BILL ANALYSIS C.S.H.B. 396 By: Turner, Bob April 30, 1995 Committee Report (Substituted) BACKGROUND During the interim of the 73rd Legislature, the House Natural Resources Committee had a series of hearings throughout the state in the course of pursuing information for the committee's interim report. A subcommittee of the Natural Resources Committee, the Subcommittee on Mitigation of Property Rights, received testimony regarding ways to mitigate conflicts between landowners' property rights and federal and state policies for the protection of threatened and endangered species and habitats. Testimony was received from diverse interests such as private landowners, environmentalists, and state agencies regarding the effects of state and federal regulations on the taxpayers of Texas. A landowner from Live Oak County testified that the Texas Department of Transportation was in the process of condemning his family's land to provide habitat for the endangered ocelot. TxDOT was in the process of widening Highway 281, and was being required by the U.S. Fish and Wildlife Service to provide this four acre area as replacement habitat for the ocelot. This action was being pursued despite the fact that the ranch had been in this individual's family for over 100 years, and to his knowledge there had never been an ocelot sighted on the property. TxDOT personnel also testified at the same hearing that, at the date of the hearing, the agency had not yet used its condemnation powers to satisfy mitigation requirements. The subcommittee concluded that "The process of mitigation arose as a central issue during the hearings. It has become a source of contention with state agencies and private individuals alike." The subcommittee also recommended that the legislature examine setting guidelines for state agencies that are required to mitigate. Considering that recommendation, there is some question as to whether or not the compensatory stage of the mitigation process actually qualifies under the urgent public need necessary to justify the use of the power of eminent domain. Stated another way, does the mitigation of adverse impacts to "potential" habitat justify the use of the power of condemnation by the state the same way as building a highway or constructing a pipeline to carry petroleum products to heat homes? Many taxpayers would argue that it does not. Legislation is necessary to ensure that the power of eminent domain is not abused by state agencies in the future, and that condemnation will only be used for those projects that result in the actual construction, maintenance, or modification of a structure that is desperately needed to ensure the health and safety of the citizens of Texas. PURPOSE The purpose of this legislation is to prohibit the use of condemnation for the purposes of mitigation by the state or a subdivision of the state with eminent domain authority. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1 Amends the heading of Subchapter A, Chapter 21, Property Code by striking "Jurisdiction" and adding in its place "General Provisions". SECTION 2 Amends Chapter 21, Property Code, by adding Section 21.004, which would prohibit the use of condemnation for the purposes of mitigation by the state or a political subdivision of the state with eminent domain authority. Also clarifies that this section controls over any other statutory grant of condemnation authority for mitigation purposes. Mitigation is defined in this section as the offsetting of the adverse effect of land use in environmentally sensitive areas as required by the federal government. SECTION 3 Statement of applicability. SECTION 4 Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute deletes the language in SECTION 2 of the original bill that made the bill apply to corporations with eminent domain authority. Thus, the prohibition on the use of eminent domain for mitigation purposes applies only to the state or a political subdivision of the state. Also, the substitute adds language providing that the provisions in Section 21.004 will control over any other grant of condemnation authority for mitigation purposes. SUMMARY OF COMMITTEE ACTION H.B. 396 was considered by the committee in a public hearing on April 25, 1995. The committee considered a complete substitute for the bill. The substitute was adopted without objection. The following person testified against the bill: Scott Royder, representing the Lone Star Chapter of the Sierra Club. The following persons testified neutrally on the bill: Bill Burnett, representing the Texas Department of Transportation; Robert Cuellar, representing the Texas Department of Transportation; R. H. Cory, representing the Central and Southwest Corporation; and Patrick Nugent, representing the Texas Pipe Association. An amendment was offered to the substitute. The amendment was adopted without objection. The bill was reported favorably as substituted, with the recommendation that it do pass and be printed, by a record vote of 6 ayes, 0 nays, 0 pnv, 3 absent. The chair directed the staff to incorporate the amendment into the substitute. In a formal meeting on April 26, 1995, the vote by which H.B. 396 was reported favorably as substituted was reconsidered by the committee without objection. The vote by which Committee Amendment No. 1 was adopted was reconsidered without objection. The amendment was withdrawn without objection. The vote by which the substitute for H.B. 396 was adopted was reconsidered without objection. An amendment was offered to the substitute. The amendment was adopted without objection. The substitute as amended was adopted without objection. The chair directed the staff to incorporate the amendment into the substitute. The bill was reported favorably as substituted, with the recommendation that it do pass and be printed, by a record vote of 7 ayes, 0 nays, 0 pnv, 2 absent.