By: Barrientos S.B. No. 880 A BILL TO BE ENTITLED AN ACT 1-1 relating to the authority of local governments and state agencies 1-2 to implement regional plans for endangered species protection and 1-3 to impose reasonable and necessary fees pursuant thereto. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 83, Parks and Wildlife Code, is amended 1-6 by adding Subchapter B to read as follows: 1-7 SUBCHAPTER B. CONSERVATION OF ENDANGERED SPECIES 1-8 PURSUANT TO A REGIONAL PLAN 1-9 SECTION 83.010. DEFINITIONS. In this subchapter: 1-10 (1) "Capital improvement project" means construction 1-11 or establishment of any public or private water supply, treatment, 1-12 or distribution facility; public or private wastewater disposal, 1-13 collection, or treatment facility; public or private storm water 1-14 drainage, or flood control facility; public or private electrical 1-15 generation or distribution facility or other utility; public 1-16 transportation, street, road, or highway facility; or public 1-17 building or facility, including but not limited to, recreational, 1-18 research, police, fire fighting, or other building constructed or 1-19 financed in whole or in part with public funds. 1-20 (2) "Federal permit" means a permit issued under 1-21 Section 10(a) the Federal Endangered Species Act. 1-22 (3) "Fiscal year" means a twelve month period 1-23 beginning October 1 and ending September 30 of each calendar year. 2-1 (4) "Government entity" means an agency, department, 2-2 institute of higher education, board, or commission of the State of 2-3 Texas; or a political subdivision of the State of Texas, including 2-4 a municipality, county, river authority, conservation and 2-5 reclamation district, school district, junior or community college 2-6 or district, water control and improvement district, drainage 2-7 district, irrigation district, water supply district, soil and 2-8 water conservation district, underground water district, 2-9 municipality utility district, road utility district, emergency 2-10 communication district, or other special purpose district. 2-11 (5) "Habitat preserve" means those areas acquired to 2-12 protect endangered species. 2-13 (6) "Plan" or "regional plan" means a regional habitat 2-14 conservation plan developed and approved in conjunction with 2-15 issuance of a federal permit. 2-16 (7) "Plan Participant" means a government entity which 2-17 adopts a regional plan. 2-18 (8) "Public Institution" means a government entity as 2-19 defined herein, or a public utility. 2-20 (9) "Public Works Project" means a capital improvement 2-21 which is not a public building. 2-22 SECTION 83.011 APPLICABILITY 2-23 (a) This subchapter applies only to a regional plan and 2-24 associated federal permit in a county or a municipality wherein the 2-25 qualified voters have authorized the issuance of bonds for the 3-1 purposes of conservation and protection of endangered species. 3-2 (b) This subchapter applies to a regional plan and 3-3 associated federal permit in the extraterritorial jurisdiction of a 3-4 municipality wherein the qualified voters have authorized the 3-5 issuance of bonds for the purposes of conservation and protection 3-6 of endangered species only where: 3-7 (1) the municipality's extraterritorial jurisdiction 3-8 falls within a county wherein the qualified voters of the county 3-9 have authorized the issuance of bonds for the purposes of 3-10 conservation and protection of endangered species, or 3-11 (2) the municipality's extraterritorial jurisdiction 3-12 falls within a county for which the municipality is the county 3-13 seat, subject to the limitations in Section 83.019(b). 3-14 SECTION 83.012 PURPOSE 3-15 The purpose of this subchapter is to clarify the authority of 3-16 certain government entities to finance, implement, and enforce a 3-17 regional plan pursuant to the requirements of a federal permit 3-18 including the following: 3-19 (1) authority to establish and collect certain 3-20 assessments, surcharges, and fees and to expend the revenues 3-21 therefrom to carry out the plan; 3-22 (2) authority to manage habitat preserves; 3-23 (3) authority to implement and enforce a regional plan 3-24 through interlocal cooperation contracts under Chapter 791, Texas 3-25 Government Code; and 4-1 (4) authority to apply for and obtain a federal 4-2 permit. 