1-1 By: Barrientos S.B. No. 880
1-2 (In the Senate - Filed March 11, 1993; March 16, 1993, read
1-3 first time and referred to Committee on Natural Resources;
1-4 May 7, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 8, Nays 0; May 7, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Sims x
1-10 Truan x
1-11 Armbrister x
1-12 Barrientos x
1-13 Bivins x
1-14 Brown x
1-15 Carriker x
1-16 Lucio x
1-17 Montford x
1-18 Ratliff x
1-19 Shelley x
1-20 COMMITTEE SUBSTITUTE FOR S.B. No. 880 By: Carriker
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to the authority of a local government or state agency to
1-24 implement a habitat plan to protect endangered species and to
1-25 impose reasonable and necessary fees under the plan; providing
1-26 criminal and civil penalties.
1-27 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-28 SECTION 1. Chapter 83, Parks and Wildlife Code, is amended
1-29 by designating Sections 83.001 through 83.006, Parks and Wildlife
1-30 Code, as Subchapter A, Chapter 83, Parks and Wildlife Code, and
1-31 adding a heading to Subchapter A to read as follows:
1-32 SUBCHAPTER A. FEDERAL-STATE AGREEMENTS
1-33 SECTION 2. Chapter 83, Parks and Wildlife Code, is amended
1-34 by adding Subchapter B to read as follows:
1-35 SUBCHAPTER B. CONSERVATION UNDER HABITAT PLAN
1-36 Sec. 83.011. DEFINITIONS. In this subchapter:
1-37 (1) "Development" has the meaning assigned the term
1-38 "new development" under Section 395.001, Local Government Code, but
1-39 does not include the construction, reconstruction, or addition to
1-40 fences, structures, or barns used to contain livestock or that
1-41 serve solely for agricultural use on land that is appraised under
1-42 Title 1, Tax Code, for agricultural use.
1-43 (2) "Federal Act" means the federal Endangered Species
1-44 Act of 1973 (16 U.S.C. Section 1531 et seq.).
1-45 (3) "Federal permit" means a permit issued under
1-46 Section 10(a) of the federal Act (16 U.S.C. Section 1539).
1-47 (4) "Fiscal year" means the 12-month period beginning
1-48 October 1 and ending September 30 of each calendar year.
1-49 (5) "Governmental entity" means:
1-50 (A) a state agency; or
1-51 (B) a political subdivision of the state,
1-52 including:
1-53 (i) a municipality;
1-54 (ii) a county;
1-55 (iii) a conservation or reclamation
1-56 district, other than a river authority, created under Article III,
1-57 Section 52, or Article XVI, Section 59, of the Texas Constitution;
1-58 (iv) a public school district;
1-59 (v) a junior college or community college
1-60 district; or
1-61 (vi) a road utility district, emergency
1-62 communication district, or other special purpose district.
1-63 (6) "Habitat preserve" means an area acquired for and
1-64 dedicated to the protection of endangered species.
1-65 (7) "Plan" or "habitat plan" means a habitat
1-66 conservation plan developed under Section 83.006 of this code as a
1-67 prerequisite for and approved in conjunction with issuance of a
1-68 federal permit.
2-1 (8) "Plan participant" means a municipality, county,
2-2 river authority, or state agency that adopts a habitat plan as
2-3 authorized by Section 83.015(a) of this code.
2-4 (9) "State agency" means:
2-5 (A) a board, commission, department, or other
2-6 agency in the executive branch of state government created by the
2-7 constitution or a statute of the state;
2-8 (B) an institution of higher education as
2-9 defined by Section 61.003, Education Code; or
2-10 (C) a river authority.
2-11 Sec. 83.012. PURPOSE. (a) The purpose of this subchapter
2-12 is to clarify the authority of certain governmental entities to
2-13 finance, implement, and enforce a habitat plan according to the
2-14 requirements of a federal permit, including:
2-15 (1) the authority to establish and collect certain
2-16 surcharges and to spend the revenues from those surcharges to carry
2-17 out the plan;
2-18 (2) the authority to manage habitat preserves;
2-19 (3) the authority to implement and enforce a habitat
2-20 plan through interlocal cooperation contracts under Chapter 791,
2-21 Government Code; and
2-22 (4) the authority to apply for and obtain a federal
2-23 permit.
