By: Barrientos S.B. No. 880
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the authority of a local government or state agency to
1-2 implement a habitat plan to protect endangered species and to
1-3 impose reasonable and necessary fees under the plan; providing
1-4 criminal and civil penalties.
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 designating Sections 83.001 through 83.006, Parks and Wildlife
1-8 Code, as Subchapter A, Chapter 83, Parks and Wildlife Code, and
1-9 adding a heading to Subchapter A to read as follows:
1-10 SUBCHAPTER A. FEDERAL-STATE AGREEMENTS
1-11 SECTION 2. Chapter 83, Parks and Wildlife Code, is amended
1-12 by adding Subchapter B to read as follows:
1-13 SUBCHAPTER B. CONSERVATION UNDER HABITAT PLAN
1-14 Sec. 83.011. DEFINITIONS. In this subchapter:
1-15 (1) "Development" has the meaning assigned the term
1-16 "new development" under Section 395.001, Local Government Code, but
1-17 does not include the construction, reconstruction, or addition to
1-18 fences, structures, or barns used to contain livestock or that
1-19 serve solely for agricultural use on land that is appraised under
1-20 Title 1, Tax Code, for agricultural use.
1-21 (2) "Federal Act" means the federal Endangered Species
1-22 Act of 1973 (16 U.S.C. Section 1531 et seq.).
1-23 (3) "Federal permit" means a permit issued under
2-1 Section 10(a) of the federal Act (16 U.S.C. Section 1539).
2-2 (4) "Fiscal year" means the 12-month period beginning
2-3 October 1 and ending September 30 of each calendar year.
2-4 (5) "Governmental entity" means:
2-5 (A) a state agency; or
2-6 (B) a political subdivision of the state,
2-7 including:
2-8 (i) a municipality;
2-9 (ii) a county;
2-10 (iii) a conservation or reclamation
2-11 district, other than a river authority, created under Article III,
2-12 Section 52, or Article XVI, Section 59, of the Texas Constitution;
2-13 (iv) a public school district;
2-14 (v) a junior college or community college
2-15 district; or
2-16 (vi) a road utility district, emergency
2-17 communication district, or other special purpose district.
2-18 (6) "Habitat preserve" means an area acquired for and
2-19 dedicated to the protection of endangered species.
2-20 (7) "Plan" or "habitat plan" means a habitat
2-21 conservation plan developed under Section 83.006 of this code as a
2-22 prerequisite for and approved in conjunction with issuance of a
2-23 federal permit.
2-24 (8) "Plan participant" means a municipality, county,
2-25 river authority, or state agency that adopts a habitat plan as
3-1 authorized by Section 83.015(a) of this code.
3-2 (9) "State agency" means:
3-3 (A) a board, commission, department, or other
3-4 agency in the executive branch of state government created by the
3-5 constitution or a statute of the state;
3-6 (B) an institution of higher education as
3-7 defined by Section 61.003, Education Code; or
3-8 (C) a river authority.
3-9 Sec. 83.012. PURPOSE. (a) The purpose of this subchapter
3-10 is to clarify the authority of certain governmental entities to
3-11 finance, implement, and enforce a habitat plan according to the
3-12 requirements of a federal permit, including:
3-13 (1) the authority to establish and collect certain
3-14 surcharges and to spend the revenues from those surcharges to carry
3-15 out the plan;
3-16 (2) the authority to manage habitat preserves;
3-17 (3) the authority to implement and enforce a habitat
3-18 plan through interlocal cooperation contracts under Chapter 791,
3-19 Government Code; and
3-20 (4) the authority to apply for and obtain a federal
3-21 permit.
3-22 (b) This subchapter does not constitute an endorsement by
3-23 the legislature of the federal Act or its application in this
3-24 state.
3-25 Sec. 83.013. IMPLEMENTATION. (a) A county or municipality
4-1 may implement a habitat plan and associated federal permit under
4-2 this subchapter only if:
4-3 (1) the qualified voters of the municipality or
4-4 county, as appropriate, have authorized the issuance of bonds for
4-5 the purposes of conservation and protection of endangered species;
4-6 and
4-7 (2) the municipality or county, as appropriate, has
4-8 begun the first phase of an application for a federal permit to the
4-9 United States Fish and Wildlife Service before June 1, 1993,
4-10 including submission, at a minimum, of the background biology
4-11 concerning the endangered species.
