74(R) HB 3226 Senate Committee Report

BILL ANALYSIS

H.B. 3226
By: Berlanga (Patterson)
Natural Resources
05-17-95
Senate Committee Report (Unamended)
BACKGROUND

In 1989, the 70th Legislature enacted S.B. 1571, directing the
Texas General Land Office to develop a coastal management plan in
conjunction with other state agencies. In 1990, a citizens
advisory committee was formed which conducted public hearings and
workshops and identified priority issues. 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 created the
Coastal Coordination Council to resolve conflicts between state
agencies.

PURPOSE

As proposed, H.B. 3226 limits the authority granted to the Coastal
Coordination Council to review agency and subdivision actions.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the Coastal Coordination Council under SECTION 4 (Sections
33.204(a), 33.205(f) and (g), 33.2052(a) and (c), and 33.206(d),
Natural Resources Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 33.004, Natural Resources Code, by
amending Subdivision (8), and adding Subdivision (13), to define
"council" and "coastal zone," and to redefine "management program."

SECTION 2. Amends Sections 33.051-33.053, and 33.055, Natural
Resources Code, as follows:

Sec. 33.051. GENERAL DUTY. Requires the Coastal Coordination
Council (council), among others, to perform the duties of this
subchapter.

Sec. 33.052. New heading: DEVELOPMENT OF COASTAL MANAGEMENT
PROGRAM. (a) Requires the commissioner of the General Land
Office (commissioner) to develop a continuing comprehensive
coastal management program (program) pursuant to the policies
stated in Section 33.202 of this code. Provides that the
program is not effective until approved by a majority of the
council under Section 33.204 of this code.

(b) Requires the General Land Office (land office), in
developing the program, to act as the lead agency to
coordinate and develop a long-term plan for the management
of uses affecting coastal natural resource, rather than
conservation, areas, in cooperating with certain state
agencies, including those agencies represented on the
council.

(c) Authorizes the council, rather than the land office, to
appoint and establish procedures for an advisory committee
to advise the council and the land office on coastal
management issues. Makes a conforming change.

(d) Defines "coastal natural resource areas." Deletes a
definition of "coastal conservation areas."

(e) Redesignates existing Subsection (f) to make a
conforming change. Deletes existing Subsection (e) granting
rulemaking authority to the land office, and existing
Subsection (g) requiring the land office to present a report
to the legislature.

Sec. 33.053. New heading: ELEMENTS OF COASTAL MANAGEMENT
PROGRAM. (a) Requires the program, in compliance with the
Coastal Zone Management Act of 1972 (16 U.S.C. Section 1451 et
seq.) to include certain elements.

(b) Defines "agency or subdivision action."

Sec. 33.055. New heading: PUBLIC HEARINGS TO CONSIDER COASTAL
MANAGEMENT PROGRAM. Requires the commissioner and council, in
developing, reviewing, or amending the program, to hold or
have held public hearings as appropriate. Makes a conforming
change. Deletes existing Subsection (b) regarding public
hearings.

SECTION 3. Amends Section 33.202(a), Natural Resources Code, to
declare that it is the policy of this state to better serve the
people of Texas by, among other measures, coordinating the
performance of government programs affecting coastal natural
resource areas, and coordinating the measures required to resolve
identified coastal problems.

SECTION 4. Amends Chapter 33F, Natural Resources Code, by amending
Sections 33.203-33.208, and adding Sections 33.2051-33.2053 and
33.209-33.211, as follows:

Sec. 33.203. DEFINITIONS. Defines "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 action," "federal
agency activity," "federal agency action," "proposed action,"
and "outer continental shelf plan." Redefines "coastal
natural resource areas," "council," "agency or subdivision,"
and "coastal management program."

Sec. 33.204. New heading: ADMINISTRATION OR COASTAL
MANAGEMENT PROGRAM. (a) Requires the council, by rule, to
adopt goals and policies of the program. Prohibits a goal or
policy from requiring an agency or subdivision from performing
an action that would exceed the constitutional or statutory
authority of the agency or subdivision to which the goal or
policy applies.

(b) Authorizes the chair of the council or any three council
members to convene special meetings.

(c) Authorizes the council to act on the agreement of a
majority of the quorum of the council, except as provided by
Sections 33.205(c)(3) and 32.206(a).

(d) Requires the governor, for each matter to be reviewed
under Section 33.205(c) or (d), to designate a local elected
official from a county or municipality directly affected by
the matter under review.

(e) Redesignates existing Subsection (c). Requires the
council, in conducting reviews under Section 33.205 of this
code, to receive and consider the testimony of any person
regarding the program as the testimony relates to the agency
or subdivision action or federal agency action or activity
or outer continental shelf plan under review.

(f) Redesignates existing Subsection (d). Prohibits the
council members from receiving compensation for services.
Requires the land office to prepare an annual report on the
effectiveness of the program, and to submit the report to
the council for approval. Requires the council, on or
before January 15 of each odd-numbered year, to send to the
legislature each of the previous two annual reports.