2-24 (b) This subchapter does not constitute an endorsement by
2-25 the legislature of the federal Act or its application in this
2-26 state.
2-27 Sec. 83.013. IMPLEMENTATION. (a) A county or municipality
2-28 may implement a habitat plan and associated federal permit under
2-29 this subchapter only if:
2-30 (1) the qualified voters of the municipality or
2-31 county, as appropriate, have authorized the issuance of bonds for
2-32 the purposes of conservation and protection of endangered species;
2-33 and
2-34 (2) the municipality or county, as appropriate, has
2-35 begun the first phase of an application for a federal permit to the
2-36 United States Fish and Wildlife Service before June 1, 1993,
2-37 including submission, at a minimum, of the background biology
2-38 concerning the endangered species.
2-39 (b) A county or municipality may not implement a habitat
2-40 plan under this subchapter if:
2-41 (1) the federal Act is repealed;
2-42 (2) the federal Act is amended so that the endangered
2-43 species that are subject to conservation and protection under the
2-44 federal permit cease to be listed as endangered by the United
2-45 States Fish and Wildlife Service; or
2-46 (3) the federal Act is amended in a manner that
2-47 reduces the habitat land of an endangered species subject to
2-48 conservation and protection under the federal permit to less than
2-49 50,000 acres in a county.
2-50 (c) A municipality may implement a habitat plan and
2-51 associated federal permit under this subchapter in the
2-52 municipality's extraterritorial jurisdiction only in that part of
2-53 the extraterritorial jurisdiction that is in:
2-54 (1) a county the qualified voters of which have
2-55 authorized the issuance of bonds for the purposes of conservation
2-56 and protection of endangered species; or
2-57 (2) a county of which the municipality is the county
2-58 seat, subject to the limitations of Section 83.017(d) of this code.
2-59 Sec. 83.014. LIMITATION OF POWERS. Except as expressly
2-60 provided, this subchapter does not:
2-61 (1) enlarge, expand, or limit the powers or authority
2-62 of any governmental entity; or
2-63 (2) authorize a governmental entity to charge a fee to
2-64 be used for the implementation of a plan for the conservation and
2-65 protection of an endangered species.
2-66 Sec. 83.015. PLAN PARTICIPATION. (a) A municipality,
2-67 county, or river authority having jurisdiction in the area covered
2-68 by a habitat plan or a state agency may adopt and participate in
2-69 the plan, hold a federal permit individually or jointly, and
2-70 contract under Chapter 791, Government Code, to participate in the
3-1 plan.
3-2 (b) In order to accomplish the purposes of this subchapter,
3-3 a plan participant may contract with another governmental or
3-4 private entity to assist that entity in complying with the federal
3-5 Act by sharing the benefits and legal entitlements of the federal
3-6 permit with that governmental or private entity.
3-7 (c) A contract authorized by this section may be made in
3-8 anticipation of federal approval of a habitat plan and issuance of
3-9 a federal permit associated with the plan.
3-10 Sec. 83.016. LEASE OR CONVEYANCE OF LAND. (a) A plan
3-11 participant may lease or convey land to another plan participant,
3-12 to a nonprofit corporation, or to an individual in exchange for
3-13 real or personal property for the purpose of establishing or
3-14 operating a habitat preserve under this subchapter.
3-15 (b) Requirements of Chapter 26 of this code, Section
3-16 253.001, Local Government Code, and Chapter 262, Local Government
3-17 Code, and other competitive bidding, public auction, or local
3-18 referendum requirements otherwise applicable to a lease or
3-19 conveyance of land by a governmental entity do not apply to a lease
3-20 or conveyance by a plan participant under this section.
