Emergency Action Plans and Legal Issues 1 A llen B oone H umphries R obinson LLP February 12, 2013

2  A political subdivision of the State of Texas, like a County or School District.  Created over a limited area for the following purposes: ◦ To construct and maintain levees and other improvements on, along, and contiguous to rivers, creeks and streams; ◦ To reclaim lands from overflow from these streams; ◦ To control and distribute the waters of rivers and streams by straightening and improving them; ◦ To provide for the proper drainage and improvement of reclaimed land.

3  LIDs are created under the Texas Water Code, Chapter 57.  A majority landowner petitions the Commissioners Court for creation. City consent is required when creating a new LID. The County conducts a hearing after petition to determine whether to create the LID.  Districts under Chapter 57 have all the powers under Article XVI, Section 59 of the Texas Constitution.  LIDs are regulated by the Federal government, the TCEQ, the Texas Attorney General (Public Finance Division), Cities, Counties, and the EPA.  LIDs are subject to the Open Meetings Act and Public Information Act.  Board members are subject to conflicts of interest, nepotism, penal code provisions, ethics guidelines, gift laws, etc.

 The LID may enter into all necessary and proper contracts and employ all persons and means necessary to purchase, acquire, build, construct, complete, carry out, maintain, protect, and, in case of necessity, add to and rebuild all works and improvements necessary or proper to fully accomplish the purposes of the district, including the reclamation of land within the District.  The powers granted are subject to supervision and direction of the TCEQ.

 The Board of the LID shall also have the right to purchase all materials, supplies, equipment, vehicles, and machinery needed by the District to perform its purposes.  A district may purchase property from any governmental entity by negotiated contract without the necessity of securing appraisals or advertising for bids.  A district may act jointly with any other person or entity, private or public, whether within the State of Texas or the US, in the performance of any of the powers and duties permitted by the code

 The District may adopt and enforce reasonable rules and regulations to regulate the design and construction of improvements and facilities that outfall, connect or tie into district improvements and facilities.  A person who wrongfully or purposely cuts, injures, destroys, or in any manner impairs the usefulness of a levee or other reclamation improvement, is guilty of a misdemeanor and upon conviction is punishable by a fine of not less than $100 nor more than $1,000 or by confinement in the county jail for not more than one year or by both.

 Bidding requirements apply to all construction contracts. However, the LID is not required to advertise for bids certain contracts for the repair of district facilities if the scope or extent of the repair work cannot be readily ascertained or if the nature of the repair work does not readily lend itself to competitive bidding.  If the LID experiences an emergency condition that may create a serious health hazard or unreasonable economic loss, the district may negotiate limited duration contracts to make the repairs.

 Remember LIDs are created as the drainage arms of the County.  Each LID is different in: ◦ ETJ/City Governance ◦ Stage of Development ◦ Number of Residents ◦ Amount of Capital for Resources ◦ Proximity to River or Flooding  So one solution/EAP/O&M doesn’t work for all the LIDs in the County

 In order for a levee to be accredited by FEMA and shown on a Flood Insurance Rate Map as providing protected from the base flood, a levee must first be certified by a Professional Engineer or a Federal Agency that designs levees.  Levees are accredited when levee owners provide the appropriate data and documentation demonstrating compliance with 44 CFR in the following five areas: ◦ General ◦ Design ◦ Operation Plans ◦ Maintenance Plans ◦ Certification Requirements

 The Operations and Maintenance (O&M) plans must include: ◦ All closure devices or mechanical systems for internal drainage, whether manual or automatic, must be operated in accordance with an officially adopted operation manual. ◦ The LID must describe the documentation of the flood warning system that will be used to trigger emergency operation activities and demonstrate that sufficient flood warning time exists for the completed operation of all closure structures, including necessary sealing, before floodwaters reach the base of the closure. ◦ A formal plan of operation, including specific actions and assignments of responsibility by individual name or title. ◦ The levee system must be maintained according to the District’s O&M Manual.

 Many times the USACE actually builds levees for communities. Those are considered federal levees. If the community locally builds the levee, without the USACE’s help, those are “non-federal” projects.  The USACE has no required jurisdiction for non-federal levees.

 RIP (PL84-99) is a program established by USACE that provides for inspections of constructed Federal and non-Federal projects damaged by floods and storms.  Financial assistance for levee rehabilitation is limited to repairs or restoration of the project’s pre-disaster condition and level of protection.  An initial eligibility inspection must be performed by USACE and subsequent maintenance inspections are required.

 The USACE Inspection Report (to obtain status in RIP) asks the following questions: ◦ Does the District maintain a stockpile of sandbags, shovels, and other flood fighting supplies which will adequately supply all needs for the initial days of a flood fight? ◦ Does the District have a written specific flood response plan and a solid understanding of how to operate, maintain, and staff the District’s system during a flood? ◦ Does the District maintain a list of emergency contact information for appropriate personnel and other emergency response agencies?

 Local government and/or flood control districts have the responsibility of maintaining a supply of sandbags that is adequate to cover anticipated emergencies. USAC maintains a limited stockpile of sandbags and other flood fighting materials that are intended to be available to supplement the flood emergency situation. USACE should not be considered as the supplier of first resort for sandbags.

 It is the District’s responsibility to stockpile and maintain the necessary supplies and equipment needed to respond to a typical high-water event. ◦ Sandbags ◦ Plastic Sheeting ◦ Shovels/Sandbag filling machines ◦ Emergency lighting ◦ Communication System (two-way radios) ◦ Riprap for erosion ◦ Flotation Vests ◦ Pumps ◦ Sources of Borrow Material

 Hazard Identification and Analysis  Define the scope of the emergency response authorities and the potential missions  Specify what, when, where, and how.  Public Sponsor responsibility: ◦ O&M of existing flood damage reduction structures ◦ Flood exercises and flood fight training ◦ Prepare disaster plans ◦ Maintain stocks of emergency supplies (sandbags, pumps, rock, etc.) sufficient for meeting recurrent or routine problems.

 Flood Preparedness Plans should include the following: ◦ Organizational Chart/Roster of Emergency Notification ◦ List of Important Project Features (low areas, areas subject to boils, alternate access points to the levee) ◦ Flood Response Plan (outline items that need to be done during a flood fight and when)  This Plan shouldn’t be long and wordy and should be reviewed annually and after each flood event

 Address actions that need to be done during a flood fight, when these actions need to be done, and who performs these activities.  Identification of equipment and supplies on hand, staging areas and potential borrow sites.  Emergency notification procedures and phone contacts.  Known problem areas.

 Identify known problem areas: ◦ Sandboils ◦ Seepage ◦ Recent Construction Areas ◦ Weak spots/low spots of the levee  Personnel Rosters  Levee Closures  Supplies & Equipment  Impacted Utilities  Road Closures  Communication means and options

 USACE recommends holding a training or flood control exercise once a year  At a minimum it should include ◦ Physical operation of project features such as sluice gates ◦ Notification of emergency personnel ◦ Testing communications ◦ Mobilization of monitoring teams ◦ Basic flood fighting techniques, such as how to ring a sandboil ◦ Coordination and control (among volunteers, patrols, operators, and nearby levee districts) ◦ Dissemination of information to the public

 Exercises are designed to: ◦ Improve individual performance ◦ Let individuals know what their roles could include ◦ Improve plans ◦ Identify resource and/or procedural gaps ◦ Improve coordination ◦ Clarify roles and responsibilities ◦ Gain buy-in by staff of emergency response program  After Exercise ◦ Don’t forget to evaluate and change your plans after the table-top exercise to edit what went well and what needs improvement.

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