BILL ANALYSIS
H.B. 1823
By: Bosse (Sponsor)
Natural Resources
05-19-95
Senate Committee Report (Unamended)
BACKGROUND
Chapter 86, Parks and Wildlife Code, grants the Parks and Wildlife
Commission the authority to manage, control, and protect marl and
sand of commercial value and all gravel, shell, and mudshell
located within tidewater limits and within the freshwater areas of
the state. The current rules, however, do not allow the commission
discretion to exercise flexibility in the regulatory process
regarding such issues.
PURPOSE
As proposed, H.B. 1823 expands the authority of the Parks and
Wildlife Commission relating to the taking of marl, sand, gravel,
shell, or mudshell; provides penalties.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the Parks and Wildlife Commission under SECTIONS 2, 4, and 5
(Sections 86.007(a), 86.020, and 86.021(a), Parks and Wildlife
Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 86.004, Parks and Wildlife Code, to
authorize the Parks and Wildlife Commission (commission) to grant
a permit to an applicant who has complied with all the requirements
of the commission if the commission finds that the disturbing,
taking, and carrying away of marl, sand, gravel, shell, or mudshell
will not, among other conditions, damage or injuriously affect any
wildlife in or near the water used in the operation; significantly
and injuriously change the hydrology of the river; significantly
increase downstream nonpoint source pollution; and significantly
accelerate erosion upstream or downstream from the place where the
taking occurs.
SECTION 2. Amends Section 86.007, Parks and Wildlife Code, as
follows:
Sec. 86.007. New heading: PERMIT BY RULE. (a) Authorizes the
commission, by rule, to establish conditions under which
specified activities are authorized without the requirement of
individual permits under this chapter. Considers an activity
conducted in accordance with those conditions to be under a
permit.
(b) Requires rules adopted under this section to require a
person proposing to rely on the authorization provided for
by this section to notify the Parks and Wildlife Department
(department), and to report to the department during and
after the activity. Authorizes the rules to provide for a
waiver of the requirement for advance notification in an
emergency. Authorizes the commission to require a
nonrefundable processing fee to be submitted with the
notification.
(c) Authorizes the department to require an individual
permit for any proposed activity.
(d) Requires the rules to require public notification of the
proposed activity to provide the public with an opportunity
to comment on the appropriateness of requiring an individual
permit.
(e) Requires the rules to establish best management
practices that must be followed to minimize the potential
adverse effects on resources under the commission's
jurisdiction. Deletes a provision stating that a permit
issued under this chapter is not assignable.
SECTION 3. Amends Section 86.011, Parks and Wildlife Code, as
follows:
Sec. 86.011. New heading: DELEGATION OF AUTHORITY. (a)
Authorizes the commission to delegate to the executive
director of the department (executive director) authority to
grant uncontested permits under this section under certain
conditions.
(b) Requires the commission, on request by the applicant or
a concerned person with a justiciable interest, to review an
application. Deletes language prohibiting the granting of
special privileges or exclusive rights.
SECTION 4. Amends Section 86.020, Parks and Wildlife Code, as
follows:
Sec. 86.020. New heading: RULES. Authorizes the commission
to adopt rules to govern certain items. Deletes language
relating to an offense.
SECTION 5. Amends Chapter 86, Parks and Wildlife Code, by adding
Sections 86.021-86.027, as follows:
Sec. 86.021. EXEMPTIONS. (a) Requires the commission, by
rule, to exempt the projects listed in Subsection (b) from any
permit requirement or payment to the department for materials
removed if the commission finds that the state will not be
deprived of significant revenue and there will be no
significant adverse effects on navigation, the coastal
sediment budget, riverine hydrology, erosion, or fish and
wildlife resources or their habitat.
(b) Sets forth projects that may be exempted under
Subsection (a).
(c) Authorizes the commission to require the performance of
scientific studies as needed to determine the cumulative
effect of permitted operations in a watershed on natural
resources using the criteria described by Section 86.004,
and to provide for a permit holder to participate in the
performance of those studies. Authorizes the commission to
reimburse a participating permit holder for costs incurred
by the permit holder in performing the study in a certain
amount. Prohibits total reimbursements to all participating
permit holders from exceeding one-half the total cost of the
study.
Sec. 86.022. PENALTY. Provides that a person who violates
Section 86.002 or 86.018 commits a Class C Parks and Wildlife
misdemeanor.
Sec. 86.023. LIABILITY FOR VALUE OF MATERIAL TAKEN. Makes a
person who takes marl, sand, gravel, shell, or mudshell under
the jurisdiction of the commission in violation of this
chapter liable to the state for the value of the material
taken and any other natural resource under the department's
jurisdiction that is damaged or diminished in value.
Sec. 86.024. CIVIL PENALTY. Subjects a person who violates
this chapter to a civil penalty of not less than $100 or more
than $10,000 for each act and each day of violation, to be
recovered as provided in this chapter.
Sec. 86.025. ENFORCEMENT. (a) Authorizes the executive
director, if a person has violated, is violating, or is
threatening to violate this chapter, to bring a suit to
restrain the person from continuing the violation, to recover
the penalty under Section 86.024, to recover the values of
material taken in violation of this chapter, or for any
appropriate combination of these remedies.
(b) Requires a court, on application for injunctive relief
and a finding that a person is violating or threatening to
violate a provision of this chapter, to grant the injunctive
relief the facts may warrant, without requirement for bond.
(c) Requires the attorney general or county attorney to
bring suit for injunctive relief, to recover a civil
penalty, to recover the value of material taken in violation
of this chapter, or for any appropriate combination of these
remedies. Requires amounts recovered under this section to
be credited to the game, fish, and water safety fund.
Authorizes certain other fees to be recovered, and requires
such fees to be deposited in the same operating funds from
which expenditures occurred.
Sec. 86.026. MORE THAN ONE DEFENDANT. Makes each defendant
against whom judgment is rendered, if more than one defendant
is named in an action under this chapter, jointly and
severally liable for recovery provided by this chapter.
Sec. 86.027. CIVIL SUIT AND CRIMINAL PROSECUTION PERMISSIBLE.
Provides that the pendency or determination of a civil action
brought under this chapter or a criminal prosecution for the
same violation does not bar the other action.
SECTION 6. Effective date: September 1, 1995.
SECTION 7. Emergency clause.