By Naishtat                                           H.B. No. 2457
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the authority of local governments and state agencies
    1-3  to implement regional plans for endangered species protection and
    1-4  to impose reasonable and necessary fees pursuant thereto.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Chapter 83, Parks and Wildlife Code, is amended
    1-7  by adding Subchapter B to read as follows:
    1-8           SUBCHAPTER B.  CONSERVATION OF ENDANGERED SPECIES
    1-9                      PURSUANT TO A REGIONAL PLAN
   1-10        Section 83.010  DEFINITIONS.  In this subchapter:
   1-11        (1)  "Capital improvement project" means construction or
   1-12  establishment of any public or private water supply, treatment, or
   1-13  distribution facility; public or private wastewater disposal,
   1-14  collection, or treatment facility; public or private storm water
   1-15  drainage, or flood control facility; public or private electrical
   1-16  generation or distribution facility or other utility; public
   1-17  transportation, street, road, or highway facility; or public
   1-18  building or facility, including but not limited to, recreational,
   1-19  research, police, fire fighting, or other building constructed or
   1-20  financed in whole or in part with public funds.
   1-21        (2)  "Federal permit" means a permit issued under Section
   1-22  10(a) of the Federal Endangered Species Act.
   1-23        (3)  "Fiscal year" means a twelve month period beginning
    2-1  October 1 and ending September 30 of each calendar year.
    2-2        (4)  "Government entity" means an agency, department,
    2-3  institute of higher education, board, or commission of the State of
    2-4  Texas; or a political subdivision of the State of Texas, including
    2-5  a municipality, county, river authority, conservation and
    2-6  reclamation district, school district, junior or community college
    2-7  or district, water control and improvement district, drainage
    2-8  district, irrigation district, water supply district, soil and
    2-9  water conservation district, underground water district,
   2-10  municipality utility district, road utility district, emergency
   2-11  communication district, or other special purpose district.
   2-12        (5)  "Habitat preserve" means those areas acquired to protect
   2-13  endangered species.
   2-14        (6)  "Plan" or "regional plan" means a regional habitat
   2-15  conservation plan developed and approved in conjunction with
   2-16  issuance of a federal permit.
   2-17        (7)  "Plan Participant" means a government entity which
   2-18  adopts a regional plan.
   2-19        (8)  "Public Institution" means a government entity as
   2-20  defined herein, or a public utility.
   2-21        (9)  "Public Works Project" means a capital improvement which
   2-22  is not a public building.
   2-23  SECTION 83.011  APPLICABILITY
   2-24        (a)  This subchapter applies only to a regional plan and
   2-25  associated federal permit in a county or a municipality wherein the
    3-1  qualified voters have authorized the issuance of bonds for the
    3-2  purposes of conservation and protection of endangered species.
    3-3        (b)  This subchapter applies to a regional plan and
    3-4  associated federal permit in the extraterritorial jurisdiction of a
    3-5  municipality wherein the qualified voters have authorized the
    3-6  issuance of bonds for the purposes of conservation and protection
    3-7  of endangered species only where:
    3-8              (1)  the municipality's extraterritorial jurisdiction
    3-9  falls within a county wherein the qualified voters of the county
   3-10  have authorized the issuance of bonds for the purposes of
   3-11  conservation and protection of endangered species, or
   3-12              (2)  the municipality's extraterritorial jurisdiction
   3-13  falls within a county for which the municipality is the county
   3-14  seat, subject to the limitations in Section 83.019(b).
   3-15  SECTION 83.012  PURPOSE
   3-16        The purpose of this subchapter is to clarify the authority of
   3-17  certain government entities to finance, implement, and enforce a
   3-18  regional plan pursuant to the requirements of a federal permit
   3-19  including the following:
   3-20              (1)  authority to establish and collect certain
   3-21  assessments, surcharges, and fees and to expend the revenues
   3-22  therefrom to carry out the plan;
   3-23              (2)  authority to manage habitat preserves;
   3-24              (3)  authority to implement and enforce a regional plan
   3-25  through interlocal cooperation contracts under Chapter 791, Texas
    4-1  Government Code; and
    4-2              (4)  authority to apply for and obtain a federal
    4-3  permit.
