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.