By Berlanga, Holzheauser, Saunders, et al. H.B. No. 3226
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to protection of coastal resources.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 33.004, Natural Resources Code, is
1-5 amended by amending Subdivision (8) and adding Subdivisions (13)
1-6 and (14) to read as follows:
1-7 (8) "Management program" means the coastal <public
1-8 land> management program provided by this chapter <and shall
1-9 include a comprehensive statement in words, maps, illustrations, or
1-10 other media inventorying coastal public land resources and
1-11 capabilities and setting forth objectives, policies, and standards
1-12 to guide planning and to control the utilization of those
1-13 resources>.
1-14 (13) "Council" means the Coastal Coordination Council.
1-15 (14) "Coastal zone" means the portion of the coastal
1-16 area located within the boundaries established by the coastal
1-17 management program under Section 33.053(a)(1).
1-18 SECTION 2. Sections 33.051, 33.052, 33.053, and 33.055,
1-19 Natural Resources Code, are amended to read as follows:
1-20 Sec. 33.051. GENERAL DUTY. The board, the council, and the
1-21 land office shall perform the duties provided in this subchapter.
1-22 Sec. 33.052. DEVELOPMENT OF COASTAL MANAGEMENT PROGRAM.
1-23 (a) The commissioner shall develop a continuing comprehensive
1-24 coastal management program pursuant to the policies stated in
2-1 Section 33.202 <33.001> of this code. The program is not effective
2-2 until approved by a majority of the council under Section 33.204 of
2-3 this code.
2-4 (b) In developing the program, the land office shall act as
2-5 the lead agency to coordinate and develop a long-term plan for the
2-6 management of uses affecting coastal natural resource
2-7 <conservation> areas, in cooperation with other state agencies that
2-8 have duties relating to coastal matters, including those agencies
2-9 represented on the council <the Parks and Wildlife Department, the
2-10 attorney general's office, the Texas Water Commission, the Texas
2-11 Water Development Board, the State Department of Highways and
2-12 Public Transportation, and the Railroad Commission of Texas>. The
2-13 program <plan> shall implement the policies stated in Section
2-14 33.202 <33.001> of this code and shall include the elements listed
2-15 in Section 33.053 of this code.
2-16 (c) The council <land office> may appoint and establish
2-17 procedures for an advisory committee to advise the council and the
2-18 land office on coastal management issues. The advisory committee
2-19 may only include persons with expertise in coastal matters and
2-20 persons who live in the Texas coastal area. A member of the
2-21 advisory committee serves at the pleasure of the council <land
2-22 office>. A member is not entitled to compensation for services
2-23 performed as a member of the committee but may receive
2-24 reimbursement from land office funds for actual and necessary
2-25 expenses incurred in attending meetings of the advisory committee.
2-26 (d) For purposes of Subsections (a) and (b) of this section,
2-27 "coastal natural resource <conservation> areas" has the meaning
3-1 assigned by Section 33.203 of this code <includes beaches and
3-2 critical dune areas bordering on the seaward shore of the Gulf of
3-3 Mexico; coastal public submerged lands; washover channels on
3-4 barrier islands; historic areas, parks, wildlife refuges,
3-5 preserves, and other such designated natural resource management
3-6 areas within the coastal area; the water of the open Gulf of
3-7 Mexico, and the land lying beneath that water within the
3-8 jurisdiction of the state>.
3-9 (e) <The land office may adopt rules to implement this
3-10 section.>
3-11 <(f)> This section does not add to or subtract from the
3-12 duties and responsibilities of a state agency other than the land
3-13 office, the council, and the board.
3-14 <(g) The land office shall, on September 1 of even-numbered
3-15 years, present a biennial report to the legislature outlining the
3-16 status of coastal problems, issues, and programs.>
3-17 Sec. 33.053. ELEMENTS OF COASTAL MANAGEMENT PROGRAM. (a)
3-18 The coastal management program, in compliance with the Coastal Zone
3-19 Management Act of 1972 (16 U.S.C. Section 1451 et seq.), shall
3-20 include the following elements:
3-21 (1) an identification of the boundaries of the coastal
3-22 zone subject to the coastal management program as provided by
3-23 Section 33.2053(k) <a continuous inventory of coastal public land
3-24 and water resources including a determination of the extent and
3-25 location of the coastal public land>;
3-26 (2) a continuous analysis of the potential uses for
3-27 <which> the <coastal public> land and water within the coastal zone
4-1 <might be used>, including recommendations as to which
4-2 configurations of uses consonant with the policies of this chapter
4-3 maximize the benefits conferred on the present and future citizens
4-4 of Texas;
4-5 (3) guidelines on the priority of uses <in coastal
4-6 public land> within the coastal zone <area>, including specifically
4-7 those uses of lowest priority;
4-8 (4) a list <definition> of the <permissible> uses of
4-9 the <coastal public> land and water within the coastal zone that
4-10 are permissible under state law and under agency or subdivision
4-11 actions described by Sections 33.2051 and 33.2053 and that <and
4-12 definitions of the uses of adjacent areas which> would have a
4-13 direct and significant <adverse> impact on the <management or use
4-14 of> coastal waters <public land or water>;
4-15 (5) recommendations as to increments of jurisdiction
4-16 or authority necessary to protect <coastal public> land and water
