of dams as well as the cost, operation, and maintenance of the dams in their jurisdiction to the Texas Commission on Environmental Quality. SB 600 is out of committee and will go before the state senate this session.
SB 601 and HB 3096 create a consortium run by Texas Tech University that focuses on educating and collecting resources on produced water. The board of the consortium will consist of representatives of the Railroad Commission, State Energy Conservation Office, TCEQ, Texas Economic Development and Tourism Office, and the Texas Water Development Board. SB 601 is out of committee and will go before the state senate for a vote this session.
SB 656 creates the Val Verde County Groundwater Conservation District, defines its purpose, outlines its jurisdiction, establishes the directors, and outlines directors’ duties. The bill provides several reasons for enacting the groundwater conservation district. They include: (1) the recharge, conservation, protection, and prevention of the waste of groundwater; (2) control of subsidence caused by unreasonable groundwater withdrawal; (3) regulation of groundwater transportation outside of the district; (4) regulation of groundwater production so as to protect spring and base flow; (5) maintaining sufficient river flows during droughts and water shortages; (6) development of empirical groundwater flow models to better inform groundwater management; (7) implementation of a permit structure for groundwater withdrawal to mitigate impact on spring flow, base flow, and drawdown. The bill highlights that the district’s creation is for public use and benefit, and that the creation of the district will benefit land and property included within its boundaries.
SB 669 and HB 1866 amend the current operation of the TWDB by requiring the Board to publish data related to water usage for residential, commercial, agriculture, industrial and institutional sectors. SB 669 is out of Committee and will be heard by the Senate this session.
SB 699 and HB 2019 propose the creation of a committee to study the effects and safety of converting surface mine pits and quarries to water reservoirs. This conversion is an effort to increase surface water availability because the state’s surface water is currently overallocated.
SB 905 and HB 4161 propose the creation of a regulatory guidance manual for the public to explain issues relating to the reuse of potable wastewater. SB 905 is out of committee.
HB 152 requires scientific inquiry and analysis of current and projected groundwater production and assesses the effects of the issuances of withdrawal permits on groundwater quality.
HB 271 requires an agency to perform a survey of a watercourse or obtain an opinion of gradient boundary survey before a state agency may make a ruling on the navigability of a watercourse. The agency would also be required to notify landowners abutting the watercourse and hold a meeting.
HB 1801 and SB 1441 extends the well metering exemption for MOUs supplying military installations to include permitting withdrawals from the Edwards Aquifer.
HB 1874 and SB 673 creates a technical assistant position to help advise the interregional planning council of the TWDB.
HB 1143 requires online publication of the results regarding pathogen indicators in lakes, bays, springs, rivers, streams, creeks, and other surface waters used for recreational purposes.

ENVIRONMENTAL

A major focus for both the House Environmental Regulation Committee and the Senate Natural Resources Committee has been concrete batch plants and concrete processing. Concrete production has notable environmental and health related consequences, but continued expansion of cities and population growth has strained demand. Concrete plants have opened in the middle of communities, rarely staying on the outskirts of towns and cities as residential communities continue to creep outwards. Proposed bills related to concrete plants tend to focus on measures to protect air quality.

For example, while concrete plants are exempt from municipal zoning regulations, HB 50 would require them to comply with certain statutory permitting regulations that address environmental concerns, such as particulates in the air. HB 289 and HB 1267 would allow non-residents within 880 yards of a proposed concrete plant to request a meeting regarding a permit to operate a concrete facility pending with TCEQ. This would allow more people to initiate a hearing and still give TCEQ the ability to outline who qualifies as a representative for concerned groups. HB 416 and SB 952 require certain information to be disclosed during the process of permitting concrete batch plants, such as distance between the proposed facility and schools or homes. This has the same effect as HB 289 and HB 1267 in allowing more information to be made available for public comment and contest. On the other hand, HB 1786, HB 1627, SB 368, and SB 1350 take a much more direct approach by restricting the issuance of air quality permits for concrete plants located in or near a municipality.

For similar reasons, committees in both the House and Senate are prioritizing bills aimed at environmental justice. For example, HB 714 creates an environmental justice advisory council to help state agencies and local governments address environmental justice issues. The proposed council will be made of individuals appointed by government agencies like Health and Human Services Commission and the TCEQ. Additionally, HB 1191 and HB 1294 create an Office of Environmental Justice within the TCEQ to allow individualized focus on exclusively environment justice related issues.