    4-4  SECTION 83.013  PLAN PARTICIPATION AND FUNCTIONS
    4-5        (a)  Any city, county, or river authority having jurisdiction
    4-6  within the area covered by the plan, and any agency or department
    4-7  of the State may adopt and participate in a regional plan, hold a
    4-8  federal permit individually or jointly, and contract under the
    4-9  Interlocal Cooperation Act, Chapter 791, Texas Government Code, to
   4-10  participate in the plan.
   4-11        (b)  Pursuant to an interlocal contract, a plan participant
   4-12  may delegate the power to:
   4-13              (1)  apply its ordinances, rules, regulations and
   4-14  orders; and
   4-15              (2)  carry out management or administrative functions,
   4-16  including collection and expenditures of assessments, surcharges,
   4-17  and fees.
   4-18        (c)  Contracts under this section may be entered into in
   4-19  anticipation of approval of a plan and issuance of a federal
   4-20  permit.
   4-21  SECTION 83.014.  HABITAT PRESERVE MANAGEMENT.
   4-22        (a)  A plan participant may adopt and enforce ordinances,
   4-23  rules, regulations, or orders in a manner consistent with the plan
   4-24  and federal permit that limit entry to and use of habitat preserves
   4-25  owned or managed by the plan participant, including but not limited
    5-1  to:
    5-2              (1)  charging reasonable fees for such entry and use;
    5-3              (2)  regulating conduct in the habitat preserves that
    5-4  is inconsistent with preserve purposes or that threatens the
    5-5  health, safety, or welfare of persons or property within the
    5-6  preserve; and
    5-7              (3)  regulating motorized and nonmotorized vehicular
    5-8  traffic in habitat preserves, including entry, routes, speed, and
    5-9  parking.
   5-10        (b)  A plan participant may lease or convey land to a plan
   5-11  participant, to a non-profit corporation, or to an individual in
   5-12  exchange for real or personal property, for the purposes of
   5-13  establishing or operating a habitat preserve under this subchapter.
   5-14  Requirements of chapter 26 of the Parks and Wildlife Code, Section
   5-15  253.001 and Chapter 262 of the Local Government Code, and any other
   5-16  competitive bidding, public auction, or local referendum
   5-17  requirements ordinarily applicable to a lease or conveyance of land
   5-18  by a plan participant shall not apply to a lease or conveyance
   5-19  under this subsection.
   5-20  SECTION 83.015.  LIMITATION OF POWERS
   5-21        Except as expressly provided, nothing in this subchapter
   5-22  enlarges, expands, or limits the powers or authority of any
   5-23  government entity.
   5-24  SECTION 83.016.  AUTHORITY TO CHARGE FEES TO ACQUIRE AND MANAGE
   5-25  HABITAT PRESERVES
    6-1        (a)  As specified in the following sections of this
    6-2  subchapter, counties and municipalities are authorized to adopt
    6-3  ordinances, rules, regulations, or orders imposing fees and
    6-4  surcharges specified in this subchapter on any development, or
    6-5  capital improvement project within its jurisdictional area
    6-6  including state highway projects and other state-funded capital
    6-7  improvement projects.
    6-8        (b)  Plan participants, and their electric wholesale
    6-9  customers, shall be exempt from any surcharge or fees authorized
   6-10  under this subchapter.
   6-11        (c)  Any surcharge or fee authorized under this subchapter is
   6-12  not subject to Chapter 395 of the Local Government Code.
   6-13        (d)  Mitigation fees authorized under this subchapter shall
   6-14  be expended only for the limited purpose of implementing the plan,
   6-15  financing habitat preserve acquisition, funding operations,
   6-16  maintenance and management expenses of the plan, funding the
   6-17  endowment trust fund, and paying reasonable and necessary costs
   6-18  associated with administering collection and expenditure of
   6-19  mitigation fees.
   6-20        (e)  Surcharges authorized under this subchapter shall be
   6-21  expended only for the limited purpose of implementing the plan,
   6-22  funding operation, maintenance and management expenses of the plan,
   6-23  funding the endowment trust fund, and paying reasonable and
   6-24  necessary costs associated with administering collection and
   6-25  expenditure of surcharges.
    7-1        (f)  Surcharges and fees authorized under this subchapter
    7-2  shall be reasonably calculated, in conjunction with all other
    7-3  funding sources, to fund implementation of the plan, including but
    7-4  not limited to:
    7-5              (1)  respective items listed in subsections (d) and (e)
    7-6  above,
    7-7              (2)  land management,
    7-8              (3)  public education,
    7-9              (4)  research,
   7-10              (5)  monitoring,
   7-11              (6)  enforcement, and
   7-12              (7)  a working capital reserve.