3-21 Sec. 83.017. DEVELOPMENT PROCESS SURCHARGES. (a) A county
3-22 or municipality that is a plan participant may adopt ordinances,
3-23 rules, regulations, or orders imposing a development process
3-24 surcharge as provided by this subchapter on a development in its
3-25 jurisdiction.
3-26 (b) The development process surcharge shall be established
3-27 in the habitat plan. The development process surcharge may be
3-28 assessed by:
3-29 (1) a municipality that is a plan participant in
3-30 addition to other development assessments charged by the
3-31 municipality; and
3-32 (2) by a county that is a plan participant in addition
3-33 to other fees collected by the county for any permits required
3-34 under its land use and control measures adopted under Subchapter I,
3-35 Chapter 16, Water Code.
3-36 (c) The development process surcharge may be adopted and
3-37 collected by a county only after the qualified voters of that
3-38 county have authorized the issuance of bonds for the conservation
3-39 and protection of endangered species.
3-40 (d) The development process surcharge may be adopted and
3-41 collected by a municipality inside its corporate limits only after
3-42 the qualified voters of the municipality have authorized the
3-43 issuance of bonds for the conservation and protection of endangered
3-44 species. The development process surcharge may be charged by a
3-45 municipality in its extraterritorial jurisdiction in a county only
3-46 after the qualified voters of the county have authorized the
3-47 issuance of bonds for the conservation and protection of endangered
3-48 species.
3-49 (e) A plan participant is exempt from a development process
3-50 surcharge authorized by this subchapter.
3-51 (f) A development process surcharge authorized by this
3-52 subchapter is not subject to Chapter 395, Local Government Code.
3-53 (g) Development process surcharges authorized under this
3-54 subchapter shall be reasonably calculated to fund, in conjunction
3-55 with all other funding sources, and may be spent only to pay for:
3-56 (1) implementation of the habitat plan;
3-57 (2) operation, maintenance, and management expenses of
3-58 the plan and habitat preserves;
3-59 (3) funding the endowment trust fund and capital
3-60 reserve established under the plan; and
3-61 (4) reasonable and necessary administrative costs
3-62 associated with the collection and expenditure of development
3-63 process surcharges.
3-64 (h) If a municipality and a county with concurrent
3-65 jurisdiction are both plan participants, the structure of the
3-66 development process surcharge shall be developed jointly by the
3-67 commissioners court of the county and the governing body of the
3-68 municipality.
3-69 (i) The amount of the development process surcharge shall be
3-70 coordinated and adopted annually by the commissioners court of a
4-1 county that is a plan participant and by the governing body of a
4-2 municipality that is a plan participant and shall be calculated to
4-3 meet projected funding needs for the purposes authorized by
4-4 Subsection (g) of this section.
4-5 (j) The development process surcharge may be assessed at
4-6 different rates for different classifications and locations of
4-7 development according to reasonably calculated levels of benefit to
4-8 be received by a development. A development process surcharge
4-9 assessed under this section may not vary by more than 100 percent
4-10 for the same classification of development.
4-11 (k) A municipality may not assess a development process
4-12 surcharge inside its corporate limits on a development in an area
4-13 that qualifies and is designated by the municipality as an area of
4-14 low and moderate income with pervasive poverty, unemployment, and
4-15 economic distress and of over 30 percent substandard housing
4-16 conditions for purposes of community block grants under the federal
4-17 Housing and Urban-Rural Recovery Act of 1983 (12 U.S.C. Section
4-18 1701 et seq.). In making the designation determination, the
4-19 municipality shall make specific findings for each of the criteria
4-20 after notice and public hearing.
4-21 (l) A county may not assess the development process
4-22 surcharge outside a municipality's corporate limits on a
4-23 development in an area that qualifies and is designated by the
4-24 county under the same criteria and procedures prescribed for a
4-25 municipality by Subsection (k) of this section.
4-26 Sec. 83.018. DISPOSITION OF FEES. (a) A municipality or
4-27 county that adopts and collects a development process surcharge
4-28 under Section 83.017 of this code shall deposit the surcharge
4-29 revenue in a dedicated fund in a separate account.
