By Bruce Barr, CFM
TAC County G.I.S. Analyst
On Sept. 26, the House Committee on Environmental Regulation, chaired by Representative Wayne Smith, heard testimony regarding the implementation of dam safety rule changes passed during the last legislative session. The interim charge states that the committee shall:
“Examine the impact on dam safety of provisions passed in HB 2694 (82R) and develop recommendations, if any, regarding risk to downstream property and life.
Language in House Bill 2694 amends Texas Water Code (TWC) § 12.052 to address which dams Texas Commission on Environmental Quality (TCEQ) Dam Safety Section focused their attention on, the dam’s inspection period and allows exemptions to these, and other regulations for qualifying dam owners. HB 2694 also allows TCEQ to work with dam owners to develop plans for the implementation of rehabilitation and maintenance programs. At the request of some concerned TCEQ Commissioners, the Committee on Environmental Regulation requested input from TCEQ staff and subject matter experts to see whether to recommend the continuation of these rule exemptions.
A dam must meet all conditions in TWC § 12.052(e-1) to qualify for the exemption:
- Privately Owned
This does not include dams owned by municipalities, water districts, utility companies, soil and water conservation districts, counties, or state agencies.
- Maximum capacity less than 500 acre-feet
This is the capacity at the top of the dam as defined in 30 TAC §299.2(36). If an owner does not agree with the maximum capacity as recorded in the Dam Safety Program’s Inventory of Dams, the owner may submit an evaluation of the capacity conducted by a professional engineer, licensed in the State of Texas, or a registered public surveyor, also licensed in the State of Texas. The Dam Safety Program will review the evaluation and provide a written response within 45 days of receipt.
- Hazard classification of low or significant
30 TAC §299.14 states that the executive director shall classify dams for hazard based on either potential loss of human life or property damage, in the event of failure or malfunction of the dam or appurtenant structures, within affected developments, that are existing at the time of the classification. For additional details on classifications see “Dam Classifications” below.
- The dam must be located in a county with a population of less than 215,000
Population based on the 2010 U. S. Census.
- The dam must be located outside the city limits
The city limits are based on the most current municipal information (2011). As city limits frequently change, an owner may submit additional information to the TCEQ for consideration.
Even though counties cannot claim this exemption for the dams they own or operate,by the nature of the geographical requirements for exemption, all the dams that can claim exemption fall within the unincoporated area.
Currently, TCEQ ranks dams as high, significant, or low hazard, depending on the potential for the loss of life, or property in the event of dam failure.
(A) no loss of human life expected (no permanent habitable structures in the breach inundation area downstream of the dam); and
(B) minimal economic loss, located primarily in rural areas where failure may damage occasional farm buildings, limited agricultural improvements, and minor highways (classified by the Texas Department of Transportation as rural collector or rural local roads, including county roads and Farm-to-Market roads not used to provide service to schools).
(A) loss of human life possible (one to six lives or one or two habitable structures in the breach inundation area downstream of the dam); or
(B) appreciable economic loss, located primarily in rural areas where failure may cause damage to isolated homes; damage to secondary highways (classified by the Texas Department of Transportation as rural major collector roads, including Farm-to-Market roads used to provide service to schools), damage to minor railroads; or interruption of service or use of public utilities, including the design purpose of the utility.
Loss of life expected (7 or more); economic loss excessive.
Wes Birdwell, P.E., representative of the Texas Society of Professional Engineers; John Wolfhope, P.E., from Freese and Nichols LLP; and Warren Samuelson, P.E., manager of the TCEQ Dam Safety Section, were asked to provide their recommendations regarding the impact of HB 2694. Birdwell began testimony by stating that out of the roughly 655 significant hazard dams in Texas, 195 fall within the exemption guidelines.
Both Birdwell and Wolfhope recommended that an analysis of those 195 dams be made to determine their true risk to downstream residents and structures. They also suggested that once the threat is identified, information is passed on to local governments so they can be made aware of the threat, make appropriate decisions when allowing downstream development and assist the dam owner in getting the funds necessary to rehabilitate and maintain the dam at a safe standard.
A key point that Birdwell stressed was the current paucity of available federal dollars and the expectation that those matching infrastructure grants will totally disappear within the next few years.
In his testimony, Warren Samuelson related the history of the dam safety program in Texas and how the TCEQ Dam Safety Section has implemented the elements of HB2694. One of Samuelson’s key points was how the agency was working with dam owners to achieve a certain level of cooperation and dam safety awareness without challenging an owner’s property rights, or appearing over officious.
Representative Smith asked if it were true that many land buyers, who subsequently become dam owners, purchase their property without the knowledge of a dam’s presence, or its history. All three panelists agreed that was this case. Representative Burnam later asked if there was any requirement in Texas that a dam’s presence be noted when a property is purchased to which Samuelson responded that he thought not.
In closing, all three experts agreed that there were risks in allowing exemptions to dams that haven’t been inspected for their true hazard potential to be exempt from certain rules and that all dam risks should be communicated to the local government.