BILL ANALYSIS
C.S.H.B. 3226
By: Berlanga, Holzheauser, et al.
04-28-95
Committee Report (Substituted)
BACKGROUND
In 1989, the 70th Legislature enacted S.B. 1571 directing the Texas
General Land Office (GLO) to develop a coastal management plan
(CMP) in conjunction with other state agencies. In 1990, a
citizens advisory committee was formed which conducted public
hearings and workshops and identified priority issues including
shoreline erosion, public beach access planning, loss of sand dunes
and wetlands, and interagency coordination. The committee's
recommendations formed the basis of new legislation, S.B. 1053 and
S.B. 1054, passed by the 71st Legislature. S.B. 1053 in particular
created the Coastal Coordination Council (CCC), naming the Texas
Land Commissioner as its chair and giving the CCC broad authority
to resolve conflicts between state agencies and again directed the
GLO to develop a CMP in conjunction with other state agencies.
After a negotiated rulemaking process involving stakeholder groups
and state agencies, the CCC adopted rules, on September 16, 1994,
establishing the CMP, as well as setting out the coastal natural
resource areas and the actions covered by the CCC review process.
Some persons have raised concerns that the "review" authority
granted the CCC may give rise to a "new layer of bureaucracy" and
lead to increased costs and time delays in state and federal
permitting actions, in spite of the policy goal of the CCC to
"provide for more effective and efficient management of coastal
natural resource areas". On the other hand, other persons are
concerned that the CCC retain certain of its review powers, in
order to ensure federal approval by the National Oceanic and
Atmospheric Administration of Texas' coastal management plan.
PURPOSE
The purpose of H.B. 3226 is to address concerns regarding the CCC's
broad authority, specifically in its "review" powers. H.B. 3226
sets prescribed limits on the broad authority previously granted to
the CCC to review agency and subdivision actions by codifying the
CCC rules insofar as those rules establish the basic elements of
the CCC's review powers. There are several intended results of the
codification:
(1) the CCC will review only those actions with major
potential impacts on the coast;
(2) the CCC review process will not be duplicative of agency
and subdivision actions; and
(3) there is no mandatory Council review of an action.
RULEMAKING AUTHORITY
It is the opinion of the committee that SECTION 4 of this bill
would grant the Coastal Coordination Council the authority to adopt
rules to implement the following procedures: (1) for determining
the consistency of agency or subdivision actions, federal agency
actions or activities, and outer continental shelf plans with the
coastal program; (2) for an applicant to seek a preliminary
consistency review; (3) for an individual or small business to
obtain assistance with filing applications for permits or other
proposed actions; and (4) for an agency to submit rules and rule
amendments to the council for consistency review, for council
review of agency thresholds, and for council revocation of such
consistency determinations.
SECTION BY SECTION ANALYSIS
SECTION 1 Amends Section 33.004, Natural Resources Code, by
amending subdivision (8), deleting the reference to
public land and the contents of the management program
in the definition of "Management program", and by adding
new subdivisions (13) and (14), which define "Council"
and "Coastal zone", respectively.
SECTION 2 Amends Sections 33.051, 33.052, 33.053, and 33.055,
Natural Resources Code as follows:
Section 33.051 is changed to include the council in the
performance of duties assigned by this subchapter.
Section 33.052 is amended by changing the references to
the "management program" to "coastal management
program", as well as references to other sections of
this code, and by mandating that the program is not
effective until approved by the council. References to
"coastal conservation" are changed to "coastal natural
resource", and references to specific agencies are
changed to "agencies represented on the council." The
council, instead of the land office, may appoint an
advisory committee, whose members serve at the pleasure
of the council. "Coastal natural resource areas" as
defined in Section 33.203 of this code is substituted
for the definition of "coastal conservation areas".
Section 33.053 changes "management program" to "coastal
management program" and mandates that the program
include the elements required by the Coastal Zone
Management Act of 1972 and that the program identify the
boundaries of the coastal zone, as referenced in
sections 33.2053(k) and 33.203(7) of this code.
Section 33.055 is amended by changing "management
program" to "coastal management program" and requires
inclusion of the council when a public hearing is held
to develop, review, or amend the program. Subsection
(b) is deleted.
SECTION 3 Subsection 33.202(a)(1) is amended to clarify that it
is a state policy goal to coordinate government actions
affecting coastal natural resource areas. Also, the
section is amended to correct a typographical error.
