73R11224 MI-F
By Barrientos S.B. No. 880
Substitute the following for S.B. No. 880:
By Lewis C.S.S.B. No. 880
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of a local government or state agency to
1-3 implement a habitat plan to protect endangered species and to
1-4 impose reasonable and necessary fees under the plan; providing
1-5 criminal and civil penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Chapter 83, Parks and Wildlife Code, is amended
1-8 by designating Sections 83.001 through 83.006, Parks and Wildlife
1-9 Code, as Subchapter A, Chapter 83, Parks and Wildlife Code, and
1-10 adding a heading to Subchapter A to read as follows:
1-11 SUBCHAPTER A. FEDERAL-STATE AGREEMENTS
1-12 SECTION 2. Chapter 83, Parks and Wildlife Code, is amended
1-13 by adding Subchapter B to read as follows:
1-14 SUBCHAPTER B. CONSERVATION UNDER HABITAT PLAN
1-15 Sec. 83.011. DEFINITIONS. In this subchapter:
1-16 (1) "Development" has the meaning assigned the term
1-17 "new development" under Section 395.001, Local Government Code, but
1-18 does not include the construction, reconstruction, or addition to
1-19 fences, structures, or barns used to contain livestock or that
1-20 serve solely for agricultural use on land that is appraised under
1-21 Title 1, Tax Code, for agricultural use.
1-22 (2) "Development process surcharge" means an amount
1-23 that is assessed in addition to a development fee or assessment as
1-24 provided by Section 83.017 of this code.
2-1 (3) "Endangered species" means a species listed by the
2-2 United States Fish and Wildlife Service as endangered and subject
2-3 to protection under the federal Act.
2-4 (4) "Federal Act" means the federal Endangered Species
2-5 Act of 1973 (16 U.S.C. Section 1531 et seq.), as amended.
2-6 (5) "Federal permit" means a permit issued under
2-7 Section 10(a) of the federal Act (16 U.S.C. Section 1539) or other
2-8 provision of the federal Act that authorizes a regional habitat
2-9 plan.
2-10 (6) "Fiscal year" means the 12-month period beginning
2-11 October 1 and ending September 30 of each calendar year.
2-12 (7) "Governmental entity" means:
2-13 (A) a state agency; or
2-14 (B) a political subdivision of the state,
2-15 including:
2-16 (i) a municipality;
2-17 (ii) a county;
2-18 (iii) a conservation or reclamation
2-19 district, other than a river authority, created under Article III,
2-20 Section 52, or Article XVI, Section 59, of the Texas Constitution;
2-21 (iv) a public school district;
2-22 (v) a junior college or community college
2-23 district; or
2-24 (vi) a road utility district, emergency
2-25 communication district, or other special purpose district.
2-26 (8) "Habitat preserve" means an area acquired for and
2-27 dedicated to the protection of endangered species.
3-1 (9) "Plan" or "habitat plan" means a habitat
3-2 conservation plan developed under Section 83.006 of this code as a
3-3 prerequisite for and approved in conjunction with issuance of a
3-4 federal permit.
3-5 (10) "Plan participant" means a municipality, county,
3-6 or state agency that adopts a habitat plan as authorized by Section
3-7 83.015(a) of this code.
3-8 (11) "State agency" means:
3-9 (A) a board, commission, department, or other
3-10 agency in the executive branch of state government created by the
3-11 constitution or a statute of the state;
3-12 (B) an institution of higher education as
3-13 defined by Section 61.003, Education Code; or
3-14 (C) a river authority.
3-15 Sec. 83.012. PURPOSE. (a) The purpose of this subchapter
3-16 is to clarify the authority of certain governmental entities to
3-17 finance, implement, and enforce a habitat plan according to the
3-18 requirements of a federal permit, including:
3-19 (1) the authority to establish and collect certain
3-20 surcharges and to spend the revenues from those surcharges to carry
3-21 out the plan;
3-22 (2) the authority to manage habitat preserves;
3-23 (3) the authority to implement and enforce a habitat
3-24 plan through interlocal cooperation contracts under Chapter 791,
3-25 Government Code; and
3-26 (4) the authority to apply for and obtain a federal
3-27 permit.