4-30 (b) A municipality or county annually shall prepare a budget
4-31 for proposed expenditures and an accounting of previous
4-32 expenditures from a surcharge revenue account under this section.
4-33 Sec. 83.019. ENDOWMENT FUND. The endowment trust fund
4-34 established under the habitat plan shall be administered as
4-35 provided by the plan.
4-36 Sec. 83.020. HABITAT PRESERVE MANAGEMENT. A plan
4-37 participant may adopt and enforce ordinances, rules, regulations,
4-38 or orders in a habitat preserve, in a manner consistent with the
4-39 habitat plan and federal permit associated with the plan, that
4-40 limit entry to and use of a habitat preserve owned or managed by
4-41 the plan participant, including:
4-42 (1) charging reasonable entry and use fees;
4-43 (2) regulating conduct in the habitat preserves that
4-44 is inconsistent with preserve purposes or that threatens the
4-45 health, safety, or welfare of persons or property in the preserves;
4-46 and
4-47 (3) regulating motorized and nonmotorized vehicular
4-48 traffic in habitat preserves, including entry, routes, speed, and
4-49 parking.
4-50 Sec. 83.021. NOTICE AND HEARING REQUIREMENTS. (a) A plan
4-51 participant must comply with the notice and hearing requirements of
4-52 this section before adopting any plan amendment, ordinance, rule,
4-53 regulation, or order to implement this subchapter.
4-54 (b) The plan participant, individually or through interlocal
4-55 contract, shall publish a notice, including a brief description of
4-56 the proposed action and the time and place of a public hearing on
4-57 the proposed action, not later than the 30th day before the public
4-58 hearing in the newspaper of largest general circulation in the
4-59 county in which the plan participant proposing the action is
4-60 located.
4-61 (c) A public hearing on the proposed action shall be held at
4-62 the time and place specified in the notice.
4-63 (d) If the plan participant approves the proposed action,
4-64 the participant shall publish notice of approval of the proposed
4-65 action as prescribed by Subsection (b) of this section.
4-66 Sec. 83.022. CRIMINAL PENALTY. (a) A person who knowingly
4-67 violates an ordinance, rule, regulation, or order adopted under
4-68 this subchapter commits an offense.
4-69 (b) An offense under this section is a Class C misdemeanor
4-70 and each violation is punishable by a fine not to exceed $2,000.
5-1 If the plan participant adopting the ordinance, rule, regulation,
5-2 or order has specified a more severe criminal penalty under the
5-3 authority of other state law, the more severe penalty applies.
5-4 Sec. 83.023. CIVIL PENALTY. (a) A person who knowingly
5-5 violates an ordinance, rule, regulation, or order adopted under
5-6 this subchapter is subject to a civil penalty, in addition to any
5-7 criminal penalty, not to exceed $500 a day for each day of
5-8 violation if it is proven that:
5-9 (1) the defendant was actually notified of the
5-10 ordinance, rule, regulation, or order adopted under this
5-11 subchapter; and
5-12 (2) after the defendant received notice of the
5-13 ordinance, rule, regulation, or order, the defendant committed acts
5-14 in violation of the ordinance, rule, regulation, or order or failed
5-15 to take action necessary for compliance with the ordinance, rule,
5-16 regulation, or order.
5-17 (b) A civil penalty collected under this section shall be
5-18 deposited with the plan participant in whose jurisdiction the
5-19 violation occurred and may be used in the same manner as that
5-20 prescribed for surcharges by Section 83.017(g) of this code.
5-21 (c) A plan participant may file suit to enjoin a threatened
5-22 or actual violation, to collect an unpaid assessment, or to collect
5-23 a civil penalty under this section.
5-24 SECTION 3. (a) The development process surcharge authorized
5-25 by Section 83.017, Parks and Wildlife Code, as added by this Act,
5-26 may not be collected by a plan participant, as defined in Section
5-27 83.011, Parks and Wildlife Code, as added by this Act, before the
5-28 issuance to the plan participant of a Section 10(a) permit under
5-29 the federal Endangered Species Act of 1973 (16 U.S.C. Section 1531
5-30 et seq.).