SECTION 4 Amends Subchapter F, Chapter 33, Natural Resources Code
by amending Sections 33.203, 33.204, 33.205, 33.206,
33.207, and 33.208 and adding new Sections 33.2051,
33.2052, 33.2053, 33.209, and 33.210, as follows:
Section 33.203 is amended by substituting a specific
definition of "Coastal natural resource areas" for the
current definition that uses areas designated by the
coastal management program, and by adding definitions
for the following:
"Coastal barrier"
"Coastal historic area"
"Coastal preserve"
"Coastal shore area"
"Coastal waters"
"Coastal wetlands"
"Critical area"
"Critical dune area"
"Critical erosion area"
"Gulf beach"
"Hard substrate reef"
"Oyster reef"
"Special hazard area"
"Submerged land"
"Submerged aquatic vegetation"
"Tidal sand or mud flat"
"Water of the open Gulf of Mexico"
"Water under tidal influence"
"Agency or subdivision"
"Agency or subdivision action"
"Federal agency activity"
"Proposed action" and
"Outer continental shelf plan."
In addition, the definition of "Council" is amended by
deleting reference to the Attorney General and adding
the Chair of the Texas Transportation Commission, a
member of the State Soil and Conservation Board, a
member of the Texas Water Development Board, and a
coastal area business owner who resides in the coastal
area, and a representative of agriculture appointed by
the governor, with the advice and consent of the senate,
and by changing the reference to the Texas Water
Commission to the Texas Natural Resource Conservation
Commission. Finally, coastal management "plan" is
changed to coastal management "program", and that
definition is amended.
Section 33.204 is amended by changing the title of the
section to read "Administration of Coastal Management
Program". The amendment requires the council to adopt
goals and policies of the coastal management program by
rule. In addition, it adds a provision stating that the
goals and policies of the CMP may not require an agency
or subdivision to perform an action which would exceed
the constitutional or statutory authority of the agency
or subdivision. Subsection (b) adds a requirement that
an affirmative vote of two-thirds of the of the members
of the council is required for council action, except
for adoption of the coastal management program and
placement of an item on the agenda. Subsection (c) is
amended to allow the governor to designate a local
elected official from a municipality directly affected
by a matter under review to serve as a non-voting member
of the council on that action only. Subsection (e)
mandates the land office to prepare annual reports on
the effectiveness of the coastal management program.
The reports are subject to council approval and
subsequent delivery to the legislature on or before
January 15 of each odd-numbered year.
Section 33.205 is amended by deleting the requirement
that all agency or subdivision actions comply with the
coastal management plan and substitutes the requirement
that those agencies or subdivisions take the plan into
account before taking action or authorizing any action
and issue a written determination that the agency's or
subdivision's proposed action is consistent. Subsection
(c) provides that the council may not review actions or
proposed actions for consistency unless a council member
or certain other person files a request for referral and
any three members of the council agree that there is a
significant unresolved dispute regarding the proposed
action's or subdivision's consistency with the goals and
policies of the program. Subsection (d) provides that
if consistency review thresholds are in effect, actions
not exceeding the thresholds may be reviewed if the
action may directly and adversely certain defined areas.
Subsection (e) provides that the council must act on an
agency or subdivision action within 25 days of the date
the agency or subdivision proposed the action.
Subsection (f) requires the council to establish by rule
a process by which an applicant can seek a preliminary
consistency review from the council, for a proposed
action. Subsection (g) requires the council to
establish by rule a process by which an individual or
small business may obtain assistance with filing
applications for permits or other proposed actions.
Subsection (h) provides that a proposed action that was
the subject of a preliminary consistency finding may not
be reviewed by the council unless the permit or proposed
action has substantially changed since the preliminary
finding was issued.
Section 33.2051 lists the agency rules that are required
to comply with the goals and policies of the CMP, as
provided in CCC rules. The list includes:
(1) GLO oil spill prevention and response rules;
(2) Texas Natural Resource Conservation Commission
air quality, on-site sewage disposal system, and
underground storage rules; and
(3) Texas State Soil and Water Conservation Board
agricultural and silvicultural nonpoint source
pollution rules.
Section 33.2052 requires the council by rule to
establish a process by which an agency may submit rules
and rule amendments to the council for consistency
review and by which an agency may submit council
consistency review thresholds. After council approval
on the consistency of the agency's rules and thresholds,
an agency's consistency determination under section
33.205(b) is final and not subject to referral for
review by the council, with certain exceptions. In
addition, the council may revoke the certification of
an agency's rules or thresholds under certain
circumstances.
