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.