By Berlanga, Gray H.B. No. 1494
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to limiting the authority of the Coastal Coordination
1-3 Council to review the actions of agencies and subdivisions,
1-4 defining the scope of the coastal management program, and adding
1-5 representatives of the State Soil and Water Conservation Board and
1-6 the Texas Water Development Board to the Coastal Coordination
1-7 Council.
1-8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-9 SECTION 1. Subchapter F, Chapter 33, Natural Resources Code,
1-10 is amended to read as follows:
1-11 SUBCHAPTER F. COASTAL COORDINATION
1-12 Sec. 33.201. Short Title. This subchapter may be cited as
1-13 the Coastal Coordination Act.
1-14 Sec. 33.202. Policy. (a) It is declared to be the policy
1-15 of this state to make more effective and efficient use of public
1-16 funds and provide for more effective and efficient management of
1-17 coastal natural resource areas, and to better serve the people of
1-18 Texas by:
1-19 (1) continually reviewing the principal coastal
1-20 problems of state concern, coordinating the performance of
1-21 agencies, subdivisions, and programs affecting coastal natural
1-22 resource areas, and <the> coordinating the measures required to
1-23 resolve identified coastal problems; and
2-1 (2) making all coastal management processes more
2-2 visible, accessible, coherent, consistent, and accountable to the
2-3 people of Texas.
2-4 (b) It is declared to be the policy of this state that the
2-5 chief executive officer of the state should represent the State of
2-6 Texas in discussions and negotiations with the federal government
2-7 with regard to the effect of federal actions on the coastal
2-8 programs and policies of the State of Texas.
2-9 Sec. 33.203. Definitions. In this subchapter:
2-10 (1) "Coastal natural resource areas" means coastal
2-11 barriers, coastal historic areas, coastal parks, wildlife
2-12 management areas, preserves, coastal shore areas, coastal wetlands,
2-13 critical dune areas, critical erosion areas, Gulf beaches, hard
2-14 substrate reefs, oyster reefs, private submerged lands, special
2-15 hazard areas, state submerged lands, submerged aquatic vegetation,
2-16 tidal sand and mud flats, waters of the open Gulf of Mexico, and
2-17 waters under tidal influence <areas designated in the coastal
2-18 management plan as requiring special management, including coastal
2-19 public submerged lands, public beaches, washover areas on
2-20 peninsulas, mainland shorelines, and barrier islands, protected
2-21 sand dune complexes on the Gulf shoreline, and parks, historic
2-22 areas, wildlife refuges, preserves, and other such natural resource
2-23 management areas> located within the coastal area <and designated
2-24 in the coastal management plan>.
2-25 (2) "Critical areas" means coastal wetlands, oyster
3-1 reefs, hard substrate reefs, submerged aquatic vegetation, and
3-2 tidal sand and mud flats.
3-3 (3) "Council" means the Coastal Coordination Council,
3-4 which shall consist of the commissioner, the attorney general, the
3-5 chair of the Parks and Wildlife Commission, the chair of the Texas
3-6 Natural Resource Conservation <Water> Commission, the chair of the
3-7 Texas Water Development Board, a member of the State Soil and Water
3-8 Conservation Board, a member of the Railroad Commission of Texas,
3-9 and one city or county elected official and one resident from the
3-10 coastal area appointed by the governor for two-year terms.
3-11 (4) <(3)> "Agency or subdivision" means any agency,
3-12 department, board, commission, subdivision, body politic, or other
3-13 government entity or unit.
3-14 (5) <(4)> "Coastal management program <plan>" means an
3-15 ongoing, comprehensive program for coordinating agencies' and
3-16 subdivisions' management of activities that may adversely affect
3-17 coastal natural resource areas for the purpose of continually
3-18 improving management of those activities as provided in Section
3-19 33.202 <the plan as developed by the commissioner under Section
3-20 33.052> of this code.
3-21 Sec. 33.204. ADMINISTRATION OF COASTAL MANAGEMENT PROGRAM
3-22 <ADOPTION OF COASTAL GOALS AND POLICIES; REVIEW>. (a) The council
3-23 shall promulgate rules adopting the goals and policies of the
3-24 coastal management program. The goals and policies may not require
3-25 an agency or subdivision to perform an action which would exceed
4-1 the constitutional or statutory authority of the agency or
4-2 subdivision. The council shall study, regularly request public
4-3 comment on, and coordinate responses to <plan and make studies of>
4-4 problems and issues affecting the management of coastal natural
4-5 resource areas as provided in the program <plan>.