4-1 (b) This subchapter does not constitute an endorsement by
4-2 the legislature of the federal Act or its application in this
4-3 state.
4-4 (c) It is the intent of the legislature to provide through a
4-5 habitat plan authorized under this subchapter for the protection of
4-6 all species in a county that are listed by the United States Fish
4-7 and Wildlife Service as endangered and to encourage plan
4-8 participants to add to the habitat plan those additional species
4-9 that are petitioned to the United States Fish and Wildlife Service
4-10 for listing as endangered or threatened.
4-11 Sec. 83.013. IMPLEMENTATION. (a) A county or municipality
4-12 may implement a habitat plan and associated federal permit under
4-13 this subchapter only if:
4-14 (1) the qualified voters of the municipality or
4-15 county, as appropriate, have authorized the issuance of bonds for
4-16 the purposes of conservation and protection of endangered species;
4-17 and
4-18 (2) the municipality or county, as appropriate, has
4-19 begun the first phase of an application for a federal permit to the
4-20 United States Fish and Wildlife Service before June 1, 1993,
4-21 including submission, at a minimum, of the background biology
4-22 concerning the endangered species.
4-23 (b) A county or municipality may not implement a habitat
4-24 plan under this subchapter if:
4-25 (1) the federal Act is repealed;
4-26 (2) the federal Act is amended so that the endangered
4-27 species that are subject to conservation and protection under the
5-1 federal permit cease to be listed as endangered by the United
5-2 States Fish and Wildlife Service; or
5-3 (3) the federal Act is amended in a manner that
5-4 reduces the habitat land of an endangered species subject to
5-5 conservation and protection under the federal permit to less than
5-6 50,000 acres in a county.
5-7 (c) A municipality may implement a habitat plan and
5-8 associated federal permit under this subchapter in the
5-9 municipality's extraterritorial jurisdiction only in that part of
5-10 the extraterritorial jurisdiction that is in:
5-11 (1) a county the qualified voters of which have
5-12 authorized the issuance of bonds for the purposes of conservation
5-13 and protection of endangered species; or
5-14 (2) a county of which the municipality is the county
5-15 seat, subject to the limitations of Section 83.017(e) of this code.
5-16 Sec. 83.014. LIMITATION OF POWERS; EXCLUSION OF LAND. (a)
5-17 Except as expressly provided, this subchapter does not:
5-18 (1) enlarge, expand, or limit the powers or authority
5-19 of any governmental entity;
5-20 (2) authorize a governmental entity to charge a fee to
5-21 be used for the implementation of a plan for the conservation and
5-22 protection of an endangered species; or
5-23 (3) authorize a plan participant to release any land
5-24 for use under the terms of a federal permit, except for public
5-25 works projects involving health and safety, until the habitat
5-26 preserve acquisition is complete.
5-27 (b) A plan participant may not impose any restrictions
6-1 related to endangered species on land outside a habitat preserve
6-2 once a federal permit has been issued.
6-3 (c) If property under common ownership lies both inside and
6-4 outside a habitat plan under this subchapter, the property shall be
6-5 excluded from the habitat plan unless the owners elect to be
6-6 included in the habitat plan.
6-7 Sec. 83.015. PLAN PARTICIPATION. (a) A municipality,
6-8 county, or river authority having jurisdiction in the area covered
6-9 by a habitat plan or a state agency may adopt and participate in
6-10 the plan, hold a federal permit individually or jointly, and
6-11 contract under Chapter 791, Government Code, to participate in the
6-12 plan.
6-13 (b) In order to accomplish the purposes of this subchapter,
6-14 a plan participant may contract with another governmental or
6-15 private entity to assist that entity in complying with the federal
6-16 Act by sharing the benefits and legal entitlements of the federal
6-17 permit with that governmental or private entity under such terms
6-18 and conditions acceptable to the parties, including but not limited
6-19 to such consideration as deemed necessary, notwithstanding any
6-20 other provisions of this subchapter.
