Tex. Water Code § 12.052 — TX Code / Code wa / Chapter 12 / Section 12.052
§ 12.052. DAM SAFETY.
Status: in_force

(a) The commission shall make and enforce rules and orders and shall perform all other acts necessary to provide for the safe construction, operation, maintenance, repair, removal, and emergency management of dams located in this state. In performing the commission's duties under this subsection, the commission shall identify and focus on the most hazardous dams in the state.

(a-1) The commission shall require the owner or operator of a state-regulated dam that has a spillway with gates used to regulate flood waters to notify local emergency operation centers in downstream communities when spillway releases are made to regulate flood waters, according to the commission's emergency action plan guidelines.

(a-2) Emergency operation centers notified under Subsection (a-1) shall provide notice to the public when a release may contribute to flooding that may result in damage to life and property through all available means and shall include, at a minimum, the following information, if available:

(1) the names of the dam and reservoir;

(2) the communities downstream that may be impacted and estimated time of impact;

(3) the names of affected river basins and tributaries;

(4) the expected duration of the release;

(5) the level of potential flooding according to the National Weather Service River Forecast Center; and

(6) the roads or bridges that are expected to be affected.

(a-3) A notice provided under Subsection (a-2) must include the following disclaimer: "Actual flood conditions may vary significantly from the alert based on new or changed conditions; advanced alerts of changed conditions may not be possible."

(a-4) Notwithstanding any other defense or immunity that may apply, a notice provided under Subsection (a-1) or (a-2) may not be considered an admission of liability and may not be used as evidence in any suit related to the releases that are the subject of the notice.

(b) Rules and orders made by the commission shall be made after proper notice and hearing as provided in the rules of the commission.

(b-1) The commission may enter into an agreement with an owner of a dam who is required to reevaluate the adequacy of an existing dam or spillway. The agreement may include timelines to achieve compliance with the commission's design criteria and may authorize deferral of compliance with the criteria, as appropriate.

(c) If the owner of a dam that is required to be constructed, reconstructed, repaired, or removed in order to comply with the rules and orders promulgated under Subsection (a) of this section wilfully fails or refuses to comply within the 30-day period following the date of the commission's final, nonappealable order to do so or if a person wilfully fails to comply with any rule or other order issued by the commission under this section within the 30-day period following the effective date of the order, he is liable to a penalty of not more than $5,000 a day for each day he continues to violate this section. The state may recover the penalty by suit brought for that purpose in the district court of Travis County.

(d) If the commission determines that the existing condition of the dam is creating or will cause extensive or severe property damage or economic loss to others or is posing an immediate and serious threat to human life or health and that other procedures available to the commission to remedy or prevent the occurrence of the situation will result in unreasonable delay, the commission may issue an emergency order, either mandatory or prohibitory in nature, directing the owner of a dam to repair, modify, maintain, dewater, or remove the dam which the commission determines is unsafe. The emergency order may be issued without notice to the dam owner or with notice the commission considers practicable under the circumstances. The notice does not have to comply with Chapter 2001, Government Code.

(e) If the commission issues an emergency order under authority of this section without notice to the dam owner, the commission shall fix a time and place for a hearing which shall be held as soon as practicable to affirm, modify, or set aside the emergency order. The notice does not have to comply with Chapter 2001, Government Code. If the nature of the commission's action requires further proceedings, those proceedings shall be conducted as appropriate under Chapter 2001, Government Code.

(e-1) The commission shall exempt an owner of a dam located on private property from meeting requirements related to dam safety if the dam:

(1) at maximum capacity impounds less than 500 acre-feet;

(2) has a hazard classification of low or significant;

(3) is located in a county with a population of less than 350,000; and

(4) is not located inside the corporate limits of a municipality.

(e-2) Notwithstanding Subsection (e-1), an owner of a dam shall comply with operation and maintenance requirements established by commission rule.

(e-3) For purposes of this subsection, the emergency management director for a municipality or county is the person designated that political subdivision's emergency management director by Section 418.1015, Government Code. The commission shall provide a report of a dam that has a hazard classification of high or significant to:

(1) the emergency management director, or the emergency management director's designee, for the municipality or county in which the dam is located; and

(2) the executive director or equivalent position of each council of government or local or regional development council for the area in which the dam is located.

(e-4) The commission shall make a report as described by Subsection (e-3) not later than the 30th day after the date of the designation of a dam as a high or significant hazard classification. The report must include the hazard classification and condition status for each dam that has had a change in hazard classification located in the political subdivision.

(e-5) The commission shall provide a biannual report including condition status and other information on each dam with a hazard classification of high or significant to the emergency management director, or the emergency management director's designee, of each municipality and county and the executive director or equivalent position of each council of government or local or regional development council in which a dam included in the report is located.

(f) Nothing in this section or in rules or orders made by the commission shall be construed to relieve an owner or operator of a dam or reservoir of the legal duties, obligations, or liabilities incident to ownership or operation.