The title of Section 33.2053 is changed to read
"Individual Agency or Subdivision Actions". The section
lists the actions that are required to comply with the
goals and policies of the coastal management program,
as follows:
(a) General Land Office
Mineral lease plan of operations
Geophysical/geochemical permits
Coastal easements
Miscellaneous easements
Surface leases
Coastal leases
Structure registrations
Cabin permits
Navigation district leases
Certification of local government beach/dune
plans
Approval of wetlands mitigation banks
(b) Public Utility Commission
Certificate of convenience and necessity
(c) Railroad Commission
Wastewater discharge permit
Waste disposal pit permit
Certification of discharge of dredged or fill
material
(d) Texas Department of Transportation
Acquisition of dredged material disposal sites
Transportation project construction and
maintenance
(e) Texas Historical Commission/Texas Antiquities
Committee
Permit for disturbance of archaeological
landmarks
Review of federal undertakings affecting
historic sites
(f) Texas Natural Resource Conservation Commission
Wastewater discharge permit
Water rights permitting actions involving over
5,000 acre-feet or
water inside the program boundary or over
10,000 acre feet outside the program
boundary but within 200 stream miles of
the coast
Solid/hazardous waste disposal permits
Creation of special districts on coastal
barrier islands
Approval of special district levee/flood
control projects
Certification of discharge of dredged or fill
material
(h) Texas Parks and Wildlife Department
Oyster harvesting/transplanting permit
Endangered species permit
Marl/sand/shell/gravel mining permit
Approval of development in state parks and
preserves
(i) Local Governments
Dune protection permits and beachfront
construction certificates that either affect
over 7,000 square feet of dunes or dune
vegetation, disturb over 7,500 cubic yards of
dunes, authorize a coastal shore protection
project (e.g., seawall, bulkhead, etc.) that
lies within 200 feet of the line of vegetation
on a public beach or that is more than 500
feet long, or close a designated public beach
access way on other than a short term basis.
In addition, subsection (g) states that for the Trans-Texas Water Program Management Committee to deem a part
of the Trans-Texas Water Program consistent with the
coastal management program, then the Trans-Texas Water
Program Policy Management Committee must have at least
three council members who are also voting members of the
Committee, and those same members must make a
consistency finding by a majority vote. Subsection (j)
addresses certain actions not otherwise addressed.
Subsection (k) establishes the program boundary,
including a reference to section 33.203(7) of this code.
Section 33.206. Subsection (a) is amended to state that
a proposed action is consistent with the goals and
policies of the program unless on affirmative vote, at
least two-thirds of the council members determine the
action to be inconsistent. Subsection (b) requires the
council to report its findings on inconsistency,
including specific recommendations on how the proposed
action may be changed to make it consistent with the
program. The agency or subdivision shall notify the
council within 20 days of receiving the council's
report, as to whether the agency or subdivision will
amend its proposed action. Subsection (c) states that
if an agency or subdivision refuses to modify its action
to be consistent with the goals and policies of the
program, then the council shall ask the attorney general
to issue an opinion on the consistency of the proposed
action with the program. The agency or subdivision is
stayed from taking the proposed action until the
attorney general issues the opinion, which shall be
issued within 25 days of the council's request for the
opinion. Subsection (d) requires the council to adopt
procedural rules for the review of federal actions,
activities,a and outer continental shelf plans that
incorporate applicable federal regulations. The chair
or any three members may request additional information
or additional time from a federal agency. Subsection
(e) provides that any three members of the council may
refer a federal action, activity, or outer continental
shelf plan for council review on consistency grounds.
Subsection (f) states that for agency or subdivision
actions requiring an equivalent federal permit, the
council may only review the state agency or subdivision
action for actions under consistency thresholds. For
agency or subdivision actions above consistency
thresholds, the council may choose to review either the
state or the federal action, but not both. Subsection
(g) provides that the council may seek mediation with
federal agencies that do not change their actions which
have been deemed inconsistent by the council.
Subsection (h) provides that the council may not protest
a proposed action by an agency or subdivision pertaining
to an application filed with that agency or subdivision
prior to the date of the council's adoption of the
program.
Section 33.207 deletes language regarding judicial
review, and adds language allowing the council to
periodically submit recommendations to an agency or
subdivision relating to compliance with the program, and
requires the council to report to the legislature any
necessary statutory changes and agency or subdivision
actions that are not consistent with the CMP.
Section 33.208 states that the agency or subdivision
with jurisdiction over a proposed action shall enforce
the provisions of the program. Subsection (b) requires
the attorney general to file a suit in district court
in Travis County to enforce this subchapter if the
agency or subdivision fails to change an inconsistent
action to be consistent with the goals and policies of
the program. The court shall consider the attorney
general's opinion in determining whether the proposed
action is consistent with the coastal management
program. Subsection (c) provides that the council and
the agency or subdivision may enter into a settlement
agreement with regard to the proposed action and that
the council may rescind its request for an attorney
general opinion.