5-31 (b) A plan participant may not collect the development
5-32 process surcharge if the cumulative amount of the surcharge
5-33 collected by all plan participants exceeds the cumulative amount of
5-34 bond proceeds expended and interest paid to service the bond debt
5-35 by the plan participants for conservation and protection of
5-36 endangered species.
5-37 SECTION 4. The Parks and Wildlife Commission shall, through
5-38 the creation of an advisory board if appropriate, and in
5-39 cooperation with any legislative interim study that may be
5-40 authorized, make recommendations to the legislature not later than
5-41 January 1, 1995, regarding amendments to this Act and the planning
5-42 process for habitat conservation plans.
5-43 SECTION 5. This Act takes effect September 1, 1993.
5-44 SECTION 6. The importance of this legislation and the
5-45 crowded condition of the calendars in both houses create an
5-46 emergency and an imperative public necessity that the
5-47 constitutional rule requiring bills to be read on three several
5-48 days in each house be suspended, and this rule is hereby suspended.
5-49 * * * * *
5-50 Austin,
5-51 Texas
5-52 May 7, 1993
5-53 Hon. Bob Bullock
5-54 President of the Senate
5-55 Sir:
5-56 We, your Committee on Natural Resources to which was referred S.B.
5-57 No. 880, have had the same under consideration, and I am instructed
5-58 to report it back to the Senate with the recommendation that it do
5-59 not pass, but that the Committee Substitute adopted in lieu thereof
5-60 do pass and be printed.
5-61 Sims,
5-62 Chairman
5-63 * * * * *
5-64 WITNESSES
5-65 FOR AGAINST ON
5-66 ___________________________________________________________________
5-67 Name: Bill Aleshire x
5-68 Representing: Travis County
5-69 City: Austin
5-70 -------------------------------------------------------------------
6-1 Name: Valarie S. Bristol x
6-2 Representing: Travis County
6-3 City: Austin
6-4 -------------------------------------------------------------------
6-5 Name: Barbara Carlson x
6-6 Representing: Travis County
6-7 City: Austin
6-8 -------------------------------------------------------------------
6-9 Name: Robert Joseph Kleeman x
6-10 Representing: Self
6-11 City: Austin
6-12 -------------------------------------------------------------------
6-13 Name: John Charles Lewis x
6-14 Representing: Hill Country Property Owners
6-15 City: Austin
6-16 -------------------------------------------------------------------
6-17 Name: Don Walden x
6-18 Representing: Self
6-19 City: Austin
6-20 -------------------------------------------------------------------
6-21 Name: Robert R. Brandes x
6-22 Representing: Self
6-23 City: Austin
6-24 -------------------------------------------------------------------
6-25 Name: Fred A. Purcell x
6-26 Representing: Tomen Parke Association
6-27 City: Austin
6-28 -------------------------------------------------------------------
6-29 Name: Andrew H. Sansom x
6-30 Representing: Tx Parks & Wildlife
6-31 City: Austin
6-32 -------------------------------------------------------------------
6-33 Name: Dr. Larry McKinney x
6-34 Representing: Tx Parks & Wildlife
6-35 City: Austin
6-36 -------------------------------------------------------------------
6-37 Name: William Laird Fowler x
6-38 Representing: Tx Parks & Wildlife
6-39 City: Austin
6-40 -------------------------------------------------------------------
6-41 Name: Austan Librach x
6-42 Representing: City of Austin
6-43 City: Austin
6-44 -------------------------------------------------------------------
6-45 Name: Mitzi I. Cotton x
6-46 Representing: City of Austin
6-47 City: Austin
6-48 -------------------------------------------------------------------
6-49 Name: Howard Burris x
6-50 Representing: Jester Land MGMT
6-51 City: Austin
6-52 -------------------------------------------------------------------