6-21 (c) A contract authorized by this section may be made in
6-22 anticipation of federal approval of a habitat plan and issuance of
6-23 a federal permit associated with the plan.
6-24 Sec. 83.016. LEASE OR CONVEYANCE OF LAND. (a) A plan
6-25 participant may lease or convey land to another plan participant,
6-26 to a nonprofit corporation, or to an individual in exchange for
6-27 real or personal property for the purpose of establishing or
7-1 operating a habitat preserve under this subchapter.
7-2 (b) Requirements of Chapter 26 of this code, Section
7-3 253.001, Local Government Code, and Chapter 262, Local Government
7-4 Code, and other competitive bidding, public auction, or local
7-5 referendum requirements otherwise applicable to a lease or
7-6 conveyance of land by a governmental entity do not apply to a lease
7-7 or conveyance by a plan participant under this section.
7-8 Sec. 83.017. DEVELOPMENT PROCESS SURCHARGES. (a) A county
7-9 or municipality that is a plan participant may adopt ordinances,
7-10 rules, regulations, or orders imposing a development process
7-11 surcharge as provided by this subchapter on a development in its
7-12 jurisdiction.
7-13 (b) The development process surcharge shall be established
7-14 in the habitat plan. Subject to the restrictions of Subsection
7-15 (c), the development process surcharge may be assessed by:
7-16 (1) a municipality that is a plan participant in
7-17 addition to other development assessments charged by the
7-18 municipality; and
7-19 (2) by a county that is a plan participant in addition
7-20 to other fees collected by the county for any permits required
7-21 under its land use and control measures adopted under Subchapter I,
7-22 Chapter 16, Water Code.
7-23 (c) The development process surcharge may not be added to
7-24 any development assessment or fee unless that assessment or fee was
7-25 authorized and collected by the county or municipality on or before
7-26 January 1, 1993, and may not exceed the amount reasonably necessary
7-27 to implement the habitat plan and maintain the federal permit as
8-1 authorized by this subchapter.
8-2 (d) The development process surcharge may be adopted and
8-3 collected by a county only after the qualified voters of that
8-4 county have authorized the issuance of bonds for the conservation
8-5 and protection of endangered species.
8-6 (e) The development process surcharge may be adopted and
8-7 collected by a municipality inside its corporate limits only after
8-8 the qualified voters of the municipality have authorized the
8-9 issuance of bonds for the conservation and protection of endangered
8-10 species. The development process surcharge may be charged by a
8-11 municipality in its extraterritorial jurisdiction in a county only
8-12 after the qualified voters of the county have authorized the
8-13 issuance of bonds for the conservation and protection of endangered
8-14 species.
8-15 (f) A plan participant is exempt from a development process
8-16 surcharge authorized by this subchapter.
8-17 (g) A development process surcharge authorized by this
8-18 subchapter is not subject to Chapter 395, Local Government Code.
8-19 (h) Development process surcharges authorized under this
8-20 subchapter shall be reasonably calculated to fund, in conjunction
8-21 with all other funding sources, and may be spent only to pay for:
8-22 (1) implementation of the habitat plan, excluding land
8-23 acquisition;
8-24 (2) reasonable operation, maintenance, and management
8-25 expenses of the plan and habitat preserves;
8-26 (3) funding the endowment trust fund and capital
8-27 reserve established under the plan; and
9-1 (4) reasonable and necessary administrative costs
9-2 associated with the collection and expenditure of development
9-3 process surcharges.
9-4 (i) If a municipality and a county with concurrent
9-5 jurisdiction are both plan participants, the structure of the
9-6 development process surcharge shall be developed jointly by the
9-7 commissioners court of the county and the governing body of the
9-8 municipality.
9-9 (j) The amount of the development process surcharge shall be
9-10 coordinated and adopted annually by the commissioners court of a
9-11 county that is a plan participant and by the governing body of a
9-12 municipality that is a plan participant and shall be calculated to
9-13 meet projected funding needs for the purposes authorized by
9-14 Subsection (h) of this section.