4-6 (b) The council shall meet once in each calendar quarter.
4-7 The commissioner is chair of the council and may convene special
4-8 meetings at other times. For each matter to be reviewed by the
4-9 council under Section 33.205 of this code, the governor shall
4-10 designate a local elected official from a county directly affected
4-11 by the matter under review. The local official shall serve as a
4-12 nonvoting participant on the council for purposes of reviewing and
4-13 acting on that matter only.
4-14 (c) In conducting reviews under Section 33.205 of this code,
4-15 the council shall receive and consider the oral or written
4-16 testimony of any person regarding the goals and policies of the
4-17 coastal management program <plan>. The council may reasonably limit
4-18 the length and format of the testimony and the time at which it
4-19 will be received. Notice of the period during which the testimony
4-20 will be received shall be published in the Texas Register and in a
4-21 newspaper of general circulation in each county directly affected
4-22 by the matter under review before the commencement of that period.
4-23 The council shall consider only the record before the agency or
4-24 subdivision involved in the matter under review, the agency's or
4-25 subdivision's findings, applicable laws and rules, any additional
5-1 information provided by that agency or subdivision, and public
5-2 testimony under this subsection, provided that if the agency or
5-3 subdivision did not hold a hearing, make a record, or make
5-4 findings, the council may hold a hearing and make findings
5-5 necessary to a complete and thorough review.
5-6 (d) The land office shall assist the council in carrying out
5-7 its duties. The council members shall not receive compensation for
5-8 services but may receive reimbursement for actual and necessary
5-9 expenses. The land office shall, in coordination with other
5-10 agencies and subdivisions, prepare an annual report reviewing the
5-11 effectiveness of the coastal management program. The land office
5-12 shall submit each report to the council for approval and shall
5-13 submit each of the previous two years' reports to the legislature
5-14 prior to the beginning of each legislative session.
5-15 Sec. 33.205. CONSISTENCY WITH GOALS AND POLICIES;
5-16 PREREQUISITES <STANDARDS; SUBMISSION> FOR REVIEW. (a) When
5-17 proposing or adopting any of the rules listed in Subsection (c) of
5-18 this section or taking any of the individual actions listed in
5-19 Subsection (d) of this section, <All actions taken or authorized
5-20 by> state agencies and subdivisions <that may adversely affect
5-21 coastal natural resource areas, including discharges and
5-22 withdrawals that may significantly affect water quality in state
5-23 waters subject to tidal influence,> must comply with the goals and
5-24 policies of the coastal management program <plan>.
5-25 (b) State <In developing rules and policies applicable in
6-1 coastal areas and performing actions subject to the requirements of
6-2 this subsection, state> agencies and subdivisions subject to the
6-3 requirements of Subsection (a) of this section shall take into
6-4 account the goals and policies of the coastal management program
6-5 and shall certify that the rule or action is consistent with those
6-6 goals and policies <plan>.
6-7 (c) Agencies must comply with Subsection (a) of this section
6-8 when proposing or adopting one of the following rules or amendments
6-9 to rules:
6-10 (1) a rule of the General Land Office governing the
6-11 prevention of, response to, and remediation of coastal oil spills;
6-12 (2) a rule of the Texas Natural Resource Conservation
6-13 Commission governing:
6-14 (A) emissions of air pollutants;
6-15 (B) on-site sewage disposal systems; and
6-16 (C) underground storage tanks;
6-17 (3) a rule of the State Soil and Water Conservation
6-18 Board governing agricultural and silvicultural nonpoint source
6-19 pollution;
6-20 (4) a rule governing individual actions listed in
6-21 Subsection (d) of this section.
