1-1  By:  Bosse (Senate Sponsor - Truan)                   H.B. No. 1823
    1-2        (In the Senate - Received from the House May 11, 1995;
    1-3  May 12, 1995, read first time and referred to Committee on Natural
    1-4  Resources; May 19, 1995, reported favorably by the following vote:
    1-5  Yeas 10, Nays 0; May 19, 1995, sent to printer.)
    1-6                         A BILL TO BE ENTITLED
    1-7                                AN ACT
    1-8  relating to regulation by the Parks and Wildlife Department of the
    1-9  taking of marl, sand, gravel, shell, or mudshell; providing
   1-10  penalties.
   1-11        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-12        SECTION 1.  Section 86.004, Parks and Wildlife Code, is
   1-13  amended to read as follows:
   1-14        Sec. 86.004.  Granting of Permit.  The commission may grant a
   1-15  permit to an applicant who has complied with all requirements of
   1-16  the commission if the commission finds that the disturbing, taking,
   1-17  and carrying away of marl, sand, gravel, shell, or mudshell will
   1-18  not:
   1-19              (1)  damage or injuriously affect any island, reef,
   1-20  bar, channel, river, creek, or bayou used for navigation, or any
   1-21  oysters, oyster beds, <or> fish, or wildlife in or near the water
   1-22  used in the operation; <and>
   1-23              (2)  change or injuriously affect any current that
   1-24  would affect navigation;
   1-25              (3)  significantly and injuriously change the hydrology
   1-26  of the river;
   1-27              (4)  significantly increase downstream nonpoint source
   1-28  pollution; and
   1-29              (5)  significantly accelerate erosion upstream or
   1-30  downstream from the place where the taking occurs.
   1-31        SECTION 2.  Section 86.007, Parks and Wildlife Code, is
   1-32  amended to read as follows:
   1-33        Sec. 86.007.  PERMIT BY RULE <PERMITS NOT ASSIGNABLE>.  (a)
   1-34  The commission by rule may establish conditions under which
   1-35  specified activities are authorized without the requirement of
   1-36  individual permits under this chapter.  An activity conducted in
   1-37  accordance with those conditions is considered to be under a
   1-38  permit.
   1-39        (b)  Rules adopted under this section shall require a person
   1-40  proposing to rely on the authorization provided for by this section
   1-41  to notify the department and, as appropriate, to report to the
   1-42  department during and after the activity.  The rules may provide
   1-43  for a waiver of the requirement for advance notification in an
   1-44  emergency.  The commission may require a nonrefundable processing
   1-45  fee to be submitted with the notification.
   1-46        (c)  The department, under rules adopted under this section,
   1-47  may require an individual permit for any proposed activity.
   1-48        (d)  In addition to the requirements under Subchapter B,
   1-49  Chapter 2001, Government Code, the rules shall require public
   1-50  notification of the proposed activity to provide the public with an
   1-51  opportunity to comment on the appropriateness of requiring an
   1-52  individual permit.
   1-53        (e)  The rules must establish best management practices that
   1-54  must be followed to minimize potential adverse effects on resources
   1-55  under the commission's jurisdiction.  <A permit issued under this
   1-56  chapter is not assignable.>
   1-57        SECTION 3.  Section 86.011, Parks and Wildlife Code, is
   1-58  amended to read as follows:
   1-59        Sec. 86.011.  DELEGATION OF AUTHORITY <NO SPECIAL
   1-60  PRIVILEGES>.  (a)  The commission may delegate to the director
   1-61  authority to grant uncontested permits under  this section if:
   1-62              (1)  the application meets all statutory and
   1-63  administrative criteria;
   1-64              (2)  no new issues affecting commission policy are
   1-65  presented;
   1-66              (3)  no objection is raised by department staff; and
   1-67              (4)  no timely written requests for hearing are filed
   1-68  or all requests for hearing have been withdrawn.
    2-1        (b)  On request by the applicant or a concerned person with a
    2-2  justiciable interest, the commission shall review an application.
    2-3  <No special privileges or exclusive rights may be granted to any
    2-4  person to take marl, sand, gravel, shell, or mudshell or to operate
    2-5  in or on any place under this chapter.>
    2-6        SECTION 4.  Section 86.020, Parks and Wildlife Code, is
    2-7  amended to read as follows:
    2-8        Sec. 86.020.  RULES <PENALTY>.  The commission may adopt
    2-9  rules to govern:
   2-10              (1)  consideration of applications;
   2-11              (2)  setting and collection of application fees;
   2-12              (3)  assessment of transcript costs in contested cases;
   2-13              (4)  permit conditions;
   2-14              (5)  issuance of permits by rule;
   2-15              (6)  pricing of and terms for payment for substrate
   2-16  materials;
   2-17              (7)  assignability of permits;
   2-18              (8)  payment of refunds;
   2-19              (9)  permit renewal; and
   2-20              (10)  any other matter necessary for the administration
   2-21  of this chapter.  <A person who violates Section 86.002 or 86.018
   2-22  of this code commits an offense that is a Class C Parks and
   2-23  Wildlife Code misdemeanor.>
   2-24        SECTION 5.  Chapter 86, Parks and Wildlife Code, is amended
   2-25  by adding Sections 86.021-86.027 to read as follows:
   2-26        Sec. 86.021.  EXEMPTIONS.  (a)  The commission by rule shall
   2-27  exempt the projects listed in Subsection (b) from any permit
   2-28  requirement or payment to the department for materials removed if
   2-29  the commission finds that the state will not be deprived of
   2-30  significant revenue and there will be no significant adverse
   2-31  effects on navigation, the coastal sediment budget, riverine
   2-32  hydrology, erosion, or fish and wildlife resources or their
   2-33  habitat.