4-17 within the coastal zone from direct and significant detrimental
4-18 <adverse> consequences flowing from the uses of adjacent land;
4-19 (6) an inventory of designated coastal natural
4-20 resource areas, as defined by Section 33.203, <endangered
4-21 environments and resources> in the coastal zone <public land>;
4-22 <and>
4-23 (7) a description of <recommendations for any changes
4-24 necessary in> the organizational structure by which the coastal
4-25 management program is implemented and administered;
4-26 (8) a compilation of state constitutional provisions,
4-27 laws, rules, and judicial decisions under which the state proposes
5-1 to exercise control over the uses of land and water described by
5-2 Subdivision (4);
5-3 (9) a list of each agency or subdivision action, as
5-4 described by Sections 33.2051 and 33.2053, that may have a direct
5-5 and significant detrimental impact on coastal natural resource
5-6 areas;
5-7 (10) a list of each federal agency action or activity
5-8 and each outer continental shelf plan that may have a direct and
5-9 significant detrimental impact on coastal natural resource areas;
5-10 (11) a procedure, as described under Sections 33.205,
5-11 33.2051, 33.2052, 33.2053, 33.206, 33.208, and 33.209, for
5-12 determining the consistency of an agency or subdivision action or a
5-13 federal agency action or activity or outer continental shelf plan
5-14 with the goals and policies of the coastal management program;
5-15 (12) a definition of "gulf beach," as defined by
5-16 Section 33.203, and a description of the statutory planning process
5-17 or program for protection of and access to public beaches and other
5-18 public coastal areas of environmental, recreational, historical,
5-19 aesthetic, ecological, or cultural value;
5-20 (13) a description of the statutory planning process
5-21 or program for energy facilities likely to be located in, or that
5-22 may directly and significantly affect, the coastal zone;
5-23 (14) a description of the statutory planning process
5-24 or program for:
5-25 (A) assessing the effects of shoreline erosion;
5-26 (B) studying and evaluating ways to control or
5-27 reduce the impact of shoreline erosion; and
6-1 (C) restoring areas detrimentally affected by
6-2 shoreline erosion;
6-3 (15) a description of the state's statutory program
6-4 regulating nonpoint source water pollution, as it relates to the
6-5 coastal zone; and
6-6 (16) an explanation of the relationship of specific
6-7 policies of the coastal management program to:
6-8 (A) protection of resources;
6-9 (B) management of coastal development; and
6-10 (C) simplification of governmental procedures.
6-11 (b) For purposes of Subsections (a)(9) and (a)(11), "agency
6-12 or subdivision action" has the meaning assigned by Section 33.203.
6-13 (c) For purposes of Subsections (a)(10) and (a)(11),
6-14 "federal agency action," "federal agency activity," and "outer
6-15 continental shelf plan" have the meanings assigned by Section
6-16 33.203.
6-17 Sec. 33.055. PUBLIC HEARINGS TO CONSIDER COASTAL MANAGEMENT
6-18 PROGRAM. <(a)> In developing, reviewing, or amending the coastal
6-19 management program, after due notice to affected persons and the
6-20 public generally, the commissioner and the council shall hold or
6-21 have held public hearings as the commissioner and the council
6-22 determine <determines> to be appropriate.
6-23 <(b) In reviewing or amending the management program, the
6-24 commissioner may hold or have held public hearings in the manner
6-25 provided in Subsection (a) of this section.>
6-26 SECTION 3. Section 33.202(a), Natural Resources Code, is
6-27 amended to read as follows:
7-1 (a) It is declared to be the policy of this state to make
7-2 more effective and efficient use of public funds and provide for
7-3 more effective and efficient management of coastal natural resource
7-4 areas, and to better serve the people of Texas by:
7-5 (1) continually reviewing the principal coastal
7-6 problems of state concern, coordinating the performance of
7-7 government <agencies, subdivisions, and> programs affecting coastal
7-8 natural resource areas, and <the> coordinating the measures
7-9 required to resolve identified coastal problems; and
7-10 (2) making all coastal management processes more
7-11 visible, accessible, coherent, consistent, and accountable to the
7-12 people of Texas.
7-13 SECTION 4. Subchapter F, Chapter 33, Natural Resources Code,
7-14 is amended by amending Sections 33.203, 33.204, 33.205, 33.206,
7-15 33.207, and 33.208, and adding Sections 33.2051, 33.2052, 33.2053,
7-16 33.209, 33.210, and 33.211 to read as follows:
7-17 Sec. 33.203. DEFINITIONS. In this subchapter:
7-18 (1) "Coastal natural resource areas" means:
7-19 (A) coastal barriers;
7-20 (B) coastal historic areas;
7-21 (C) coastal preserves;
7-22 (D) coastal shore areas;
7-23 (E) coastal wetlands;
7-24 (F) critical dune areas;
7-25 (G) critical erosion areas;
7-26 (H) gulf beaches;
7-27 (I) hard substrate reefs;
8-1 (J) oyster reefs;
8-2 (K) submerged land;
8-3 (L) special hazard areas;
8-4 (M) submerged aquatic vegetation;
8-5 (N) tidal sand or mud flats;
8-6 (O) water of the open Gulf of Mexico; and
8-7 (P) water under tidal influence <areas
8-8 designated in the coastal management plan as requiring special
8-9 management, including coastal public submerged lands, public
8-10 beaches, washover areas on peninsulas, mainland shorelines, and
8-11 barrier islands, protected sand dune complexes on the Gulf
8-12 shoreline, and parks, historic areas, wildlife refuges, preserves,
8-13 and other such natural resource management areas located within the
8-14 coastal area and designated in the coastal management plan>.