4-3 SECTION 83.013 PLAN PARTICIPATION AND FUNCTIONS 4-4 (a) Any city, county, or river authority having jurisdiction 4-5 within the area covered by the plan, and any agency or department 4-6 of the State may adopt and participate in a regional plan, hold a 4-7 federal permit individually or jointly, and contract under the 4-8 Interlocal Cooperation Act, Chapter 791, Texas Government Code, to 4-9 participate in the plan. 4-10 (b) Pursuant to an interlocal contract, a plan participant 4-11 may delegate the power to: 4-12 (1) apply its ordinances, rules, regulations and 4-13 orders; and 4-14 (2) carry out management or administrative functions, 4-15 including collection and expenditures of assessments, surcharges, 4-16 and fees. 4-17 (c) Contracts under this section may be entered into in 4-18 anticipation of approval of a plan and issuance of a federal 4-19 permit. 4-20 SECTION 83.014. HABITAT PRESERVE MANAGEMENT. 4-21 (a) A plan participant may adopt and enforce ordinances, 4-22 rules, regulations, or orders in a manner consistent with the plan 4-23 and federal permit that limit entry to and use of habitat preserves 4-24 owned or managed by the plan participant, including but not limited 4-25 to: 5-1 (1) charging reasonable fees for such entry and use; 5-2 (2) regulating conduct in the habitat preserves that 5-3 is inconsistent with preserve purposes or that threatens the 5-4 health, safety, or welfare of persons or property within the 5-5 preserves; and 5-6 (3) regulating motorized and nonmotorized vehicular 5-7 traffic in habitat preserves, including entry, routes, speed, and 5-8 parking. 5-9 (b) A plan participant may lease or convey land to a plan 5-10 participant, to a non-profit corporation, or to an individual in 5-11 exchange for real or personal property, for the purposes of 5-12 establishing or operating a habitat preserve under this subchapter. 5-13 Requirements of chapter 26 of the Parks and Wildlife Code, Section 5-14 253.001 and Chapter 262 of the Local Government Code, and any other 5-15 competitive bidding, public auction, or local referendum 5-16 requirements ordinarily applicable to a lease or conveyance of land 5-17 by a plan participant shall not apply to a lease or conveyance 5-18 under this subsection. 5-19 SECTION 83.015. LIMITATION OF POWERS 5-20 Except as expressly provided, nothing in this subchapter 5-21 enlarges, expands, or limits the powers or authority of any 5-22 government entity. 5-23 SECTION 83.016. AUTHORITY TO CHARGE FEES TO ACQUIRE AND 5-24 MANAGE HABITAT PRESERVES 5-25 (a) As specified in the following sections of this 6-1 subchapter, counties and municipalities are authorized to adopt 6-2 ordinances, rules, regulations, or orders imposing fees and 6-3 surcharges specified in this subchapter on any development, or 6-4 capital improvement project within its jurisdictional area 6-5 including state highway projects and other state-funded capital 6-6 improvement projects. 6-7 (b) Plan participants, and their electric wholesale 6-8 customers, shall be exempt from any surcharge or fees authorized 6-9 under this subchapter. 6-10 (c) Any surcharge or fee authorized under this subchapter is 6-11 not subject to Chapter 395 of the Local Government Code. 6-12 (d) Mitigation fees authorized under this subchapter shall 6-13 be expended only for the limited purpose of implementing the plan, 6-14 financing habitat preserve acquisition, funding operations, 6-15 maintenance and management expenses of the plan, funding the 6-16 endowment trust fund, and paying reasonable and necessary costs 6-17 associated with administering collection and expenditure of 6-18 mitigation fees. 6-19 (e) Surcharges authorized under this subchapter shall be 6-20 expended only for the limited purpose of implementing the plan, 6-21 funding operation, maintenance and management expenses of the plan, 6-22 funding the endowment trust fund, and paying reasonable and 6-23 necessary costs associated with administering collection and 6-24 expenditure of surcharges. 6-25 (f) Surcharges and fees authorized under this subchapter 7-1 shall be reasonably calculated, in conjunction with all other 7-2 funding sources, to fund implementation of the plan, including but 7-3 not limited to: 7-4 (1) respective items listed in subsections (d) and (e) 7-5 above, 7-6 (2) land management, 7-7 (3) public education, 7-8 (4) research, 7-9 (5) monitoring, 7-10 (6) enforcement, and 7-11 (7) a working capital reserve. 