6-22 (d) Agencies and subdivisions must comply with Subsection
6-23 (a) of this section when taking one of the following actions:
6-24 (1) an action of the General Land Office, the School
6-25 Land Board, or the boards for lease of state-owned lands
7-1 concerning:
7-2 (A) a mineral lease plan of operations;
7-3 (B) a geophysical and geochemical permit;
7-4 (C) a coastal easement;
7-5 (D) miscellaneous easements;
7-6 (E) a surface lease;
7-7 (F) a coastal lease;
7-8 (G) a structure registration;
7-9 (H) a cabin permit;
7-10 (I) a navigation district lease;
7-11 (J) certification of a local government beach
7-12 access and dune protection plan; or
7-13 (K) approval of a wetland mitigation bank;
7-14 (2) an action of the Public Utility Commission of
7-15 Texas concerning a certificate of convenience and necessity;
7-16 (3) an action of the Railroad Commission of Texas
7-17 concerning:
7-18 (A) a wastewater discharge permit;
7-19 (B) a waste disposal or storage pit permit; or
7-20 (C) certification of a federal permit for
7-21 dredging and filling activities;
7-22 (4) an action of the Texas Department of
7-23 Transportation concerning:
7-24 (A) acquisition of dredged material disposal
7-25 sites for the Gulf Intracoastal Waterway and for channel expansion,
8-1 relocation, or alteration; or
8-2 (B) transportation planning, construction, and
8-3 maintenance;
8-4 (5) an action of the Texas Historical Commission or
8-5 the Texas Antiquities Committee concerning:
8-6 (A) a permit for destruction, alteration, or
8-7 taking of state archaeological landmarks; or
8-8 (B) a review of federal undertakings affecting
8-9 historic sites;
8-10 (6) an action of the Texas Natural Resource
8-11 Conservation Commission concerning:
8-12 (A) a municipal and industrial wastewater
8-13 discharge permit;
8-14 (B) a wastewater discharge permit for a new
8-15 concentrated animal feeding operation within one mile of a critical
8-16 area or coastal waters;
8-17 (C) a water rights permit over 2,500 acre-feet
8-18 per year inside the coastal area or over 5,000 acre-feet per year
8-19 outside the coastal area;
8-20 (D) a solid and hazardous waste treatment,
8-21 storage, and disposal permit;
8-22 (E) creation of a special-purpose district or
8-23 approval of bonds for infrastructure on a coastal barrier;
8-24 (F) approval of levee improvements or another
8-25 flood control project;
9-1 (G) certification of a federal permit for
9-2 dredging and filling activities; or
9-3 (H) a declaration of emergency and request for
9-4 an emergency release of water;
9-5 (7) an action of the Parks and Wildlife Department
9-6 concerning:
9-7 (A) a permit or lease for transplanting or
9-8 harvesting oysters;
9-9 (B) a permit for taking, transporting, or
9-10 possessing threatened or endangered species;
9-11 (C) a permit for disturbing marl, sand, shell,
9-12 or gravel on state-owned lands; or
9-13 (D) approval of development in state parks,
9-14 wildlife management areas, and preserves; or
9-15 (8) an action of a subdivision concerning:
9-16 (A) a dune protection permit; or
9-17 (B) a beachfront construction certificate,
9-18 provided that the provisions of this subchapter shall apply to an
9-19 action listed in this subdivision only if they authorize:
9-20 (i) construction activity located within
9-21 the first 200 feet landward of the line of vegetation which results
9-22 in the disturbance of more than 7,000 square feet of dunes or dune
9-23 vegetation;
9-24 (ii) construction activity which results
9-25 in the disturbance of more than 7,500 cubic yards of dunes;
10-1 (iii) any coastal shore protection project
10-2 undertaken pursuant to Chapter 15, Title 31, Texas Administrative
10-3 Code, or within 200 feet landward of the line of vegetation
10-4 affecting more than 500 linear feet of beach on the shore of the
10-5 Gulf of Mexico; or
10-6 (iv) a closure, relocation, or reduction
10-7 in existing public beach access or public beach access designated
10-8 in an approved beach access plan, other than a short-term closure,
10-9 relocation, or reduction.