8-15 (2) "Coastal barrier" means an undeveloped area on a
8-16 barrier island, peninsula, or other protected area, as designated
8-17 by United States Fish and Wildlife Service maps.
8-18 (3) "Coastal historic area" means a site that is
8-19 specially identified in rules adopted by the Texas Historical
8-20 Commission or the Antiquities Committee as being coastal in
8-21 character and that is:
8-22 (A) a site on the National Register of Historic
8-23 Places, designated under 16 U.S.C. Section 470a and 36 CFR Part 63,
8-24 Chapter 1; or
8-25 (B) a state archaeological landmark, as defined
8-26 by Subchapter D, Chapter 191.
8-27 (4) "Coastal preserve" means any land, including a
9-1 park or wildlife management area, that is owned by the state and
9-2 that is:
9-3 (A) subject to Chapter 26, Parks and Wildlife
9-4 Code, because it is a park, recreation area, scientific area,
9-5 wildlife refuge, or historic site; and
9-6 (B) designated by the Parks and Wildlife
9-7 Commission as being coastal in character.
9-8 (5) "Coastal shore area" means an area within 100 feet
9-9 landward of the highwater mark on submerged land.
9-10 (6) "Coastal waters" means waters under tidal
9-11 influence and waters of the open Gulf of Mexico.
9-12 (7) "Coastal wetlands" means wetlands, as the term is
9-13 defined by Section 11.502, Water Code, located:
9-14 (A) seaward of the coastal facility designation
9-15 line established by rules adopted under Chapter 40;
9-16 (B) within rivers and streams, to the extent of
9-17 tidal influence, as shown on the Texas Natural Resource
9-18 Conservation Commission's stream segment maps;
9-19 (C) within one mile of the mean high tide of the
9-20 portion of river and stream described by Paragraph (B), except as
9-21 provided by Paragraphs (D) and (E);
9-22 (D) in the case of wetlands bordering the
9-23 portion of the Trinity River described by Paragraph (B):
9-24 (i) within the area located between the
9-25 mean high tide line on the western shoreline of that portion of the
9-26 river and Farm-to-Market Road 565 and Farm-to-Market Road 1409; or
9-27 (ii) within the area located between the
10-1 mean high tide line on the eastern shoreline of that portion of the
10-2 river and Farm-to-Market Road 563; or
10-3 (E) in the case of wetlands bordering the
10-4 portion of the Neches River described by Paragraph (B):
10-5 (i) within one mile from the mean high
10-6 tide line of the western shoreline of that portion of the river
10-7 described by Paragraph (B); or
10-8 (ii) within the area located between the
10-9 mean high tide line on the eastern shoreline of that portion of the
10-10 river and Farm-to-Market Road 105.
10-11 (8) "Critical area" means a coastal wetland, an oyster
10-12 reef, a hard substrate reef, submerged aquatic vegetation, or a
10-13 tidal sand or mud flat.
10-14 (9) "Critical dune area" means a protected sand dune
10-15 complex on the Gulf shoreline within 1,000 feet of mean high tide
10-16 designated by the land commissioner under Section 63.121.
10-17 (10) "Critical erosion area" means an area designated
10-18 by the land commissioner under Section 33.601(b).
10-19 (11) "Gulf beach" means a beach bordering the Gulf of
10-20 Mexico that is:
10-21 (A) located inland from the mean low tide line
10-22 to the natural line of vegetation bordering the seaward shore of
10-23 the Gulf of Mexico; or
10-24 (B) part of a contiguous beach area to which the
10-25 public has a right of use or easement:
10-26 (i) continuously held by the public; or
10-27 (ii) acquired by the public by
11-1 prescription, dedication, or estoppel.
11-2 (12) "Hard substrate reef" means a naturally occurring
11-3 hard substrate formation, including a rock outcrop or serpulid worm
11-4 reef, living or dead, in an intertidal or subtidal area.
11-5 (13) "Oyster reef" means a natural or artificial
11-6 formation that is:
11-7 (A) composed of oyster shell, live oysters, and
11-8 other living or dead organisms;
11-9 (B) discrete, contiguous, and clearly
11-10 distinguishable from scattered oyster shell or oysters; and
11-11 (C) located in an intertidal or subtidal area.
11-12 (14) "Special hazard area" means an area designated
11-13 under 42 U.S.C. Section 4001 et seq. as having special flood,
11-14 mudslide or mudflow, or flood-related erosion hazards and shown on
11-15 a flood hazard boundary map or flood insurance rate map as Zone A,
11-16 AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M, or E.
