74R11261 E
By Bosse H.B. No. 1823
Substitute the following for H.B. No. 1823:
By Kuempel C.S.H.B. No. 1823
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to regulation by the Parks and Wildlife Department of the
1-3 taking of marl, sand, gravel, shell, or mudshell; providing
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 86.004, Parks and Wildlife Code, is
1-7 amended to read as follows:
1-8 Sec. 86.004. Granting of Permit. The commission may grant a
1-9 permit to an applicant who has complied with all requirements of
1-10 the commission if the commission finds that the disturbing, taking,
1-11 and carrying away of marl, sand, gravel, shell, or mudshell will
1-12 not:
1-13 (1) damage or injuriously affect any island, reef,
1-14 bar, channel, river, creek, or bayou used for navigation, or any
1-15 oysters, oyster beds, <or> fish, or wildlife in or near the water
1-16 used in the operation; <and>
1-17 (2) change or injuriously affect any current that
1-18 would affect navigation;
1-19 (3) significantly and injuriously change the hydrology
1-20 of the river;
1-21 (4) significantly increase downstream nonpoint source
1-22 pollution; and
1-23 (5) significantly accelerate erosion upstream or
1-24 downstream from the place where the taking occurs.
2-1 SECTION 2. Section 86.007, Parks and Wildlife Code, is
2-2 amended to read as follows:
2-3 Sec. 86.007. PERMIT BY RULE <PERMITS NOT ASSIGNABLE>. (a)
2-4 The commission by rule may establish conditions under which
2-5 specified activities are authorized without the requirement of
2-6 individual permits under this chapter. An activity conducted in
2-7 accordance with those conditions is considered to be under a
2-8 permit.
2-9 (b) Rules adopted under this section shall require a person
2-10 proposing to rely on the authorization provided for by this section
2-11 to notify the department and, as appropriate, to report to the
2-12 department during and after the activity. The rules may provide
2-13 for a waiver of the requirement for advance notification in an
2-14 emergency. The commission may require a nonrefundable processing
2-15 fee to be submitted with the notification.
2-16 (c) The department, under rules adopted under this section,
2-17 may require an individual permit for any proposed activity.
2-18 (d) In addition to the requirements under Subchapter B,
2-19 Chapter 2001, Government Code, the rules shall require public
2-20 notification of the proposed activity to provide the public with an
2-21 opportunity to comment on the appropriateness of requiring an
2-22 individual permit.
2-23 (e) The rules must establish best management practices that
2-24 must be followed to minimize potential adverse effects on resources
2-25 under the commission's jurisdiction. <A permit issued under this
2-26 chapter is not assignable.>
2-27 SECTION 3. Section 86.011, Parks and Wildlife Code, is
3-1 amended to read as follows:
3-2 Sec. 86.011. DELEGATION OF AUTHORITY <NO SPECIAL
3-3 PRIVILEGES>. (a) The commission may delegate to the director
3-4 authority to grant uncontested permits under this section if:
3-5 (1) the application meets all statutory and
3-6 administrative criteria;
3-7 (2) no new issues affecting commission policy are
3-8 presented;
3-9 (3) no objection is raised by department staff; and
3-10 (4) no timely written requests for hearing are filed
3-11 or all requests for hearing have been withdrawn.
3-12 (b) On request by the applicant or a concerned person with a
3-13 justiciable interest, the commission shall review an application.
3-14 <No special privileges or exclusive rights may be granted to any
3-15 person to take marl, sand, gravel, shell, or mudshell or to operate
3-16 in or on any place under this chapter.>
3-17 SECTION 4. Section 86.020, Parks and Wildlife Code, is
3-18 amended to read as follows:
3-19 Sec. 86.020. RULES <PENALTY>. The commission may adopt
3-20 rules to govern:
3-21 (1) consideration of applications;
3-22 (2) setting and collection of application fees;
3-23 (3) assessment of transcript costs in contested cases;
3-24 (4) permit conditions;
3-25 (5) issuance of permits by rule;
3-26 (6) pricing of and terms for payment for substrate
3-27 materials;
4-1 (7) assignability of permits;
4-2 (8) payment of refunds;
4-3 (9) permit renewal; and
4-4 (10) any other matter necessary for the administration
4-5 of this chapter. <A person who violates Section 86.002 or 86.018
4-6 of this code commits an offense that is a Class C Parks and
4-7 Wildlife Code misdemeanor.>
4-8 SECTION 5. Chapter 86, Parks and Wildlife Code, is amended
4-9 by adding Sections 86.021-86.027 to read as follows:
4-10 Sec. 86.021. EXEMPTIONS. (a) The commission by rule shall
4-11 exempt the projects listed in Subsection (b) from any permit
4-12 requirement or payment to the department for materials removed if
4-13 the commission finds that the state will not be deprived of
4-14 significant revenue and there will be no significant adverse
4-15 effects on navigation, the coastal sediment budget, riverine
4-16 hydrology, erosion, or fish and wildlife resources or their
4-17 habitat.