Section 33.209 requires that this subchapter may not be
applied so as to result in a taking, damage, or
destruction of property without adequate compensation.
Section 33.210 contains a sunset provision, with an
expiration date of September 1, 1999.
SECTION 5 Requires the governor to appoint, subject to senate
confirmation in the 75th Legislature, an owner of a
business located in a coastal area who resides in the
coastal area and a representative of agriculture to the
Coastal Coordinating Council for a term commencing
February 1, 1996. Also, a council member appointed
prior to the 74th Legislature shall serve the remainder
of that council member's term, regardless of senate
confirmation.
SECTION 6 Provides that the governor shall withdraw the state's
coastal management program if the US Dept. of Commerce
or the USEPA find that the state has failed to submit
an approvable nonpoint pollution control program,
pursuant to 16 U.S.C. Section 1455b.
SECTION 7 Emergency clause. Effective upon passage.
COMPARISON OF ORIGINAL TO SUBSTITUTE
In subsection (g) of Section 33.052 of the substitute, the
requirement for the land office to present reports to the
legislature is deleted, leaving in place a similar requirement
contained in Sec. 33.204(e) for the land office to prepare annual
reports on the effectiveness of the coastal management program.
Council approval of the reports is required. On or before January
15 of each odd-numbered year, the land office shall send the
previous two annual reports to the legislature.
The delineation of the coastal boundary in the substitute differs
from that in the original by clarifying that the coastal boundary
is the modified Oil Spill Prevention and Response Act line, and
includes a reference to the delineation of the boundary in Section
33.2053(k) and Section 33.203(7).
The substitute clarifies that one of the policy goals of the state
is to coordinate the performance of government programs affecting
coastal natural resource areas.
Section 4 of the substitute is changed to reflect the deletion of
Section 33.209 in the original bill, relating to voluntary special
area management plans, and the renumbering of the remaining
sections.
The definition of "serpulid worm reef" in the original is replaced
in the substitute by a definition for "hard substrate reef".
Section 33.203(20), the definition of "council" in the substitute,
clarifies that the respective chair of Parks and Wildlife
Commission, the Texas Natural Resource Conservation Commission, the
Texas Water Development Board, or the Texas Transportation may
designate another member of that board or commission to serve on
the council in place of the respective chair.
Throughout the substitute, as appropriate, references to "agency"
have been changed to "agency or subdivision" to reflect the fact
that certain local actions, primarily limited to dune protection
and beach access permits, may be subject to council consistency
review.
Section 33.203(23), the definition of "agency or subdivision
action" to reference those actions that may be subject to council
review, as delineated in Sections 33.2051 and 33.2053 of this code.
Section 33.204(24), the definition of "federal agency activity" has
been changed to include "financial assistance" as a federal agency
activity.
Section 33.204(25), the definition of "federal agency action" is
changed to reflect that the council reviews "proposed", not
"final", federal agency actions.
Section 33.205(e) is changed to reference that the council may
review actions referred under subsections (c) or (d) of Section
33.205.
Section 33.205(f)(2)(C) is changed to provide that the council may
wait to make its preliminary determination until it has enough
information available.
Section 33.205 in the substitute also differs from the original due
to the addition of subsection (h), which provides that a
preliminary finding of consistency is binding unless the permit or
proposed action has been substantially changed since the
preliminary finding was issued.
Section 33.205(b) is changed in the substitute to make reference to
the proper section of the code.
Section 33.2053(g)(2) is changed in the substitute to clarify that
a majority vote of those council members who are also members of
the Trans-Texas Water Management Policy Committee makes a finding
of consistency of the Trans-Texas Water Program with the goals and
policies of the coastal management program.
Section 33.206(b) of the substitute is changed to require that the
report the council makes to an agency proposing and inconsistent
action shall specify how the proposed action is inconsistent with
the goals and policies of the coastal management program. Further,
the substitute clarifies that an agency whose proposed action is
under council review shall notify the council of the agency's
decision on whether to modify or amend the proposed action to make
it consistent with the goals and policies of the program. The
original required the agency to notify the council of the agency's
refusal to change its action.
As stated earlier, the substitute differs from the original in that
Sec. 33.209 of the original, relating to voluntary special area
management plans, has been deleted from the substitute.
SUMMARY OF COMMITTEE ACTION
H.B. 3226 was considered by the committee in a formal meeting on
April 27, 1995.
The committee considered a complete substitute for the bill. The
substitute 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
7 ayes, 0 nays, 0 pnv, 2 absent.