Sec. 33.205. New heading: CONSISTENCY WITH COASTAL MANAGEMENT
PROGRAM; COUNCIL REVIEW. (a) Requires an agency or
subdivision that takes an agency or subdivision action under
Section 33.2051 or 33.2053 that may adversely affect a coastal
natural resource area to comply with the goals and policies of
the program.

(b) Requires an agency or subdivision subject to the
requirements of Subsection (a) to affirm that it has taken
into account the goals and policies of the program by
issuing a written determination that a proposed action
described by Section 33.2051 or 33.2053 is consistent with
the program goals and policies.

(c) Prohibits the council from reviewing a proposed action
subject to the requirements of Subsections (a) and (b) of
this section for consistency with the goals and policies of
the program, except under certain circumstances.

(d) Prohibits the council, if consistency review thresholds
are in effect under Section 33.2052, from reviewing a
proposed action subject to the requirements of Subsections
(a) and (b) for consistency with the goals and policies of
the program, unless the requirements of Subsection (c) are
satisfied and certain other conditions related to the
availability of a formal hearing under Chapter 2001,
Government Code.

(e) Requires the council to consider and act on a matter
referred under Subsection (c) or (d) before the 26th day
after the date the agency or subdivision proposed the
action. Provides that an action subject to the contested
case provisions of Chapter 2001, Government Code, is
proposed when notice of a decision or order is issued under
Section 2001.142, Government Code.

(f) Requires the council, by rule, to establish a process by
which an applicant for a permit or other proposed action
described in Section 33.2053, or an agency or subdivision
proposing an action, may request and receive a preliminary
consistent review. Sets forth requirements for the rules.

(g) Requires the council, by rule, to establish a process by
which an individual or small business may request and
receive assistance with filing applications for permits or
other proposed actions described by Section 33.2053. Sets
forth requirements for the rules.

(h) Authorizes the council, if an agency, subdivision, or
applicant has received a preliminary finding of consistency
under Subsection (f)(2)(C) or (g)(2)(F) and a request for
referral was filed on that action under Subsection (c)(2),
to accept the request for referral only if the agency or
subdivision has substantially changed the permit or proposed
action since the preliminary finding was issued.

Sec. 33.2051. AGENCY RULEMAKING ACTIONS. (a) Requires the
land office to comply with Sections 33.205(a) and (b) when
adopting or amending a rule governing the prevention of,
response to, or remediation of a costal oil spill.

(b) Requires the Texas Natural Resource Conservation
Commission to comply with Sections 33.205(a) and (b) when
adopting or amending a rule governing air pollutant
emissions, on-site sewage disposal systems, or underground
storage tanks.

(c) Requires the State Soil and Water Conservation Board to
comply with Sections 33.205(a) and (b) when adopting or
amending a rule governing agricultural or silvicultural
nonpoint source pollution.

(d) Requires an agency to comply with Sections 33.205(a) and
(b) when adopting or amending a rule governing an individual
action described by Section 33.2053.

(e) Prohibits the council from reviewing a proposed rule of
the Texas Department of Agriculture.

Sec. 33.2052. CERTIFICATION OF AGENCY RULES; AGENCY ACTIONS
CONSIDERED CONSISTENT. (a) Requires the council, by rule, to
establish a process by which an agency may submit rules and
rule amendments described by Section 33.2051 to the council
for review and certification for consistency with the goals
and policies of the program.

(b) Requires the process to provide that an agency may
submit to the council consistency review thresholds for the
agency's actions under Section 33.2503. Provides that,
after the council certifies that an agency's rules are
consistent and approved the agency's thresholds, the agency
consistency determination under Section 33.205(b) for an
action is final and is not subject to referral and review,
except as provided by Section 33.205(d).

(c) Requires the council, by rule, to provide that the
council may revoke its certification under Subsection (b) if
the council finds that an agency has taken certain action
inconsistent with program goals and policies.

Sec. 33.2053. INDIVIDUAL AGENCY OR SUBDIVISION ACTIONS. (a)-(i) Requires the land office, the School Land Board, or a
board for lease of state-owned lands, the Public Utility
Commission of Texas, the Railroad Commission of Texas, the
Texas Transportation Commission, the Texas Historical
Commission and the Antiquities Committee, the Texas Natural
Resource Conservation Commission, the Parks and Wildlife
Department, and a subdivision to comply with Sections
33.205(a) and (b) when issuing or approving certain items.
Prohibits the council from reviewing certain actions of the
Texas Natural Resource Conservation Commission.

(j) Sets forth the conditions under which an action to
renew, amend, or modify an existing permit, certificate,
lease, easement, approval, or other action is not an action
under this section.