11-17 (15) "Submerged land" means land located under waters
11-18 under tidal influence or under waters of the open Gulf of Mexico,
11-19 without regard to whether the land is owned by the state or a
11-20 person other than the state.
11-21 (16) "Submerged aquatic vegetation" means rooted
11-22 aquatic vegetation growing in permanently inundated areas in
11-23 estuarine and marine systems.
11-24 (17) "Tidal sand or mud flat" means a silt, clay, or
11-25 sand substrate, without regard to whether it is vegetated by algal
11-26 mats, that occur in intertidal areas and that are regularly or
11-27 intermittently exposed and flooded by tides, including tides
12-1 induced by weather.
12-2 (18) "Water of the open Gulf of Mexico" means water in
12-3 this state, as defined by Section 26.001(5), Water Code, that is
12-4 part of the open water of the Gulf of Mexico and that is within the
12-5 territorial limits of the state.
12-6 (19) "Water under tidal influence" means water in this
12-7 state, as defined by Section 26.001(5), Water Code, that is subject
12-8 to tidal influence according to the Texas Natural Resource
12-9 Conservation Commission's stream segment map. The term includes
12-10 coastal wetlands.
12-11 (20) "Council" means the Coastal Coordination Council,
12-12 which shall consist of the commissioner, <the attorney general,>
12-13 the chair of the Parks and Wildlife Commission or a member of the
12-14 commission designated by the chair, the chair of the Texas Natural
12-15 Resource Conservation <Water> Commission or a member of the
12-16 commission designated by the chair, a member of the Railroad
12-17 Commission of Texas appointed by that commission, the chair of the
12-18 Texas Water Development Board or a member of the board designated
12-19 by the chair, the chair of the Texas Transportation Commission or a
12-20 member of the commission designated by the chair, a member of the
12-21 State Soil and Water Conservation Board appointed by that board,
12-22 and one city or county elected official who resides in the coastal
12-23 area, one owner of a business located in the coastal area who
12-24 resides in the coastal area, <and> one resident from the coastal
12-25 area, and a representative of agriculture, each appointed by the
12-26 governor with the advice and consent of the senate for two-year
12-27 terms. The terms of the positions on the council held by the city
13-1 or county elected official who resides in the coastal area and the
13-2 resident from the coastal area expire May 31 of each even-numbered
13-3 year. The terms of the positions on the council held by the owner
13-4 of a business located in the coastal area who resides in the
13-5 coastal area and the representative of agriculture expire May 31 of
13-6 each odd-numbered year.
13-7 (21) <(3)> "Agency or subdivision" means any state
13-8 agency, department, board, or commission or political subdivision
13-9 of the state<, subdivision, body politic, or other government
13-10 entity or unit>.
13-11 (22) <(4)> "Coastal management program <plan>" means
13-12 an ongoing, comprehensive program containing the elements required
13-13 for approval of a program under the Coastal Zone Management Act of
13-14 1972 (16 U.S.C. Section 1451 et seq.) that is designed to
13-15 coordinate agencies' management of activities that may adversely
13-16 affect coastal natural resource areas for the purpose of
13-17 continually making management of those activities more efficient
13-18 and effective <the plan as developed by the commissioner under
13-19 Section 33.052 of this code>.
13-20 (23) "Agency or subdivision action" means an action
13-21 described by Section 33.2051 or 33.2053.
13-22 (24) "Federal agency activity" means a function
13-23 performed by or for a federal agency in the exercise of its
13-24 statutory responsibility, including financial assistance, the
13-25 planning, construction, modification, or removal of a public work,
13-26 facility, or any other structure, and the acquisition, use, or
13-27 disposal of land or water resources. The term does not include the
14-1 issuance of a federal license or permit.
14-2 (25) "Federal agency action" means a license or permit
14-3 that a federal agency may issue that represents the proposed
14-4 federal authorization, approval, or certification needed by the
14-5 applicant to begin an activity.
14-6 (26) "Proposed action" means an agency or subdivision
14-7 action under consideration by the agency or subdivision, but with
14-8 respect to which the agency or subdivision has not made a final
14-9 decision.
14-10 (27) "Outer continental shelf plan" means a plan for
14-11 the exploration or development of, or production from, an area
14-12 leased under the Outer Continental Shelf Lands Act (43 U.S.C.
14-13 Section 1331 et seq.) and the rules adopted under that Act that is
14-14 submitted to the secretary of the United States Department of the
14-15 Interior after federal approval of the coastal management program.
14-16 Sec. 33.204. ADMINISTRATION <ADOPTION> OF COASTAL MANAGEMENT
14-17 PROGRAM <GOALS AND POLICIES; REVIEW>. (a) The council by rule
14-18 shall adopt <promulgate rules adopting the> goals and policies of
14-19 the coastal management program. A goal or policy may not require
14-20 an agency or subdivision to perform an action that would exceed the
14-21 constitutional or statutory authority of the agency or subdivision
14-22 to which the goal or policy applies <plan and make studies of
14-23 problems and issues affecting the management of coastal natural
14-24 resource areas as provided in the plan>.
14-25 (b) The council shall meet once in each calendar quarter.