Other environmental related bills before House and Senate committees include:

HB 631 proposes significant amendments to statutory regulation of hazardous waste facilities and solid waste facilities. It reduces the process of permitting by not requiring an applicant to obtain permits for citing, constructing, or operating such facilities. It also allows permits to be issued at the state and local level.
HB 896 and HB 897 attempt to increase inspection and maintenance requirements at permitted oil and gas facilities. This proposal seeks to reduce environmental related hazards of poorly maintained facilities and to help track the effects of certain practices that would prevent dangerous practices before the damage becomes too difficult to mitigate.
HB 960 clarifies the Texas Water Code Sec. 5.554 by outlining where requested public meetings regarding water permitting by the Texas Commission on Environmental Quality (TCEQ) can take place.
HB 963 and SB 645 make several amendments to the natural gas vehicle grant program under the Texas Health and Safety Code Sec. 394.003. The changes adjust the definitions of the different types of vehicles to which the statute applies, and also requires that any replacement used motor vehicle must be newer than 2017 at the time of the grant application. Sec. 394.007 also requires the grant award to be at least 80% of the cost of the vehicle.
HB 968 requires the TCEQ consider all public comments submitted during the public comment period of a water permit application.
HB 1044 proposes the creation of the Texas Climate Change Mitigation and Adaptation Commission.
HB 1680 and SB 665 proposes that federally owned lands broken up into tracts should be considered separate parcels of land for the sake of sewage disposal system permitting.
HB 1721 requires annual pollution studies to measure air contaminants in residential areas and report the studies to the TCEQ.
HB 1820 and 1821 proposes certain climate change reporting requirements for the regulation, monitoring, and enforcement of matters under the jurisdiction of the Texas Commission on Environmental Quality. The Bill also authorizes the assessment or increase of civil and administrative penalties.
SB 87 proposes a cumulative effect perspective when evaluating the air contamination in the permitting process by the TCEQ.
SB 125 adds hydrofluorocarbons to Class I and Class II substances that may be regulated in consumer products.
SB 306, HB 1949, 1956, HB 2017, and HB 4178 seek to require departments like TCEQ and Texas Department of Agriculture to consider variability in strategic plans with regard to climate change related environmental effects like changes in weather patterns, water availability, and climate variability.
SB 364 and SB 684 both seek to repeal certain affirmative defenses available during enforcement actions related to “emission events.” Emission events are instances of excess pollution by permitted polluters.
SB 365 requires an environmental justice report when certain facilities apply for building permits through TCEQ. Facilities located in or near environmental justice communities. Permitting can be for new facilities or expanding existing ones. The report must include demographic information and is designed to prompt research by the Commission before a permit is issued.
HB 1544 disbands the agriculture exemption and ad valorem tax breaks associated with operating sand mines on lands that overlie the Carrizo Aquifer. It additionally outlines provisions to protect surface water, groundwater, wildlife habitats, agricultural lands, and wetlands. It also provides notice requirements and certain permitting and authorization costs.

LAND USE

The House Land and Resource Management Committee’s main concern is the use and powers relating to eminent domain. This session several proposed bills are on the table, as well as Constitutional Amendments relating to who may exercise eminent domain and for what purposes. Right now, the Texas Railroad Commission has the authority to exercise eminent domain on behalf of private entities. HB 448 allows property owners to file complaints against some entities regulated by the Texas Railroad Commission if there are instances of misconduct in the due process during eminent domain proceedings.

HB 901, on the other hand, lays out a set of procedures and requirements for private entities with the authority to acquire land through eminent domain to help screen out entities improperly acquiring private land through eminent domain. HB 902 does not seek to prevent eminent domain or limit its uses. Instead, it creates an ombudsman office within the Attorney General’s Office to provide information for landowners whose property may be acquired by eminent domain.

HJR 93 takes a different approach in attempting to preserve private ownership. This Constitutional Amendment amends the language in Sec. 17(b), Article I of the Texas Constitution to remove the language allowing economic development as a reason for “public use.” HJR 92 proposes an amendment to Sec. 52j of Article III in the Texas Constitution to allow the opportunity for the previous owner of a property to re-purchase their property taken through eminent domain. It also requires the government to offer to sell the property back to the owners or their heirs. This does not prevent eminent domain actions, but it does allow the re-acquisition of land taken through eminent domain.

Some of the other land use related bills before committees are:

HB 452 creates a requirement that the General Land Office conduct a study to determine feasibility of implementing mechanisms through which a governmental entity could acquire real property with the purpose of conveying the property to developers.
HB 1475 and SB 631 outlines a set of guidelines to consider when issuing zoning variances based on unnecessary hardship.
HB 1564 and SB 856 adds a section F to Chapter 232 of the Local Government Code that provides direction for municipalities in the handling of abandoned, unoccupied, and undeveloped platted lots in certain counties.
HB 1879 increases the burden to repurchase land from a condemning entity by changing the minimum requirements from two recognized actions to three recognized actions, and removing two of the actions recognized for the process.
HB 1897 and 1338 require municipal offers for annexation to disclose that the landowner is not required to enter the agreement, describe the procedures, and reference the applicable law.

The House Committee also has a number of bills on the table aimed at division of municipal resources, annexation of land into municipalities, and the regulation and creation of cemetery lands.

In addition to all the bills discussed, new bills continue to be filed daily. Many of these bills are not yet assigned to committees. To see an updated list of all bills that are filed with the Texas House and Senate and their status with committees and committee hearings, please see here.

All of the bills highlighted were proposed as of March 2021. Several have been set for hearings, but only a few are out of committee. All bills are subject to change as none have been passed at this time.