9-15 (k) If the municipality or county denies the permit for
9-16 which the surcharge is assessed, the development surcharge shall be
9-17 refunded not later than the 30th day after the date of the denial,
9-18 with interest calculated on the development surcharge at the rate
9-19 of one percent each month for the period during which the surcharge
9-20 was assessed. If the surcharge is not refunded to the applicant
9-21 within the 30-day period, the interest rate shall thereafter be
9-22 computed at two percent each month until the surcharge is refunded.
9-23 (l) The development process surcharge may be assessed at
9-24 different rates for different classifications and locations of
9-25 development according to reasonably calculated levels of benefit to
9-26 be received by a development. A development process surcharge
9-27 assessed under this section may not vary by more than 100 percent
10-1 for the same classification of development.
10-2 (m) A municipality may not assess a development process
10-3 surcharge inside its corporate limits on a development in an area
10-4 that qualifies and is designated by the municipality as an area of
10-5 low and moderate income with pervasive poverty, unemployment, and
10-6 economic distress and of over 30 percent substandard housing
10-7 conditions for purposes of community block grants under the federal
10-8 Housing and Urban-Rural Recovery Act of 1983 (12 U.S.C. Section
10-9 1701 et seq.). In making the designation determination, the
10-10 municipality shall make specific findings for each of the criteria
10-11 after notice and public hearing.
10-12 (n) A county may not assess the development process
10-13 surcharge outside a municipality's corporate limits on a
10-14 development in an area that qualifies and is designated by the
10-15 county under the same criteria and procedures prescribed for a
10-16 municipality by Subsection (m) of this section.
10-17 Sec. 83.018. DISPOSITION OF FEES. (a) A municipality or
10-18 county that adopts and collects a development process surcharge
10-19 under Section 83.017 of this code shall deposit the surcharge
10-20 revenue in a dedicated fund in a separate account.
10-21 (b) A municipality or county annually shall prepare a budget
10-22 for proposed expenditures and an accounting of previous
10-23 expenditures from a surcharge revenue account under this section.
10-24 Sec. 83.019. ENDOWMENT FUND. The endowment trust fund
10-25 established under the habitat plan shall be administered as
10-26 provided by the plan.
10-27 Sec. 83.020. HABITAT PRESERVE MANAGEMENT. A plan
11-1 participant may adopt and enforce ordinances, rules, regulations,
11-2 or orders in a habitat preserve, in a manner consistent with the
11-3 habitat plan and federal permit associated with the plan, that
11-4 limit entry to and use of a habitat preserve owned or managed by
11-5 the plan participant, including:
11-6 (1) charging reasonable entry and use fees;
11-7 (2) regulating conduct in the habitat preserves that
11-8 is inconsistent with preserve purposes or that threatens the
11-9 health, safety, or welfare of persons or property in the preserves;
11-10 and
11-11 (3) regulating motorized and nonmotorized vehicular
11-12 traffic in habitat preserves, including entry, routes, speed, and
11-13 parking.
11-14 Sec. 83.021. NOTICE AND HEARING REQUIREMENTS. (a) A plan
11-15 participant must comply with the notice and hearing requirements of
11-16 this section before adopting any plan, plan amendment, ordinance,
11-17 budget, fee schedule, rule, regulation, or order to implement this
11-18 subchapter.
11-19 (b) The plan participant, individually or through interlocal
11-20 contract, shall publish a notice, including a brief description of
11-21 the proposed action and the time and place of a public hearing on
11-22 the proposed action, not later than the 30th day before the public
11-23 hearing in the newspaper of largest general circulation in the
11-24 county in which the plan participant proposing the action is
11-25 located.
11-26 (c) A public hearing on the proposed action shall be held at
11-27 the time and place specified in the notice.
12-1 (d) If the plan participant approves the proposed action,
12-2 the participant shall publish notice of approval of the proposed
12-3 action as prescribed by Subsection (b) of this section.
