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.