4-12 (b) A county or municipality may not implement a habitat
4-13 plan under this subchapter if:
4-14 (1) the federal Act is repealed;
4-15 (2) the federal Act is amended so that the endangered
4-16 species that are subject to conservation and protection under the
4-17 federal permit cease to be listed as endangered by the United
4-18 States Fish and Wildlife Service; or
4-19 (3) the federal Act is amended in a manner that
4-20 reduces the habitat land of an endangered species subject to
4-21 conservation and protection under the federal permit to less than
4-22 50,000 acres in a county.
4-23 (c) A municipality may implement a habitat plan and
4-24 associated federal permit under this subchapter in the
4-25 municipality's extraterritorial jurisdiction only in that part of
5-1 the extraterritorial jurisdiction that is in:
5-2 (1) a county the qualified voters of which have
5-3 authorized the issuance of bonds for the purposes of conservation
5-4 and protection of endangered species; or
5-5 (2) a county of which the municipality is the county
5-6 seat, subject to the limitations of Section 83.017(d) of this code.
5-7 Sec. 83.014. LIMITATION OF POWERS. Except as expressly
5-8 provided, this subchapter does not:
5-9 (1) enlarge, expand, or limit the powers or authority
5-10 of any governmental entity; or
5-11 (2) authorize a governmental entity to charge a fee to
5-12 be used for the implementation of a plan for the conservation and
5-13 protection of an endangered species.
5-14 Sec. 83.015. PLAN PARTICIPATION. (a) A municipality,
5-15 county, or river authority having jurisdiction in the area covered
5-16 by a habitat plan or a state agency may adopt and participate in
5-17 the plan, hold a federal permit individually or jointly, and
5-18 contract under Chapter 791, Government Code, to participate in the
5-19 plan.
5-20 (b) In order to accomplish the purposes of this subchapter,
5-21 a plan participant may contract with another governmental or
5-22 private entity to assist that entity in complying with the federal
5-23 Act by sharing the benefits and legal entitlements of the federal
5-24 permit with that governmental or private entity under such terms
5-25 and conditions acceptable to the parties, including but not limited
6-1 to such consideration as deemed necessary, notwithstanding any
6-2 other provisions of this subchapter.
6-3 (c) A contract authorized by this section may be made in
6-4 anticipation of federal approval of a habitat plan and issuance of
6-5 a federal permit associated with the plan.
6-6 Sec. 83.016. LEASE OR CONVEYANCE OF LAND. (a) A plan
6-7 participant may lease or convey land to another plan participant,
6-8 to a nonprofit corporation, or to an individual in exchange for
6-9 real or personal property for the purpose of establishing or
6-10 operating a habitat preserve under this subchapter.
6-11 (b) Requirements of Chapter 26 of this code, Section
6-12 253.001, Local Government Code, and Chapter 262, Local Government
6-13 Code, and other competitive bidding, public auction, or local
6-14 referendum requirements otherwise applicable to a lease or
6-15 conveyance of land by a governmental entity do not apply to a lease
6-16 or conveyance by a plan participant under this section.
6-17 Sec. 83.017. DEVELOPMENT PROCESS SURCHARGES. (a) A county
6-18 or municipality that is a plan participant may adopt ordinances,
6-19 rules, regulations, or orders imposing a development process
6-20 surcharge as provided by this subchapter on a development in its
6-21 jurisdiction.
6-22 (b) The development process surcharge shall be established
6-23 in the habitat plan. The development process surcharge may be
6-24 assessed by:
6-25 (1) a municipality that is a plan participant in
7-1 addition to other development assessments charged by the
7-2 municipality; and
7-3 (2) by a county that is a plan participant in addition
7-4 to other fees collected by the county for any permits required
7-5 under its land use and control measures adopted under Subchapter I,
7-6 Chapter 16, Water Code.
7-7 (c) The development process surcharge may be adopted and
7-8 collected by a county only after the qualified voters of that
7-9 county have authorized the issuance of bonds for the conservation
7-10 and protection of endangered species.