7-12 SECTION 83.017. HABITAT MITIGATION FEE 7-13 (a) The habitat mitigation fee shall be a voluntary 7-14 assessment, to be paid by parties engaged in developments which 7-15 require permitting under the Federal Endangered Species Act, other 7-16 than capital improvement projects, in return for the legal and 7-17 economic benefits of the plan. For those voluntary participants 7-18 with property located within the municipality's corporate limits or 7-19 the extraterritorial jurisdiction, the habitat mitigation fee shall 7-20 be paid to the municipality only and not to the county. A 7-21 voluntary participant with property located outside the 7-22 municipality's extraterritorial jurisdiction shall pay the habitat 7-23 mitigation fee only to the county and not to the municipality. 7-24 (b) The habitat mitigation fee formula shall be established 7-25 in the plan, but shall not exceed $1,500 per gross acre of 8-1 subdivision platting or site development at the inception of the 8-2 plan, indexed annually at a rate not to exceed 4.0 percent or the 8-3 percent rate of increase of the Consumer Price Index as published 8-4 monthly in the Survey of Current Business of the United States 8-5 Department of Commerce, Bureau of Economic Analysis, whichever is 8-6 higher. Real property of equivalent value (such value to be 8-7 determined by the value assessed by the county central appraisal 8-8 district) may be donated in lieu of payment of the habitat 8-9 mitigation fee at the discretion of the plan participants as set 8-10 forth in the plan. 8-11 (c) The habitat mitigation fee shall be discontinued upon: 8-12 (1) completion of the land acquisition program by plan 8-13 participants as established in the plan, and 8-14 (2) implementation of a development process surcharge 8-15 by a county. 8-16 SECTION 83.018. CAPITAL IMPROVEMENT PROJECT MITIGATION FEE 8-17 (a) The capital improvement project mitigation fee shall be 8-18 a voluntary assessment, to be paid by public institutions engaged 8-19 in a capital improvement project which requires permitting under 8-20 the Federal Endangered Species Act in return for the legal and 8-21 economic benefits of the plan. 8-22 (b) The capital improvement project mitigation fee formula 8-23 shall be established in the plan, but shall not exceed: 8-24 (1) 2% of the total project cost for public works 8-25 projects, or 9-1 (2) The equivalent of the habitat mitigation fee for 9-2 public building construction. 9-3 SECTION 83.019. DEVELOPMENT PROCESS SURCHARGE 9-4 (a) The development process surcharge shall be established 9-5 in the plan, and may be added to all development assessments 9-6 charged by a municipality which is a plan participant and to all 9-7 fees collected by a county which is a plan participant for any 9-8 permits required under its land use and control measures adopted 9-9 pursuant to Chapter 16, Subchapter I, Texas Water Code. 9-10 (b) The development process surcharge shall be implemented 9-11 by a county only after authorization by the qualified voters of 9-12 that county of either the assessment of fees or the issuance of 9-13 bonds for the purposes of conservation and protection of endangered 9-14 species. The development process surcharge shall be charged by a 9-15 municipality in its extraterritorial jurisdiction within a county 9-16 only upon implementation by that county of the development process 9-17 surcharge. 9-18 (c) The development process surcharge shall be placed in a 9-19 dedicated fund to be used solely for the uses set forth in section 9-20 83.016 of this subchapter. 9-21 (d) In the case of a municipality and a county with 9-22 concurrent jurisdiction where both are plan participants, the 9-23 structure of the development process surcharge shall be developed 9-24 jointly by the Commissioners Court of a county and by the City 9-25 Council of a municipality. 10-1 (e) The amount of the development process surcharge shall be 10-2 coordinated and adopted annually by the Commissioners Court of a 10-3 county which is a plan participant and by the City Council of a 10-4 municipality which is a plan participant and shall be calculated to 10-5 meet projected funding needs based upon the following: 10-6 (1) operation, maintenance, and management 10-7 requirements for the plan, 10-8 (2) funding an endowment trust fund sufficient to 10-9 provide resources for, at an annual interest rate of 6.0%, one-half 10-10 of the projected operation, maintenance and management requirements 10-11 at year 30 of the plan, and 10-12 (3) a working capital reserve of $1,000,000.00. 