14-26 The commissioner is chair of the council. The chair or any three
14-27 members of the council <and> may convene special meetings at other
15-1 times.
15-2 (c) Except as provided by Sections 33.205(c)(3) and
15-3 33.206(a), the council may act on the agreement of a majority of a
15-4 quorum of the council.
15-5 (d) For each matter to be reviewed by the council under
15-6 Section 33.205(c) or (d) <33.205> of this code, the governor shall
15-7 designate a local elected official from a county or municipality
15-8 directly affected by the matter under review. The local official
15-9 shall serve as a nonvoting participant on the council for purposes
15-10 of reviewing and acting on that matter only.
15-11 (e) <(c)> In conducting reviews under Section 33.205 of this
15-12 code, the council shall receive and consider the oral or written
15-13 testimony of any person regarding <the goals and policies of> the
15-14 coastal management program as the testimony relates to the agency
15-15 or subdivision action or federal agency action or activity or outer
15-16 continental shelf plan under review <plan>. The council may
15-17 reasonably limit the length and format of the testimony and the
15-18 time at which it will be received. Notice of the period during
15-19 which the testimony will be received shall be published in the
15-20 Texas Register and in a newspaper of general circulation in each
15-21 county directly affected by the matter under review before the
15-22 commencement of that period. The council shall consider only the
15-23 record before the agency or subdivision involved in the matter
15-24 under review, the agency's or subdivision's findings, applicable
15-25 laws and rules, any additional information provided by that agency
15-26 or subdivision, and public testimony under this subsection,
15-27 provided that if the agency or subdivision did not hold a hearing,
16-1 make a record, or make findings, the council may hold a hearing and
16-2 make findings necessary to a complete and thorough review.
16-3 (f) <(d)> The land office shall assist the council in
16-4 carrying out its duties. The council members may <shall> not
16-5 receive compensation for services but may receive reimbursement for
16-6 actual and necessary expenses. The land office, in coordination
16-7 with other agencies and subdivisions, shall prepare an annual
16-8 report on the effectiveness of the coastal management program. The
16-9 land office shall submit the report to the council for approval.
16-10 On or before January 15 of each odd-numbered year, the land office
16-11 shall send to the legislature each of the previous two annual
16-12 reports.
16-13 Sec. 33.205. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM;
16-14 COUNCIL <STANDARDS; SUBMISSION FOR> REVIEW. (a) An agency or
16-15 subdivision that takes an agency or subdivision action described by
16-16 Section 33.2051 or 33.2053 <All actions taken or authorized by
16-17 state agencies and subdivisions> that may adversely affect a
16-18 coastal natural resource area shall <areas, including discharges
16-19 and withdrawals that may significantly affect water quality in
16-20 state waters subject to tidal influence, must> comply with the
16-21 goals and policies of the coastal management program.
16-22 (b) An agency or subdivision subject to the requirements of
16-23 Subsection (a) <plan. In developing rules and policies applicable
16-24 in coastal areas and performing actions subject to the requirements
16-25 of this subsection, state agencies and subdivisions> shall affirm
16-26 that it has taken <take> into account the goals and policies of the
16-27 coastal management program by issuing a written determination that
17-1 a proposed action described by Section 33.2051 or 33.2053 is
17-2 consistent with the program goals and policies <plan>.
17-3 (c) <(b)> The council may not <shall> review a proposed
17-4 <any> action subject to the requirements of Subsections
17-5 <Subsection> (a) and (b) of this section for consistency with the
17-6 goals and policies of the coastal management program unless:
17-7 (1) the consistency determination for the proposed
17-8 action was contested by:
17-9 (A) a council member or an agency that was a
17-10 party in a formal hearing under Chapter 2001, Government Code, or
17-11 in an alternative dispute resolution process; or
17-12 (B) a council member or other person by the
17-13 filing of written comments with the agency before the action was
17-14 proposed if the proposed action is one for which a formal hearing
17-15 under Chapter 2001, Government Code, is not available;
17-16 (2) a person described by Subdivision (1) of this
17-17 subsection files a request for referral alleging a significant
17-18 unresolved dispute regarding the proposed action's consistency with
17-19 the goals and policies of the coastal management program; and
17-20 (3) <that the commissioner submits to the council for
17-21 review. The council shall review any action subject to the
17-22 requirements of Subsection (a) of this section that is submitted to
17-23 the council by> any three regular members of the council agree that
17-24 there is a significant unresolved dispute regarding the proposed
17-25 action's consistency with the goals and policies of the coastal
17-26 management program and the matter is placed on the agenda for a
17-27 council meeting<.>
18-1 <(c) An action must be referred to the council within 30
18-2 days of the date it becomes final>.
