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 * * * * *