   7-13  SECTION 83.017.  HABITAT MITIGATION FEE
   7-14        (a)  The habitat mitigation fee shall be a voluntary
   7-15  assessment, to be paid by parties engaged in developments which
   7-16  require permitting under the Federal Endangered Species Act, other
   7-17  than capital improvement projects, in return for the legal and
   7-18  economic benefits of the plan.  For those voluntary participants
   7-19  with property located within the municipality's corporate limits or
   7-20  the extraterritorial jurisdiction, the habitat mitigation fee shall
   7-21  be paid to the municipality only and not to the county.  A
   7-22  voluntary participant with property located outside the
   7-23  municipality's extraterritorial jurisdiction shall pay the habitat
   7-24  mitigation fee only to the county and not to the municipality.
   7-25        (b)  The habitat mitigation fee formula shall be established
    8-1  in the plan, but shall not exceed $1,500 per gross acre of
    8-2  subdivision platting or site development at the inception of the
    8-3  plan, indexed annually at a rate not to exceed 4.0 percent or the
    8-4  percent rate of increase of the Consumer Price Index as published
    8-5  monthly in the Survey of Current Business of the United States
    8-6  Department of Commerce, Bureau of Economic Analysis, whichever is
    8-7  higher.  Real property of equivalent value (such value to be
    8-8  determined by the value assessed by the county central appraisal
    8-9  district) may be donated in lieu of payment of the habitat
   8-10  mitigation fee at the discretion of the plan participants asset
   8-11  forth in the plan.
   8-12        (c)  The habitat mitigation fee shall be discontinued upon:
   8-13              (1)  completion of the land acquisition program by plan
   8-14  participants as established in the plan, and
   8-15              (2)  implementation of a development process surcharge
   8-16  by a county.
   8-17  SECTION 83.018.  CAPITAL IMPROVEMENT PROJECT MITIGATION FEE
   8-18        (a)  The capital improvement project mitigation fee shall be
   8-19  a voluntary assessment, to be paid by public institutions engaged
   8-20  in a capital improvement project which requires permitting under
   8-21  the Federal Endangered Species Act in return for the legal and
   8-22  economic benefits of the plan.
   8-23        (b)  The capital improvement project mitigation fee formula
   8-24  shall be established in the plan, but shall not exceed:
   8-25              (1)  2% of the total project cost for public works
    9-1  projects, or
    9-2              (2)  The equivalent of the habitat mitigation fee for
    9-3  public building construction.
    9-4  SECTION 83.019.  DEVELOPMENT PROCESS SURCHARGE
    9-5        (a)  The development process surcharge shall be established
    9-6  in the plan, and may be added to all development assessments
    9-7  charged by a municipality which is a plan participant and to all
    9-8  fees collected by a county which is a plan participant for any
    9-9  permits required under its land use and control measures adopted
   9-10  pursuant to Chapter 16, subchapter I, Texas Water Code.
   9-11        (b)  The development process surcharge shall be implemented
   9-12  by a county only after authorization by the qualified voters of
   9-13  that county of either the assessment of fees or the issuance of
   9-14  bonds for the purposes of conservation and protection of endangered
   9-15  species.  The development process surcharge shall be charged by a
   9-16  municipality in its extraterritorial jurisdiction within a county
   9-17  only upon implementation by that county of the development process
   9-18  surcharge.
   9-19        (c)  The development process surcharge shall be placed in a
   9-20  dedicated fund to be used solely for the uses set forth in section
   9-21  83.016 of this subchapter.
   9-22        (d)  In the case of a municipality and a county with
   9-23  concurrent jurisdiction where both are plan participants, the
   9-24  structure of the development process surcharge shall be developed
   9-25  jointly by the Commissioners Court of a county and by the City
   10-1  Council of a municipality.
   10-2        (e)  The amount of the development process surcharge shall be
   10-3  coordinated and adopted annually by the Commissioners Court of a
   10-4  county which is a plan participant and by the City Council of a
   10-5  municipality which is a plan participant and shall be calculated to
   10-6  meet projected funding needs based upon the following:
   10-7              (1)  operation, maintenance, and management
   10-8  requirements for the plan,
   10-9              (2)  funding an endowment trust fund sufficient to
  10-10  provide resources for, at an annual interest rate of 6.0%, one-half
  10-11  of the projected operation, maintenance and management requirements
  10-12  at year 30 of the plan, and
  10-13              (3)  a working capital reserve of $1,000,000.00.