   2-34        (b)  Projects that may be exempted under Subsection (a)
   2-35  include:
   2-36              (1)  projects resulting in insignificant takings or
   2-37  disturbances of marl, sand, gravel, shell, or mudshell;
   2-38              (2)  projects to restore or maintain the storage
   2-39  capacity of existing public water supplies;
   2-40              (3)  maintenance projects carried out by public
   2-41  utilities for noncommercial purposes; and
   2-42              (4)  public road projects contracted by the Texas
   2-43  Department of Transportation.
   2-44        (c)  The commission may require the performance of scientific
   2-45  studies as needed to determine the cumulative effect of permitted
   2-46  operations in a watershed on natural resources using the criteria
   2-47  described by Section 86.004 and may provide for permit holders to
   2-48  participate in the performance of those studies.  The commission
   2-49  may reimburse a participating permit holder for costs incurred by
   2-50  the permit holder in performing the study in an amount equal to not
   2-51  more than one-fourth of all royalty fees paid by the permit holder
   2-52  to the commission.  Total reimbursements to all participating
   2-53  permit holders may not exceed one-half the total cost of the study.
   2-54        Sec. 86.022.  PENALTY.  A person who violates Section 86.002
   2-55  or 86.018 commits an offense that is a Class C Parks and Wildlife
   2-56  Code misdemeanor.
   2-57        Sec. 86.023.  LIABILITY FOR VALUE OF MATERIAL TAKEN.  A
   2-58  person who takes marl, sand, gravel, shell, or mudshell under the
   2-59  jurisdiction of the commission in violation of this chapter or a
   2-60  rule adopted under this chapter is liable to the state for the
   2-61  value of:
   2-62              (1)  the material taken; and
   2-63              (2)  any other natural resource under the department's
   2-64  jurisdiction that is damaged or diminished in value.
   2-65        Sec. 86.024.  CIVIL PENALTY.  A person who violates this
   2-66  chapter or a rule, permit, or order of the department issued or
   2-67  adopted under this chapter is subject to a civil penalty of not
   2-68  less than $100 or more than $10,000 for each act of violation and
   2-69  for each day of violation, to be recovered as provided in this
   2-70  chapter.
    3-1        Sec. 86.025.  ENFORCEMENT.  (a)  If a person has violated, is
    3-2  violating, or is threatening to violate this chapter or a rule,
    3-3  permit, or order of the department issued, adopted, or entered into
    3-4  under this chapter, the director may bring suit to restrain  the
    3-5  person from continuing  the violation or threat of violation, to
    3-6  recover the civil penalty under Section 86.024, to recover the
    3-7  value of material taken in violation of this chapter, or for any
    3-8  appropriate combination of these remedies.
    3-9        (b)  On application for injunctive relief and a finding that
   3-10  a person is violating or threatening to violate a provision of this
   3-11  chapter or a rule, permit, or order of the department under this
   3-12  chapter, a court shall grant the injunctive relief the facts may
   3-13  warrant, without requirement for bond.
   3-14        (c)  At the request of the director, the attorney general or
   3-15  the county attorney of the county in which the violation or threat
   3-16  of violation occurred shall bring suit for injunctive relief, to
   3-17  recover a civil penalty, to recover the value of material taken in
   3-18  violation of this chapter, or for any appropriate combination of
   3-19  these remedies.  Amounts recovered under this section shall be
   3-20  credited to the game, fish, and water safety fund.  The actual cost
   3-21  of investigation, reasonable attorney's fees, and reasonable expert
   3-22  witness fees also may be recovered, and those recovered amounts
   3-23  shall be credited to the same operating funds from which
   3-24  expenditures occurred.
   3-25        Sec. 86.026.  MORE THAN ONE DEFENDANT.  If more than one
   3-26  defendant is named in an action under this chapter, each defendant
   3-27  against whom judgment is rendered is jointly and severally liable
   3-28  for recovery provided by this chapter.
   3-29        Sec. 86.027.  CIVIL SUIT AND CRIMINAL PROSECUTION
   3-30  PERMISSIBLE.  The pendency or determination of a civil action
   3-31  brought under this chapter or a criminal prosecution for the same
   3-32  violation does not bar the other action.
   3-33        SECTION 6.  This Act takes effect September 1, 1995.
   3-34        SECTION 7.  The importance of this legislation and the
   3-35  crowded condition of the calendars in both houses create an
   3-36  emergency and an imperative public necessity that the
   3-37  constitutional rule requiring bills to be read on three several
   3-38  days in each house be suspended, and this rule is hereby suspended.
   3-39                               * * * * *