(k) Requires the council to establish a program boundary to
limit the geographic area in which the requirements of
Sections 33.205(a) and (b) apply. Provides that this
subchapter does not apply to an agency action authorizing an
activity outside the program boundary, except as provided by
Subsections (f)(8)-(10).

Sec. 33.206. COUNCIL ACTION. (a) Provides that a proposed
action is consistent with the goals and policies of the
program and approved by the council, unless the council
determines the action to be inconsistent with the program and
protests the action.

(b) Requires the council, if it protests the proposed
action, to report its findings on the matter to the agency
or subdivision. Requires the report to specify how the
proposed action is inconsistent with the program, and to
include specific recommendations of the council regarding
how the proposed action may be modified or amended to make
it consistent with the program. Requires the agency or
subdivision, before the 21st day after the date the agency
or subdivision receives the report, to review the findings
and recommendations and determine whether to modify or amend
the proposed action, and to notify the council of its
decision.

(c) Requires the council, if an agency or subdivision does
not modify or amend a proposed action to be consistent with
the program, to request the attorney general to issue an
opinion on the consistency of the proposed action with the
program. Stays the agency or subdivision from taking the
proposed action until the attorney general issues the
opinion. Requires the attorney general to issue an opinion
before the 26th day after the date the council requests the
opinion.

(d) Requires the council to adopt procedural rules for the
review of federal actions, activities, and outer continental
shelf plans that incorporate the provisions of federal
regulations governing those reviews. Requires the rules to
provide that the chair and any three council members may
request additional information from a federal agency or
additional time for review as provided by the federal
regulations.

(e) Requires the council to review any federal action,
activity, or outer continental shelf plan that any three
members of the council agree presents a significant
unresolved issue regarding consistency with the goals and
policies of the program, and to place the matter on the
agenda of a meeting of the council for review.

(f) Sets forth requirements for the council regarding
certain actions described by Section 33.2052.

(g) Authorizes the governor, with the assistance of the
chair of the council, if the council finds a proposed
federal agency action or activity or outer continental shelf
plan is inconsistent with the program, and the federal
agency does not modify the action, activity, or plan to
achieve consistency with the program, to seek mediation of
the matter in accordance with federal law.

(h) Prohibits the council from protesting a proposed action
by an agency or subdivision pertaining to an application
filed with that agency or subdivision before the date the
program is adopted.

Sec. 33.207. COUNCIL RECOMMENDATIONS. Authorizes the council
to submit recommendations periodically to an agency or
subdivision designed to encourage the agency or subdivision to
carry out its functions in a manner consistent with the
program. Requires the council to report to the legislature on
recommended statutory changes needed to make more effective
and efficient use of public funds and provide for more
effective and efficient management of coastal natural resource
areas, and in agency or subdivision actions that are not
consistent with the program. Deletes existing Section 33.207
regarding judicial review.

Sec. 33.208. ENFORCEMENT. (a) Requires the agency or
subdivision with jurisdiction over a proposed action to
enforce the provisions of the program.

(b) Requires the attorney general to file suit in Travis
County to enforce this subchapter if the attorney general
issues an opinion under Section 33.206(c) that a proposed
agency or subdivision action is inconsistent with the
program and the agency or subdivision fails to implement the
council's recommendation regarding the action. Requires the
court to consider the attorney general's opinion in
determining whether the proposed action is consistent with
the program.

(c) Authorizes the council and the agency or subdivision to
enter into a settlement agreement with regard to the
proposed action. Authorizes the council to rescind its
request for an opinion from the attorney general if the
council and agency or subdivision enter into a settlement
agreement.

Sec. 33.209. PROHIBITION ON SPECIAL AREA MANAGEMENT PLANS.
Prohibits the council from developing or approving a special
area management plan.

Sec. 33.210. PRIVATE PROPERTY. Prohibits the requirements of
this subchapter from being applied in a manner that would
result in the taking, damage, or destruction of property
without adequate compensation.

Sec. 33.211. SUNSET PROVISION. Subjects the council to
Chapter 325, Government Code. Provides that, unless continued
in existence as provided by that chapter, the council is
abolished and this subchapter expires September 1, 1999.

SECTION 5. Requires the governor to make certain appointments to
the council as soon as possible on or after the effective date of
this Act.

SECTION 6. Provides that the legislature intends that the program
submitted to the governor under U.S.C. Section 1455 on or after the
effective date of this Act be as similar to the program submitted
before the effective date of this Act as is practicable.

SECTION 7. Requires the governor to withdraw certain programs
developed under Chapter 33, Natural Resources Code, if the
secretary of the U.S. Department of Commerce and the administrator
of the U.S. Environmental Protection Agency find that Texas has
failed to submit an approvable coastal nonpoint pollution control
program as required by 16 U.S.C. Section 1455b, which would result
in the withholding of money under 16 U.S.C. Section 1455b(c)(3) and
(4).

SECTION 8. Emergency clause.
Effective date: upon passage.