18-3 (d) If consistency review thresholds are in effect under
18-4 Section 33.2052, the council may not review a proposed action
18-5 subject to the requirements of Subsections (a) and (b) for
18-6 consistency with the goals and policies of the coastal management
18-7 program unless the requirements of Subsection (c) are satisfied
18-8 and:
18-9 (1) if the proposed action is one for which a formal
18-10 hearing under Chapter 2001, Government Code, is available:
18-11 (A) the action exceeds the applicable thresholds
18-12 and the agency's consistency determination was contested in a
18-13 formal hearing or in an alternative dispute resolution process; or
18-14 (B) the action does not exceed the applicable
18-15 thresholds but may directly and adversely affect a critical area,
18-16 critical dune area, coastal park, wildlife management area or
18-17 preserve, or gulf beach and a state agency contested the agency's
18-18 consistency determination in a formal hearing; or
18-19 (2) if the proposed action is one for which a formal
18-20 hearing under Chapter 2001, Government Code, is not available to
18-21 contest the agency's determination, the action exceeds the
18-22 applicable thresholds.
18-23 (e) The council must consider and act on a matter referred
18-24 under Subsection (c) or (d) before the 26th day after the date the
18-25 agency or subdivision proposed the action. For purposes of this
18-26 section, an action subject to the contested case provisions of
18-27 Chapter 2001, Government Code, is proposed when notice of a
19-1 decision or order is issued under Section 2001.142, Government Code
19-2 <the matter within 90 days of referral>.
19-3 (f) The council by rule shall establish a process by which
19-4 an applicant for a permit or other proposed action described in
19-5 Section 33.2053, or an agency or subdivision proposing an action,
19-6 may request and receive a preliminary consistency review. The
19-7 rules shall:
19-8 (1) create a permitting assistance group composed of
19-9 representatives of council member agencies and other interested
19-10 council members to coordinate the preliminary reviews; and
19-11 (2) require that the following written information be
19-12 produced not later than the 45th day after the date of the request
19-13 for preliminary review:
19-14 (A) a statement from each agency or subdivision
19-15 required to permit or approve the project as to whether the agency
19-16 or subdivision anticipates approving or denying the application;
19-17 (B) if an agency or subdivision intends to deny
19-18 an application, the agency's or subdivision's explanation of the
19-19 grounds for denial and recommendations for resolving the grounds in
19-20 a way that would allow the application to be approved;
19-21 (C) if enough information is already available,
19-22 a preliminary finding as to whether the project is likely to be
19-23 found consistent with the goals and policies of the coastal
19-24 management program; and
19-25 (D) if the project is likely to be found
19-26 inconsistent with the goals and policies of the coastal management
19-27 program, an explanation and recommendation for resolving the
20-1 inconsistency in a way that would allow the project to be found
20-2 consistent.
20-3 (g) The council by rule shall establish a process by which
20-4 an individual or small business may request and receive assistance
20-5 with filing applications for permits or other proposed actions
20-6 described by Section 33.2053. The rules shall provide for:
20-7 (1) the coordination of preapplication assistance
20-8 through the permitting assistance group; and
20-9 (2) the provision of the following, by the permitting
20-10 assistance group, to an individual or a small business, on request:
20-11 (A) a list of the permits or other approvals
20-12 necessary for the project;
20-13 (B) a simple, understandable statement of all
20-14 permit requirements;
20-15 (C) a coordinated schedule for each agency's or
20-16 subdivision's decision on the action;
20-17 (D) a list of all the information the agencies
20-18 or subdivisions need to declare the applications for the permits or
20-19 other approvals administratively complete;
20-20 (E) assistance in completing the applications as
20-21 needed; and
20-22 (F) if enough information is already available,
20-23 a preliminary finding as to whether the project is likely to be
20-24 found consistent with the goals and policies of the coastal
20-25 management program.
20-26 (h) If an agency, subdivision, or applicant has received a
20-27 preliminary finding of consistency under Subsection (f)(2)(C) or
21-1 (g)(2)(F) and a request for referral was filed on that action under
21-2 Subsection (c)(2), the council may accept the request for referral
21-3 only if the agency or subdivision has substantially changed the
21-4 permit or proposed action since the preliminary finding was issued.
21-5 Sec. 33.2051. AGENCY RULEMAKING ACTIONS. (a) The land
21-6 office shall comply with Sections 33.205(a) and (b) when adopting
21-7 or amending a rule governing the prevention of, response to, or
21-8 remediation of a coastal oil spill.
21-9 (b) The Texas Natural Resource Conservation Commission shall
21-10 comply with Sections 33.205(a) and (b) when adopting or amending a
21-11 rule governing:
21-12 (1) air pollutant emissions;
21-13 (2) on-site sewage disposal systems; or
21-14 (3) underground storage tanks.
21-15 (c) The State Soil and Water Conservation Board shall comply
21-16 with Sections 33.205(a) and (b) when adopting or amending a rule
21-17 governing agricultural or silvicultural nonpoint source pollution.
21-18 (d) An agency shall comply with Sections 33.205(a) and (b)
21-19 when adopting or amending a rule governing an individual action
21-20 described by Section 33.2053.
21-21 (e) The council may not review a proposed rule of the Texas
21-22 Department of Agriculture.
21-23 Sec. 33.2052. CERTIFICATION OF AGENCY RULES; AGENCY ACTIONS
21-24 CONSIDERED CONSISTENT. (a) The council by rule shall establish a
21-25 process by which an agency may submit rules and rule amendments
21-26 described by Section 33.2051 to the council for review and
21-27 certification for consistency with the goals and policies of the
22-1 coastal management program.