10-10 (e) An action to renew, amend, or modify an existing permit,
10-11 certificate, lease, easement, approval, or other form of
10-12 authorization shall not be considered an action subject to the
10-13 coastal management program if the action is taken pursuant to a
10-14 rule that the council has certified as consistent under Subsection
10-15 (h) of this section and:
10-16 (1) for wastewater discharge permits, if the action is
10-17 not a major permit modification that would increase pollutant loads
10-18 to coastal waters or would result in relocation of an outfall to a
10-19 critical area;
10-20 (2) for solid, hazardous, or nonhazardous waste
10-21 permits, if the action is not a Class III modification as defined
10-22 in Texas Natural Resource Conservation Commission rules; or
10-23 (3) for any other action, if the action only extends
10-24 the time period of the existing authorization without authorizing
10-25 new or additional work or activities or is not otherwise directly
11-1 relevant to the goals and policies of the coastal management
11-2 program.
11-3 (f) <(b)> The council shall review any action listed in
11-4 Subsection (d) of this section if:
11-5 (1) the agency or subdivision has taken the action;
11-6 (2) a person eligible to file a request for referral
11-7 under Subdivision (4) of this subsection raises issues regarding
11-8 the action's consistency with the goals and policies of the coastal
11-9 management program during the agency's or subdivision's
11-10 consideration of the action;
11-11 (3) consistency review thresholds for the agency are
11-12 in effect under Subsection (h) of this section and:
11-13 (A) the action is one for which a formal hearing
11-14 under Chapter 2001, Government Code (Administrative Procedure Act),
11-15 was available to contest the agency's determination of consistency
11-16 with the goals and policies of the coastal management program for:
11-17 (i) an action exceeding the applicable
11-18 thresholds, if the agency's consistency determination was contested
11-19 in a formal hearing or an alternative dispute resolution process;
11-20 or
11-21 (ii) an action not exceeding the
11-22 applicable thresholds, if the action may adversely affect a
11-23 critical area, critical dune area, coastal park, wildlife
11-24 management area, or preserve, or beach on the shore of the Gulf of
11-25 Mexico, and a state agency contested the agency's consistency
12-1 determination in a formal hearing; or
12-2 (B) the action is one for which a formal hearing
12-3 under Chapter 2001, Government Code (Administrative Procedure Act),
12-4 was not available to contest the agency's determination of
12-5 consistency with the goals and policies of the coastal management
12-6 program and the action exceeds the applicable thresholds;
12-7 (4) a request for referral is filed with the council
12-8 by a council member, a party to the agency's formal hearing or
12-9 alternative dispute resolution process, a person who participated
12-10 in an agency's formal hearing as allowed by agency rules in a
12-11 capacity other than as a witness, or, for an action for which a
12-12 formal hearing under Chapter 2001, Government Code (Administrative
12-13 Procedure Act), was not available, a person who filed written
12-14 comments with the agency before the action was taken; or
12-15 (5) <subject to the requirements of Subsection (a) of
12-16 this section that > the commissioner or <submits to the council for
12-17 review. The council shall review any action subject to the
12-18 requirements of Subsection (a) of this section that is submitted to
12-19 the council by> any three regular members of the council refer the
12-20 action to the council<.>
12-21 <(c) An action must be referred to the council> within 30
12-22 days of the date the agency or subdivision took the action <it
12-23 becomes final>.
12-24 (g) The council must consider and act on a referral <the
12-25 matter> within 70 days of the date the agency or subdivision took
13-1 the action <90 days of referral>.
13-2 (h) The council shall in its procedural rules establish a
13-3 process by which an agency may submit its rules governing actions
13-4 listed in Subsection (d) of this section to the council for review
13-5 and certification for consistency with the goals and policies of
13-6 the coastal management program. The process shall provide that an
13-7 agency may also submit to the council consistency review thresholds
13-8 for those actions. On the council's certification that the
13-9 agency's rules are consistent and its approval of the agency's
13-10 consistency review thresholds, the agency's actions below the
13-11 thresholds shall be presumed to be consistent with the goals and
13-12 policies of the coastal management program and shall not be subject
13-13 to council review, remand, or reversal, except for those actions
13-14 described in Subsection (f)(3)(B) of this section. The council
13-15 shall also include in its procedural rules a provision whereby the
13-16 council may revoke its certification of the consistency of an
13-17 agency's rules if the agency fails to implement, enforce, or adhere
13-18 to the goals and policies of the coastal management program. Prior
13-19 to the certification of rules and approval of thresholds and
13-20 subsequent to any revocation of such certification or approval, all
13-21 the agency's actions listed in Subsection (d) of this section shall
13-22 be subject to council referral, review, remand, and reversal.