7-11 (d) The development process surcharge may be adopted and
7-12 collected by a municipality inside its corporate limits only after
7-13 the qualified voters of the municipality have authorized the
7-14 issuance of bonds for the conservation and protection of endangered
7-15 species. The development process surcharge may be charged by a
7-16 municipality in its extraterritorial jurisdiction in a county only
7-17 after the qualified voters of the county have authorized the
7-18 issuance of bonds for the conservation and protection of endangered
7-19 species.
7-20 (e) A plan participant is exempt from a development process
7-21 surcharge authorized by this subchapter.
7-22 (f) A development process surcharge authorized by this
7-23 subchapter is not subject to Chapter 395, Local Government Code.
7-24 (g) Development process surcharges authorized under this
7-25 subchapter shall be reasonably calculated to fund, in conjunction
8-1 with all other funding sources, and may be spent only to pay for:
8-2 (1) implementation of the habitat plan;
8-3 (2) operation, maintenance, and management expenses of
8-4 the plan and habitat preserves;
8-5 (3) funding the endowment trust fund and capital
8-6 reserve established under the plan; and
8-7 (4) reasonable and necessary administrative costs
8-8 associated with the collection and expenditure of development
8-9 process surcharges.
8-10 (h) If a municipality and a county with concurrent
8-11 jurisdiction are both plan participants, the structure of the
8-12 development process surcharge shall be developed jointly by the
8-13 commissioners court of the county and the governing body of the
8-14 municipality.
8-15 (i) The amount of the development process surcharge shall be
8-16 coordinated and adopted annually by the commissioners court of a
8-17 county that is a plan participant and by the governing body of a
8-18 municipality that is a plan participant and shall be calculated to
8-19 meet projected funding needs for the purposes authorized by
8-20 Subsection (g) of this section.
8-21 (j) The development process surcharge may be assessed at
8-22 different rates for different classifications and locations of
8-23 development according to reasonably calculated levels of benefit to
8-24 be received by a development. A development process surcharge
8-25 assessed under this section may not vary by more than 100 percent
9-1 for the same classification of development.
9-2 (k) A municipality may not assess a development process
9-3 surcharge inside its corporate limits on a development in an area
9-4 that qualifies and is designated by the municipality as an area of
9-5 low and moderate income with pervasive poverty, unemployment, and
9-6 economic distress and of over 30 percent substandard housing
9-7 conditions for purposes of community block grants under the federal
9-8 Housing and Urban-Rural Recovery Act of 1983 (12 U.S.C. Section
9-9 1701 et seq.). In making the designation determination, the
9-10 municipality shall make specific findings for each of the criteria
9-11 after notice and public hearing.
9-12 (l) A county may not assess the development process
9-13 surcharge outside a municipality's corporate limits on a
9-14 development in an area that qualifies and is designated by the
9-15 county under the same criteria and procedures prescribed for a
9-16 municipality by Subsection (k) of this section.
9-17 Sec. 83.018. DISPOSITION OF FEES. (a) A municipality or
9-18 county that adopts and collects a development process surcharge
9-19 under Section 83.017 of this code shall deposit the surcharge
9-20 revenue in a dedicated fund in a separate account.
9-21 (b) A municipality or county annually shall prepare a budget
9-22 for proposed expenditures and an accounting of previous
9-23 expenditures from a surcharge revenue account under this section.
9-24 Sec. 83.019. ENDOWMENT FUND. The endowment trust fund
9-25 established under the habitat plan shall be administered as
10-1 provided by the plan.
10-2 Sec. 83.020. HABITAT PRESERVE MANAGEMENT. A plan
10-3 participant may adopt and enforce ordinances, rules, regulations,
10-4 or orders in a habitat preserve, in a manner consistent with the
10-5 habitat plan and federal permit associated with the plan, that
10-6 limit entry to and use of a habitat preserve owned or managed by
10-7 the plan participant, including:
10-8 (1) charging reasonable entry and use fees;
10-9 (2) regulating conduct in the habitat preserves that
10-10 is inconsistent with preserve purposes or that threatens the
10-11 health, safety, or welfare of persons or property in the preserves;
10-12 and
10-13 (3) regulating motorized and nonmotorized vehicular
10-14 traffic in habitat preserves, including entry, routes, speed, and
10-15 parking.