22-2 (b) The process must provide that an agency may submit to
22-3 the council consistency review thresholds for the agency's actions
22-4 described in Section 33.2053. After the council certifies that an
22-5 agency's rules are consistent and approves the agency's thresholds,
22-6 the agency's consistency determination under Section 33.205(b) for
22-7 an action is final and is not subject to referral and review,
22-8 except as provided by Section 33.205(d).
22-9 (c) The council by rule shall provide that the council may
22-10 revoke its certification under Subsection (b) if the council finds
22-11 that an agency has:
22-12 (1) implemented certified rules in a manner that
22-13 conflicts with the goals and policies of the coastal management
22-14 program; or
22-15 (2) amended certified rules in a manner inconsistent
22-16 with the goals and policies of the coastal management program.
22-17 Sec. 33.2053. INDIVIDUAL AGENCY OR SUBDIVISION ACTIONS. (a)
22-18 The land office, the School Land Board, or a board for lease of
22-19 state-owned lands shall comply with Sections 33.205(a) and (b) when
22-20 issuing or approving:
22-21 (1) a mineral lease plan of operations;
22-22 (2) a geophysical or geochemical permit;
22-23 (3) a coastal easement;
22-24 (4) a miscellaneous easement;
22-25 (5) a coastal lease;
22-26 (6) a surface lease;
22-27 (7) a structure registration;
23-1 (8) a cabin permit;
23-2 (9) a navigation district lease;
23-3 (10) certification of a local government beach access
23-4 or dune protection plan; or
23-5 (11) an agency or subdivision wetlands mitigation
23-6 bank.
23-7 (b) The Public Utility Commission of Texas shall comply with
23-8 Sections 33.205(a) and (b) when issuing a certificate of
23-9 convenience and necessity.
23-10 (c) The Railroad Commission of Texas shall comply with
23-11 Sections 33.205(a) and (b) when issuing:
23-12 (1) a wastewater discharge permit;
23-13 (2) a waste disposal or storage pit permit; or
23-14 (3) a certification of a federal permit for the
23-15 discharge of dredge or fill material.
23-16 (d) The Texas Transportation Commission shall comply with
23-17 Sections 33.205(a) and (b) when approving:
23-18 (1) an acquisition of a site for the placement or
23-19 disposal of dredge material from, or the expansion, relocation, or
23-20 alteration of, the Gulf Intracoastal Waterway; or
23-21 (2) a transportation construction project or
23-22 maintenance program.
23-23 (e) The Texas Historical Commission and the Antiquities
23-24 Committee shall comply with Sections 33.205(a) and (b) when
23-25 issuing:
23-26 (1) a permit for destruction, alteration, or taking of
23-27 a coastal historic area; or
24-1 (2) a review of a federal undertaking affecting a
24-2 coastal historic area.
24-3 (f) The Texas Natural Resource Conservation Commission shall
24-4 comply with Sections 33.205(a) and (b) when issuing or approving:
24-5 (1) a wastewater discharge permit;
24-6 (2) a permit for a new concentrated animal feeding
24-7 operation located one mile or less from a critical area or coastal
24-8 waters;
24-9 (3) a permit for solid or hazardous waste treatment,
24-10 storage, or disposal;
24-11 (4) creation of a special purpose district or approval
24-12 of bonds for the purpose of construction of infrastructure on
24-13 coastal barriers;
24-14 (5) levee improvement or flood control projects;
24-15 (6) a certification of a federal permit for the
24-16 discharge of dredge or fill material;
24-17 (7) a declaration of an emergency and request for an
24-18 emergency release of water;
24-19 (8) a new permit for an annual appropriation of:
24-20 (A) 5,000 or more acre-feet of water within the
24-21 program boundary; or
24-22 (B) 10,000 or more acre-feet of water outside
24-23 the program boundary but within 200 stream miles of the coast;
24-24 (9) an amendment to a water permit for an increase in
24-25 an annual appropriation of:
24-26 (A) 5,000 or more acre-feet of water within the
24-27 program boundary; or
25-1 (B) 10,000 or more acre-feet of water outside
25-2 the program boundary but within 200 stream miles of the coast; or
25-3 (10) a change in the purpose of use of an annual
25-4 appropriation of water to a more consumptive use of:
25-5 (A) 5,000 or more acre-feet of water within the
25-6 program boundary; or
25-7 (B) 10,000 or more acre-feet of water outside
25-8 the program boundary but within 200 stream miles of the coast.
25-9 (g) The council may not review an action of the Texas
25-10 Natural Resource Conservation Commission described by Subsections
25-11 (f)(8)-(10) taken to implement a part of the Trans-Texas Water
25-12 Program that the Trans-Texas Water Program Policy Management
25-13 Committee has found to be consistent with the goals and policies of
25-14 the coastal management program. To find that the program is
25-15 consistent with the goals and policies, the Trans-Texas Water
25-16 Program Policy Management Committee must:
25-17 (1) include at least three members of the council, or
25-18 representatives of those members, as voting members of the
25-19 committee; and
25-20 (2) make the finding by a majority vote of those
25-21 members or their representatives.
