Hurricane Harvey Response Page

To support our friends and colleagues impacted by Hurricane Harvey, we have identified a team of our attorneys who will be available over the next several weeks to answer immediate questions and provide support in our practice areas for the crucial initial stages of the recovery effort, on a pro bono basis. Below are some common topics and things to keep in mind for governmental entities, businesses, and industries moving forward with recovery. Contact information for our Hurricane Harvey Response Team members supporting each topic is provided below, and we are happy to help answer questions during this important time on a pro bono basis.

Governmental Entity Recovery Funding  (Jose de la Fuente: (512) 322-5849, jdelafuente@lglawfirm.com; Jamie Mauldin: (512) 322-5890, jmauldin@lglawfirm.com).

Governmental entities are eligible for FEMA funding for a variety of activities, including cleanup/debris removal, emergency protective measures such as search and rescue, shelter operations, overtime pay, provision of essentials, as well as repair of critical infrastructure, and similar items. Proper documentation of expenditures is necessary now, even before formal approval by FEMA, so keep records of all potentially eligible expenses (be over-inclusive for the time being, and sort out eligibility later). An overview of the types of eligible projects and the process for entities applying for FEMA aid can be found in FEMA’s Public Assistance Applicant Handbook.

New Information – September 6, 2017

FEMA granted Governor Abbott’s request for Community Disaster Loan assistance for Texas localities impacted by Hurricane Harvey.  Texas cities currently recovering from the storm can now receive funding to help maintain their operating budgets and continue full operations while also focusing on rebuilding their communities.

The Stafford Act, Section 417, subparts 206.360 through 206.367, authorizes FEMA to provide direct loans to any local government that has suffered substantial loss of revenues in an area in which the President designates a major disaster exists. The funds can only be used to maintain existing functions of a municipal operating character and the local government must demonstrate a need for financial assistance. The funds cannot be used to meet the nonfederal share of any Federal program, finance capital improvements, or repair or restore public facilities.

Loans will not exceed the lesser of:

  • 25% of the local government’s annual operating budget for the fiscal year in which the major disaster occurs, up to a maximum of $5 million; or
  • if the loss of tax and other revenues of the local government as a result of the major disaster is at least 75 percent of the annual operating budget of that local government for the fiscal year in which the major disaster occurs, 50 percent of the annual operating budget of that local government for the fiscal year in which the major disaster occurs, and shall not exceed $5 million.

To initiate the process, the local government should contact the Governor’s Authorized Representative and request evaluation for loan eligibility.

Governor’s Authorized Representative:
Nim Kidd, MPA, CEM, TEM
Chief, Texas Division of Emergency Management
Assistant Director, Texas Dept. of Public Safety
(512) 424-2436
nim.kidd@dps.texas.gov

Governmental Entity Governance and Information Management  (Stefanie Albright:  (512) 322-5814, salbright@lglawfirm.com).

Even in a disaster scenario, governmental entities are required to follow laws governing public information as well as governance of public bodies. It is important to remember that all documents produced during a disaster response, including text messages, may be subject to future requests for public information. Records retention laws apply to documents, created both before, during, and after a disaster, and governmental entities should make efforts to gather and maintain such documents as part of their records retention programs. Additionally, governmental bodies are required to follow the Texas Open Meetings Act at all times, and although certain rules have emergency exceptions, the application of these exceptions requires a strict and fact-intensive review to ensure compliance.

Environmental Clean Up  (Duncan Norton: (512) 322-5884, dnorton@lglawfirm.com).

The Governor has issued a Proclamation declaring a state of disaster for the 30-county area most affected by Hurricane Harvey.  The Texas Commission on Environmental Quality (TCEQ) has issued Regulatory Guidance giving blanket authorization for Harvey-related response actions, including, for example, debris and potentially contaminated floodwater management. Also, TCEQ is accepting requests for emergency authorizations to conduct certain activities that would otherwise not be permitted, such as extending facility hours of operation and extensions of time for repair and maintenance. Please click on the link below to access the various State documents that address emergency environmental response activities.