4-18 (b) Projects that may be exempted under Subsection (a)
4-19 include:
4-20 (1) projects resulting in insignificant takings or
4-21 disturbances of marl, sand, gravel, shell, or mudshell;
4-22 (2) projects to restore or maintain the storage
4-23 capacity of existing public water supplies;
4-24 (3) maintenance projects carried out by public
4-25 utilities for noncommercial purposes; and
4-26 (4) public road projects contracted by the Texas
4-27 Department of Transportation.
5-1 (c) The commission may require the performance of scientific
5-2 studies as needed to determine the cumulative effect of permitted
5-3 operations in a watershed on natural resources using the criteria
5-4 described by Section 86.004 and may provide for permit holders to
5-5 participate in the performance of those studies. The commission
5-6 may reimburse a participating permit holder for costs incurred by
5-7 the permit holder in performing the study in an amount equal to not
5-8 more than one-fourth of all royalty fees paid by the permit holder
5-9 to the commission. Total reimbursements to all participating
5-10 permit holders may not exceed one-half the total cost of the study.
5-11 Sec. 86.022. PENALTY. A person who violates Section 86.002
5-12 or 86.018 commits an offense that is a Class C Parks and Wildlife
5-13 Code misdemeanor.
5-14 Sec. 86.023. LIABILITY FOR VALUE OF MATERIAL TAKEN. A
5-15 person who takes marl, sand, gravel, shell, or mudshell under the
5-16 jurisdiction of the commission in violation of this chapter or a
5-17 rule adopted under this chapter is liable to the state for the
5-18 value of:
5-19 (1) the material taken; and
5-20 (2) any other natural resource under the department's
5-21 jurisdiction that is damaged or diminished in value.
5-22 Sec. 86.024. CIVIL PENALTY. A person who violates this
5-23 chapter or a rule, permit, or order of the department issued or
5-24 adopted under this chapter is subject to a civil penalty of not
5-25 less than $100 or more than $10,000 for each act of violation and
5-26 for each day of violation, to be recovered as provided in this
5-27 chapter.
6-1 Sec. 86.025. ENFORCEMENT. (a) If a person has violated, is
6-2 violating, or is threatening to violate this chapter or a rule,
6-3 permit, or order of the department issued, adopted, or entered into
6-4 under this chapter, the director may bring suit to restrain the
6-5 person from continuing the violation or threat of violation, to
6-6 recover the civil penalty under Section 86.024, to recover the
6-7 value of material taken in violation of this chapter, or for any
6-8 appropriate combination of these remedies.
6-9 (b) On application for injunctive relief and a finding that
6-10 a person is violating or threatening to violate a provision of this
6-11 chapter or a rule, permit, or order of the department under this
6-12 chapter, a court shall grant the injunctive relief the facts may
6-13 warrant, without requirement for bond.
6-14 (c) At the request of the director, the attorney general or
6-15 the county attorney of the county in which the violation or threat
6-16 of violation occurred shall bring suit for injunctive relief, to
6-17 recover a civil penalty, to recover the value of material taken in
6-18 violation of this chapter, or for any appropriate combination of
6-19 these remedies. Amounts recovered under this section shall be
6-20 credited to the game, fish, and water safety fund. The actual cost
6-21 of investigation, reasonable attorney's fees, and reasonable expert
6-22 witness fees also may be recovered, and those recovered amounts
6-23 shall be credited to the same operating funds from which
6-24 expenditures occurred.
6-25 Sec. 86.026. MORE THAN ONE DEFENDANT. If more than one
6-26 defendant is named in an action under this chapter, each defendant
6-27 against whom judgment is rendered is jointly and severally liable
7-1 for recovery provided by this chapter.
7-2 Sec. 86.027. CIVIL SUIT AND CRIMINAL PROSECUTION
7-3 PERMISSIBLE. The pendency or determination of a civil action
7-4 brought under this chapter or a criminal prosecution for the same
7-5 violation does not bar the other action.
7-6 SECTION 6. This Act takes effect September 1, 1995.
7-7 SECTION 7. The importance of this legislation and the
7-8 crowded condition of the calendars in both houses create an
7-9 emergency and an imperative public necessity that the
7-10 constitutional rule requiring bills to be read on three several
7-11 days in each house be suspended, and this rule is hereby suspended.