  10-14        (f)  The development process surcharge may provide for
  10-15  different levels of surcharge for different classifications of
  10-16  development based upon a reasonable calculation of the level of
  10-17  benefit received by the development.
  10-18        (g)  The development process surcharge shall not be assessed
  10-19  by a municipality within its city limits on a development within an
  10-20  area that qualifies and is designated by a municipality as an area
  10-21  of low and moderate income with pervasive poverty, unemployment,
  10-22  and economic distress, and of over 30% substandard housing
  10-23  conditions for purposes of Community Block Grants (CDBG) pursuant
  10-24  to the U.S. Housing and Urban-Rural Recovery Act of 1983.  In
  10-25  making the designation determination, the municipality shall make
   11-1  specific findings for each of the criteria after notice and public
   11-2  hearing.
   11-3        (h)  Outside a municipality's city limits the development
   11-4  process surcharge shall not be assessed by a county on a
   11-5  development within an area that qualifies and is designated by a
   11-6  county under the same criteria and procedures utilized by a
   11-7  municipality in the foregoing subsection.
   11-8  SECTION 83.020.  NOTICE AND HEARING REQUIREMENTS
   11-9        (a)  A plan participant shall comply with the notice and
  11-10  hearing requirements of this section prior to adopting an
  11-11  ordinance, rule, or regulation to implement this subchapter.
  11-12        (b)  The plan participant, individually or through interlocal
  11-13  contract, shall publish a notice including a brief description of
  11-14  the proposed action and the time and place of a public hearing on
  11-15  the proposed action. The notice shall be filed at least 30 days
  11-16  prior to the public hearing in the newspaper of largest general
  11-17  circulation in the county in which the plan participant proposing
  11-18  the action is located.
  11-19        (c)  A public hearing on the proposed action shall be held at
  11-20  the time and place specified in the notice.
  11-21        (d)  If the plan participant approves the proposed action, it
  11-22  shall publish notice of its action in the manner prescribed in
  11-23  subsection (b) of this section.
  11-24  SECTION 83.021.  ENFORCEMENT
  11-25        (a)  It shall be unlawful for any person to knowingly  or
   12-1  intentionally violate any ordinance, rule, regulation, or order
   12-2  adopted under this subchapter.
   12-3        (b)  An offense under this section is a Class C misdemeanor
   12-4  and each violation shall be punished by a fine not to exceed
   12-5  $2,000, unless the plan participant adopting the ordinance, rule,
   12-6  regulation, or order has specified a different criminal penalty
   12-7  pursuant to other authority granted by law of this state, in which
   12-8  case the more severe penalty applies.
   12-9        (c)  A person who commits an offense is also subject to a
  12-10  civil penalty not to exceed $500.00 per day for each day of the
  12-11  offense if it is proven that:
  12-12              (1)  the defendant was actually notified of the
  12-13  provisions of the ordinance, rule, regulation or order adopted
  12-14  under this subchapter; and
  12-15              (2)  after the defendant received notice of the
  12-16  ordinance, rule, regulations or order provisions, the defendant
  12-17  committed acts in violation of the ordinance, rule, regulation or
  12-18  order or failed to take action necessary for compliance with the
  12-19  ordinance, rule, regulation or order.
  12-20        (d)  Civil penalties collected under this Section shall be
  12-21  deposited with the plan participant in whose jurisdiction the
  12-22  violation occurred and may be used in the same manner as
  12-23  assessments under Section 83.019 of this Chapter.
  12-24        (e)  A plan participant may file suit to enjoin a threatened
  12-25  or actual offense, to collect unpaid assessments, and to collect
   13-1  civil penalties under this Section.
   13-2        SECTION 2. The importance of this legislation and the crowded
   13-3  condition of the calendars in both houses create an emergency and
   13-4  an imperative public necessity that the constitutional rule
   13-5  requiring bills to be read on three several days in each house be
   13-6  suspended, and this rule is hereby suspended, and that this Act
   13-7  take effect and be in force from and after its passage, and it is
   13-8  so enacted.