12-4 Sec. 83.022. CRIMINAL PENALTY. (a) A person who knowingly
12-5 violates a lawful ordinance, rule, regulation, or order adopted
12-6 under this subchapter commits an offense if the violation occurs in
12-7 a habitat preserve.
12-8 (b) An offense under this section is a Class C misdemeanor
12-9 and each violation is punishable by a fine not to exceed $2,000.
12-10 If the plan participant adopting the ordinance, rule, regulation,
12-11 or order has specified a more severe criminal penalty under the
12-12 authority of other state law, the more severe penalty applies.
12-13 Sec. 83.023. CIVIL PENALTY. (a) A person who knowingly
12-14 violates a lawful ordinance, rule, regulation, or order adopted
12-15 under this subchapter is subject to a civil penalty, in addition to
12-16 any criminal penalty, not to exceed $500 a day for each day of
12-17 violation if it is proven that:
12-18 (1) the violation occurred in a habitat preserve;
12-19 (2) the defendant was actually notified of the
12-20 ordinance, rule, regulation, or order adopted under this
12-21 subchapter; and
12-22 (3) after the defendant received notice of the
12-23 ordinance, rule, regulation, or order, the defendant committed acts
12-24 in violation of the ordinance, rule, regulation, or order or failed
12-25 to take action necessary for compliance with the ordinance, rule,
12-26 regulation, or order.
12-27 (b) A civil penalty collected under this section shall be
13-1 deposited with the plan participant in whose jurisdiction the
13-2 violation occurred and may be used in the same manner as that
13-3 prescribed for surcharges by Section 83.017(h) of this code.
13-4 (c) A plan participant may file suit to enjoin a threatened
13-5 or actual violation, to collect an unpaid assessment, or to collect
13-6 a civil penalty under this section.
13-7 SECTION 3. (a) The development process surcharge authorized
13-8 by Section 83.017, Parks and Wildlife Code, as added by this Act,
13-9 may not be collected by a plan participant, as defined in Section
13-10 83.011, Parks and Wildlife Code, as added by this Act, before the
13-11 issuance to the plan participant of a Section 10(a) permit under
13-12 the federal Endangered Species Act of 1973 (16 U.S.C. Section 1531
13-13 et seq.).
13-14 (b) A plan participant may not collect the development
13-15 process surcharge if the cumulative amount of the surcharge
13-16 collected by all plan participants exceeds the cumulative amount of
13-17 all funds expended, including bond proceeds and interest paid to
13-18 service the bond debt, by the plan participants for conservation
13-19 and protection of endangered species. In determining funds
13-20 expended by plan participants, funds received from the development
13-21 surcharge shall be excluded.
13-22 SECTION 4. To implement a habitat plan under Subchapter B,
13-23 Chapter 83, Parks and Wildlife Code, as added by this Act, the plan
13-24 participants shall make offers to the landowners for acquisition of
13-25 fee simple or other property interest of land designated in the
13-26 federal permit as habitat preserve not later than July 1, 1995.
13-27 SECTION 5. The Parks and Wildlife Commission shall, through
14-1 the creation of an advisory board if appropriate, and in
14-2 cooperation with any legislative interim study that may be
14-3 authorized, make recommendations to the legislature not later than
14-4 January 1, 1995, regarding amendments to this Act and the planning
14-5 process for habitat conservation plans.
14-6 SECTION 6. The imposition of a habitat mitigation fee of any
14-7 kind by a plan participant, as defined by Section 83.011, Parks and
14-8 Wildlife Code, as added by this Act, is expressly prohibited under
14-9 this Act.
14-10 SECTION 7. This Act takes effect September 1, 1993.
14-11 SECTION 8. The importance of this legislation and the
14-12 crowded condition of the calendars in both houses create an
14-13 emergency and an imperative public necessity that the
14-14 constitutional rule requiring bills to be read on three several
14-15 days in each house be suspended, and this rule is hereby suspended.