Legislature Establishes New Reporting Requirement for Public Water Systems

by Nathan E. Vassar and Ashley N. Rich

Public Water Systems (“PWS”) in Texas now have a new reporting obligation during times of certain outages of water service. Added during the regular 88th Legislative Session by House Bill 3810 (became effective September 1, 2023), Texas Health and Safety Code Subsection 341.033(i)(6) requires non-industrial PWSs to give immediate notice to the Texas Commission on Environmental Quality (the “TCEQ”) in the event of unplanned conditions that have caused a public water supply outage or the issuing of an advisory or notice. This subsection applies to all PWSs that supply water for retail customers. Based upon legislative history, the intention of the bill is to ensure that if scenarios such as winter storms, hurricanes, or other natural disasters impact the availability of drinking water supplies, TCEQ and the Texas Division of Emergency Management are able to position themselves to handle an emergency response.

Under this new requirement, PWSs must submit a report to TCEQ if there are unplanned conditions that: (1) cause a public water supply outage and/or
(2) result in the PWS issuing a do-not-use advisory, do-not-consume advisory, or a boil water notice. This new requirement does not negate any previous requirements and in addition to this new TCEQ notification, PWSs are still required to (1) issue a do-not-use advisory, do-not-consume advisory, or boil water notice to the public as soon as possible, but no later than 24 hours after notice requirements, (2) submit a copy of that notice to the TCEQ within 24 hours of delivery to the public, (3) submit a certificate of delivery to the TCEQ within 10 days, and (4) submit a copy of the rescind notice, a rescind certificate of delivery, and a copy of the microbiological samples to the TCEQ within ten days of rescinding the notice.

If a PWS encounters unplanned conditions that cause a water supply outage or necessitate the issuing of an advisory or notice, it can satisfy these new requirements by reporting online using the new “Immediate Notification Form” which can be found here: https://www.tceq.texas.gov/drinkingwater/boilwater.html. In order to complete the form, a PWS will need to be able to identify the issue its system is facing, the number of connections affected, the date of the incident, the name and ID number for the PWS, and the primary county affected, and provide contact information.

While this statute became effective September 1, 2023, questions remain surrounding what types of issues constitute “unplanned conditions.” There is no immediate guidance on what will qualify as an outage or if there is a threshold number of customers affected; however, different scenarios may drive different decisions on whether the new notice is merited. A rulemaking will commence either in late 2023 or early 2024 and Lloyd Gosselink will be actively involved in the TCEQ work groups addressing these questions and will participate in such rulemaking process. Until those rules are developed and defined, it is important to reassess internal reporting processes to make sure that the HB 3810 notice is followed and implemented during emergency outage events.

Nathan Vassar is a Principal in the Firm’s Water, Compliance and Enforcement, Litigation, and Appellate Practice Groups. Ashley Rich is an Associate in the Firm’s Water Practice Group. If you have any questions or would like additional information related to this article or other matters, please contact Nathan at 512.322.5867 or nvassar@lglawfirm.com, or Ashley at 512.322.5816 or arich@lglawfirm.com.