By Bosse H.B. No. 1823
74R5834 MI-F
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 a civil
1-4 penalty.
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; and
4-24 (3) maintenance projects undertaken for noncommercial
4-25 purposes by public utilities.
4-26 Sec. 86.022. PENALTY. A person who violates Section 86.002
4-27 or 86.018 commits an offense that is a Class C Parks and Wildlife
5-1 Code misdemeanor.
5-2 Sec. 86.023. LIABILITY FOR VALUE OF MATERIAL TAKEN. A
5-3 person who takes marl, sand, gravel, shell, or mudshell under the
5-4 jurisdiction of the commission in violation of this chapter or a
5-5 rule adopted under this chapter is liable to the state for the
5-6 value of:
5-7 (1) the material taken; and
5-8 (2) any other natural resource under the department's
5-9 jurisdiction that is damaged or diminished in value.
5-10 Sec. 86.024. CIVIL PENALTY. A person who violates this
5-11 chapter or a rule, permit, or order of the department issued or
5-12 adopted under this chapter is subject to a civil penalty of not
5-13 less than $100 or more than $10,000 for each act of violation and
5-14 for each day of violation, to be recovered as provided in this
5-15 chapter.
5-16 Sec. 86.025. ENFORCEMENT. (a) If a person has violated, is
5-17 violating, or is threatening to violate this chapter or a rule,
5-18 lease, easement, permit, or order of the department issued,
5-19 adopted, or entered into under this chapter, the director may bring
5-20 suit to restrain the person from continuing the violation or
5-21 threat of violation, to recover the civil penalty under Section
5-22 86.024, to recover the value of material taken in violation of this
5-23 chapter, or for any appropriate combination of these remedies.
5-24 (b) On application for injunctive relief and a finding that
5-25 a person is violating or threatening to violate a provision of this
5-26 chapter or a rule, permit, or order of the department under this
5-27 chapter, a court shall grant the injunctive relief the facts may
6-1 warrant, without requirement for bond.
6-2 (c) At the request of the director, the attorney general or
6-3 the county attorney of the county in which the violation or threat
6-4 of violation occurred shall bring suit for injunctive relief, to
6-5 recover a civil penalty, to recover the value of material taken in
6-6 violation of this chapter, or for any appropriate combination of
6-7 these remedies. Amounts recovered under this section shall be
6-8 credited to the game, fish, and water safety fund. The actual cost
6-9 of investigation, reasonable attorney's fees, and reasonable expert
6-10 witness fees also may be recovered, and those recovered amounts
6-11 shall be credited to the same operating funds from which
6-12 expenditures occurred.
6-13 Sec. 86.026. MORE THAN ONE DEFENDANT. If more than one
6-14 defendant is named in an action under this chapter, each defendant
6-15 against whom judgment is rendered is jointly and severally liable
6-16 for recovery provided by this chapter.
6-17 Sec. 86.027. CIVIL SUIT AND CRIMINAL PROSECUTION
6-18 PERMISSIBLE. The pendency or determination of a civil action
6-19 brought under this chapter or a criminal prosecution for the same
6-20 violation does not bar the other action.
6-21 SECTION 6. This Act takes effect September 1, 1995.
6-22 SECTION 7. The importance of this legislation and the
6-23 crowded condition of the calendars in both houses create an
6-24 emergency and an imperative public necessity that the
6-25 constitutional rule requiring bills to be read on three several
6-26 days in each house be suspended, and this rule is hereby suspended.