10-13 (f) The development process surcharge may provide for 10-14 different levels of surcharge for different classifications of 10-15 development based upon a reasonable calculation of the level of 10-16 benefit received by the development. 10-17 (g) The development process surcharge shall not be assessed 10-18 by a municipality within its city limits on a development within an 10-19 area that qualifies and is designated by a municipality as an area 10-20 of low and moderate income with pervasive poverty, unemployment, 10-21 and economic distress, and of over 30% substandard housing 10-22 conditions for purposes of Community Block Grants (CDBG) pursuant 10-23 to the U.S. Housing and Urban-Rural Recovery Act of 1983. In 10-24 making the designation determination, the municipality shall make 10-25 specific findings for each of the criteria after notice and public 11-1 hearing. 11-2 (h) Outside a municipality's city limits the development 11-3 process surcharge shall not be assessed by a county on a 11-4 development within an area that qualifies and is designated by a 11-5 county under the same criteria and procedures utilized by a 11-6 municipality in the foregoing subsection. 11-7 SECTION 83.020. NOTICE AND HEARING REQUIREMENTS 11-8 (a) A plan participant shall comply with the notice and 11-9 hearing requirements of this section prior to adopting an 11-10 ordinance, rule, or regulation to implement this subchapter. 11-11 (b) The plan participant, individually or through interlocal 11-12 contract, shall publish a notice including a brief description of 11-13 the proposed action and the time and place of a public hearing on 11-14 the proposed action. The notice shall be filed at least 30 days 11-15 prior to the public hearing in the newspaper of largest general 11-16 circulation in the county in which the plan participant proposing 11-17 the action is located. 11-18 (c) A public hearing on the proposed action shall be held at 11-19 the time and place specified in the notice. 11-20 (d) If the plan participant approves the proposed action, it 11-21 shall publish notice of its action in the manner prescribed in 11-22 subsection (b) of this Section. 11-23 SECTION 83.021. ENFORCEMENT 11-24 (a) It shall be unlawful for any person to knowingly or 11-25 intentionally violate any ordinance, rule, regulation, or order 12-1 adopted under this Subchapter. 12-2 (b) An offense under this section is a Class C misdemeanor 12-3 and each violation shall be punished by a fine not to exceed 12-4 $2,000, unless the plan participant adopting the ordinance, rule, 12-5 regulation, or order has specified a different criminal penalty 12-6 pursuant to other authority granted by law by this state, in which 12-7 case the more severe penalty applies. 12-8 (c) A person who commits an offense is also subject to a 12-9 civil penalty not to exceed $500.00 per day for each day of the 12-10 offense if it is proven that: 12-11 (1) the defendant was actually notified of the 12-12 provisions of the ordinance, rule, regulation or order adopted 12-13 under this Subchapter; and 12-14 (2) after the defendant received notice of the 12-15 ordinance, rule, regulations or order provisions, the defendant 12-16 committed acts in violation of the ordinance, rule, regulation or 12-17 order or failed to take action necessary for compliance with the 12-18 ordinance, rule, regulation or order. 12-19 (d) Civil penalties collected under this Section shall be 12-20 deposited with the plan participant in whose jurisdiction the 12-21 violation occurred and may be used in the same manner as 12-22 assessments under Section 83.019 of this Chapter. 12-23 (e) A plan participant may file suit to enjoin a threatened 12-24 or actual offense, to collect unpaid assessments, and to collect 12-25 civil penalties under this Section. 13-1 SECTION 2. The importance of this legislation and the 13-2 crowded condition of the calendars in both houses create an 13-3 emergency and an imperative public necessity that the 13-4 constitutional rule requiring bills to be read on three several 13-5 days in each house be suspended, and this rule is hereby suspended, 13-6 and that this Act take effect and be in force from and after its 13-7 passage, and it is so enacted.