13-23 Sec. 33.206. COUNCIL ACTION. (a) After reviewing an action
13-24 of a state agency or subdivision, the council may affirm or protest
13-25 the action of the state agency or subdivision.
14-1 (b) If the council protests the action, the council shall
14-2 remand the matter to the state agency or subdivision. The remand
14-3 shall include findings on inconsistencies with the goals and
14-4 policies of the coastal management program <plan> and may include
14-5 recommendations of the council. On remand, the state agency or
14-6 subdivision shall modify or amend the action to make it consistent
14-7 with the goals and policies of the coastal management program
14-8 <plan>. Should the agency or subdivision decide not to amend its
14-9 action as recommended by the council, it shall notify the council
14-10 of that decision. The council may provide in its remand that the
14-11 agency or subdivision action will be automatically reversed without
14-12 further council action if the agency or subdivision does not
14-13 reconsider its action in light of the council's recommendations
14-14 within 90 days after taking the action.
14-15 (c) The state agency's or subdivision's action on remand is
14-16 subject to review by the council as provided in Section 33.205 of
14-17 this code. The only basis on which the council may reverse a
14-18 decision of an agency or subdivision is that the action is
14-19 inconsistent with the goals and policies of the coastal management
14-20 program <plan>. The council's decision to reverse an action
14-21 renders the action void.
14-22 (d) Pending council review of an individual action, no
14-23 person may conduct activities authorized by the action that would
14-24 irreparably alter or damage coastal natural resource areas
14-25 identified in the goals and policies of the coastal management
15-1 program that are applicable to that action, except as allowed by
15-2 Section 2001.054, Government Code.
15-3 (e) The council shall not apply the goals and policies of
15-4 the coastal management program in a manner which would result in
15-5 the taking, damage, or destruction of property, without adequate
15-6 compensation, by the council.
15-7 (f) The council shall review any federal action the
15-8 commissioner submits to the council for review. If, after review,
15-9 the council finds a federal action does not comply with goals and
15-10 policies of the coastal management program <plan>, the council may
15-11 refer the matter to any federal official authorized to review or
15-12 act on the matter and may pursue resolution of the matter with the
15-13 federal official.
15-14 Sec. 33.207. JUDICIAL REVIEW. A person aggrieved by a final
15-15 action of the council may appeal to a district court under Chapter
15-16 2001, Government Code (<the> Administrative Procedure <and Texas
15-17 Register> Act <(Article 6252-13a, Vernon's Texas Civil Statutes>).
15-18 Sec. 33.208. ENFORCEMENT. The attorney general, at the
15-19 request of the council, shall file in a district court of Travis
15-20 County or in the county in which the violation occurs a suit to
15-21 enforce this subchapter or the rules adopted under this subchapter
15-22 against an agency or subdivision to prevent or remedy a violation
15-23 or failure to comply with this subchapter or those rules.
15-24 Sec. 33.209. VOLUNTARY SPECIAL AREA MANAGEMENT PLANS.
15-25 (a) The council may adopt rules containing goals and policies
16-1 applicable only to a special area of the coast. The rules shall
16-2 constitute the goals and policies of the coastal management program
16-3 for that special area in place of the generally applicable goals
16-4 and policies. The boundaries of any such area shall be included in
16-5 the rules.
16-6 (b) Rules applicable to a special area under this section
16-7 shall not apply to any real property whose owner does not expressly
16-8 and affirmatively consent in writing to the application of those
16-9 rules to the owner's real property.
16-10 SECTION 2. Sections 33.052, 33.053, 33.054, and 33.055,
16-11 Natural Resources Code, are repealed.
16-12 SECTION 3. The importance of this legislation and the
16-13 crowded condition of the calendars in both houses create an
16-14 emergency and an imperative public necessity that the
16-15 constitutional rule requiring bills to be read on three several
16-16 days in each house be suspended, and this rule is hereby suspended,
16-17 and that this Act take effect and be in force from and after its
16-18 passage, and it is so enacted.