10-16 Sec. 83.021. NOTICE AND HEARING REQUIREMENTS. (a) A plan
10-17 participant must comply with the notice and hearing requirements of
10-18 this section before adopting any plan amendment, ordinance, budget,
10-19 fee schedule, rule, regulation, or order to implement this
10-20 subchapter.
10-21 (b) The plan participant, individually or through interlocal
10-22 contract, shall publish a notice, including a brief description of
10-23 the proposed action and the time and place of a public hearing on
10-24 the proposed action, not later than the 30th day before the public
10-25 hearing in the newspaper of largest general circulation in the
11-1 county in which the plan participant proposing the action is
11-2 located.
11-3 (c) A public hearing on the proposed action shall be held at
11-4 the time and place specified in the notice.
11-5 (d) If the plan participant approves the proposed action,
11-6 the participant shall publish notice of approval of the proposed
11-7 action as prescribed by Subsection (b) of this section.
11-8 Sec. 83.022. CRIMINAL PENALTY. (a) A person who knowingly
11-9 violates an ordinance, rule, regulation, or order adopted under
11-10 this subchapter commits an offense.
11-11 (b) An offense under this section is a Class C misdemeanor
11-12 and each violation is punishable by a fine not to exceed $2,000.
11-13 If the plan participant adopting the ordinance, rule, regulation,
11-14 or order has specified a more severe criminal penalty under the
11-15 authority of other state law, the more severe penalty applies.
11-16 Sec. 83.023. CIVIL PENALTY. (a) A person who knowingly
11-17 violates an ordinance, rule, regulation, or order adopted under
11-18 this subchapter is subject to a civil penalty, in addition to any
11-19 criminal penalty, not to exceed $500 a day for each day of
11-20 violation if it is proven that:
11-21 (1) the defendant was actually notified of the
11-22 ordinance, rule, regulation, or order adopted under this
11-23 subchapter; and
11-24 (2) after the defendant received notice of the
11-25 ordinance, rule, regulation, or order, the defendant committed acts
12-1 in violation of the ordinance, rule, regulation, or order or failed
12-2 to take action necessary for compliance with the ordinance, rule,
12-3 regulation, or order.
12-4 (b) A civil penalty collected under this section shall be
12-5 deposited with the plan participant in whose jurisdiction the
12-6 violation occurred and may be used in the same manner as that
12-7 prescribed for surcharges by Section 83.017(g) of this code.
12-8 (c) A plan participant may file suit to enjoin a threatened
12-9 or actual violation, to collect an unpaid assessment, or to collect
12-10 a civil penalty under this section.
12-11 SECTION 3. (a) The development process surcharge authorized
12-12 by Section 83.017, Parks and Wildlife Code, as added by this Act,
12-13 may not be collected by a plan participant, as defined in Section
12-14 83.011, Parks and Wildlife Code, as added by this Act, before the
12-15 issuance to the plan participant of a Section 10(a) permit under
12-16 the federal Endangered Species Act of 1973 (16 U.S.C. Section 1531
12-17 et seq.).
12-18 (b) A plan participant may not collect the development
12-19 process surcharge if the cumulative amount of the surcharge
12-20 collected by all plan participants exceeds the cumulative amount of
12-21 all funds expended, including bond proceeds and interest paid to
12-22 service the bond debt, by the plan participants for conservation
12-23 and protection of endangered species. In determining funds
12-24 expended by plan participants, funds received from the development
12-25 surcharge shall be excluded.
13-1 SECTION 4. The Parks and Wildlife Commission shall, through
13-2 the creation of an advisory board if appropriate, and in
13-3 cooperation with any legislative interim study that may be
13-4 authorized, make recommendations to the legislature not later than
13-5 January 1, 1995, regarding amendments to this Act and the planning
13-6 process for habitat conservation plans.
13-7 SECTION 5. The imposition of a habitat mitigation fee of any
13-8 kind is expressly prohibited under this Act.
13-9 SECTION 6. This Act takes effect September 1, 1993.
13-10 SECTION 7. The importance of this legislation and the
13-11 crowded condition of the calendars in both houses create an
13-12 emergency and an imperative public necessity that the
13-13 constitutional rule requiring bills to be read on three several
13-14 days in each house be suspended, and this rule is hereby suspended.