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.