State Documents and Forms

Water Quality Protection  (Nathan Vassar: (512) 322-5867, nvassar@lglawfirm.com).

TCEQ’s Enforcement Rules provide for a defense against a permit, statute, or rule violation due to catastrophic events and acts of God, commonly referred to as force majeure. The burden of proof is on the owner/operator of the affected facility. A best practice is to document a violation timeline in conjunction with the event triggering force majeure. Such documentation should also identify ongoing effects of a storm (such as high influent flow or contaminant concentration levels after rainwater continues to drain).

In addition, heavy rain events triggering certain significant waste spills impacting groundwater or surface waters require certain 24-hour notice requirements. Such spills include those involving a waste discharge of 100,000 gallons or more, those that may impact public or private drinking water sources; and certain large volume spills located within active groundwater recharge areas or within one-half mile of certain wells or intake locations for drinking water supplies. TCEQ requires the notice to be sent within 24-hours after the entity becomes aware of the spill, and to local government officials and local media. A best practice to be prepared for such notice is to develop a list of contacts used for regular and emergency notifications/press releases.

Employment/Personnel  (Sheila Gladstone: (512) 322-5863, sgladstone@lglawfirm.com; Ashley Thomas: (512) 322-5881, athomas@lglawfirm.com).

A range of employment law issues may arise for employers during and immediately after a natural disaster.

  • Emergency personnel and other employees responding to a disaster may need to work long hours, be on-call, and/or sleep at the workplace, which could result in significant amounts of overtime that must be tracked and paid. Necessary and well-documented overtime for first-responders may be eligible for FEMA recovery funding at some point.
  • Employees experiencing a natural disaster may return to work with anxiety, depression and trauma, as well as caring for family members with such concerns, raising issues of accommodation and leave under the Americans with Disabilities Act and the Family and Medical Leave Act.
  • Employees who are reservists may be getting called up and have extended protected leave at this time, both under Texas and federal law.
  • Elected officials or other governmental leaders who have to act quickly in response to a disaster may turn to family members to help with certain tasks, raising nepotism issues.
  • Public employers face a particular issue in providing paid leave to their employees who are unable to come to work during a disaster. Absent a preexisting policy permitting additional paid leave to be granted in emergency situations, public employers cannot legally pay their employees for hours not worked—such payment constitutes an unlawful gift of public funds under the Texas Constitution.

Construction Project Interruption  (Jose de la Fuente: (512) 322-5849, jdelafuente@lglawfirm.com).

Owners with ongoing construction projects interrupted and/or damaged by a disaster, should check contracts for (1) force majeure provisions, (2) insurance requirements/provisions specifying who carries the risk of loss during construction, and (3) any performance bond (if the contractor is unable to complete the project for any reason, the project may be completed via the bond). Owners should confer with their contractors as soon as practical regarding project status, and work to develop a plan for completion; use email if possible to make a record of efforts.

Public Utilities (Jamie Mauldin, (512) 322-5890, jmauldin@lglawfirm.com).

The Public Utility Commission of Texas has opened an emergency docket  to directly address issues related to Hurricane Harvey, and has given the executive director of the Commission the ability to issue cease and desist orders that are necessary to address these matters. Additionally, the executive director may now issue emergency orders, with or without hearing, to compel certain water utilities to provide water and sewer service, to compel retail public utilities to provide emergency interconnections for the provision of temporary water or sewer service, and for other matters.

Additionally, electric utilities have been and will continue to provide information related to outages and restoration of service to the Commission through this docket.

Helpful Links

Office of the Governor: Letter to County Judges on Disaster Assistance Programs Office of the Governor:  Texas Hurricane Center TCEQ Hurricane Response Page TCEQ Regional Offices Directory Texas A&M Agrilife Extension FEMA:  Procurement Disaster Assistance Team FEMA:  County Emergency Management Offices  (scroll down for listing)

Department of Labor:  Wage and Hour Information