25-22 (h) The Parks and Wildlife Department shall comply with
25-23 Sections 33.205(a) and (b) when issuing or approving:
25-24 (1) an oyster lease;
25-25 (2) a permit for taking, transporting, or possessing
25-26 threatened or endangered species;
25-27 (3) a permit for disturbing marl, sand, shell, or
26-1 gravel on state-owned land; or
26-2 (4) development by a person other than the Parks and
26-3 Wildlife Department that requires the use or taking of any public
26-4 land in a state park, wildlife management area, or preserve.
26-5 (i) A subdivision shall comply with Sections 33.205(a) and
26-6 (b) when issuing a dune protection permit or beachfront
26-7 construction certificate that authorizes:
26-8 (1) construction activity that is located 200 feet or
26-9 less landward of the line of vegetation and that results in the
26-10 disturbance of more than 7,000 square feet of dunes or dune
26-11 vegetation;
26-12 (2) construction activity that results in the
26-13 disturbance of more than 7,500 cubic yards of dunes;
26-14 (3) a coastal shore protection project undertaken on a
26-15 gulf beach or 200 feet or less landward of the line of vegetation
26-16 and that affects more than 500 linear feet of gulf beach; or
26-17 (4) a closure, relocation, or reduction in existing
26-18 public beach access or public beach access designated in an
26-19 approved local government beach access plan, other than for a short
26-20 term.
26-21 (j) An action to renew, amend, or modify an existing permit,
26-22 certificate, lease, easement, approval, or other action is not an
26-23 action under this section if the action is taken under a rule that
26-24 the council has certified under Section 33.2052 and:
26-25 (1) for a wastewater discharge permit, if the action
26-26 is not a major permit modification that would:
26-27 (A) increase pollutant loads to coastal waters;
27-1 or
27-2 (B) result in relocation of an outfall to a
27-3 critical area;
27-4 (2) for solid, hazardous, or nonhazardous waste
27-5 permits, if the action is not a Class III modification under rules
27-6 of the Texas Natural Resource Conservation Commission; or
27-7 (3) for any other action, if the action:
27-8 (A) only extends the period of the existing
27-9 authorization and does not authorize new or additional work or
27-10 activity; or
27-11 (B) is not directly relevant to Sections
27-12 33.205(a) and (b).
27-13 (k) The council shall establish a program boundary to limit
27-14 the geographic area in which the requirements of Sections 33.205(a)
27-15 and (b) apply. The boundary is the coastal facility designation
27-16 line as defined by Appendix 1 to 31 TAC Section 19.2 as that
27-17 appendix existed on the effective date of this section, as modified
27-18 by Section 33.203(7). Except as provided by Subsections
27-19 (f)(8)-(10), this subchapter does not apply to an agency action
27-20 authorizing an activity outside the program boundary.
27-21 Sec. 33.206. COUNCIL ACTION. (a) A proposed action is
27-22 consistent with the goals and policies of the coastal management
27-23 program and approved by the council unless, on the affirmative vote
27-24 of at least two-thirds of the members of the council, the council
27-25 determines the action to be inconsistent with the coastal
27-26 management program and protests <After reviewing an action of a
27-27 state agency or subdivision, the council may affirm or protest> the
28-1 action <of the state agency or subdivision>.
28-2 (b) If the council protests the proposed action, the council
28-3 shall report its findings on <remand> the matter to the <state>
28-4 agency or subdivision. The report <remand> shall specify how the
28-5 proposed action is inconsistent <include findings on
28-6 inconsistencies> with the goals and policies of the coastal
28-7 management program <plan> and <may> include specific
28-8 recommendations of the council regarding how the proposed action
28-9 may be modified or amended to make it consistent with the program.
28-10 Before the 21st day after the date the agency or subdivision
28-11 receives the report, the<. On remand, the state> agency or
28-12 subdivision shall review the findings and recommendations and
28-13 determine whether to modify or amend the proposed action to make it
28-14 consistent with the goals and policies of the coastal management
28-15 program and <plan. Should the agency or subdivision decide not to
28-16 amend its action as recommended by the council, it> shall notify
28-17 the council of its <that> decision.
28-18 (c) If an agency or subdivision does not modify or amend a
28-19 proposed action to be consistent with the goals and policies of the
28-20 coastal management program, the council shall request the attorney
28-21 general to issue an opinion on the consistency of the proposed
28-22 action with the coastal management program. The agency or
28-23 subdivision is stayed from taking the proposed action until the
28-24 attorney general issues the opinion. The attorney general shall
28-25 issue an opinion before the 26th day after the date the council
28-26 requests the opinion. <The state agency's or subdivision's action
28-27 on remand is subject to review by the council as provided in
29-1 Section 33.205 of this code. The only basis on which the council
29-2 may reverse a decision of an agency or subdivision is that the
29-3 action is inconsistent with the goals and policies of the coastal
29-4 management plan.>
29-5 (d) The council shall adopt procedural rules for the review
29-6 of federal actions, activities, and outer continental shelf plans
29-7 that incorporate the provisions of federal regulations governing
29-8 those reviews. The rules shall provide that the chair or any three
29-9 members may request additional information from a federal agency or
29-10 additional time for review as provided by the federal regulations.
29-11 (e) The council shall review any federal action, activity,
29-12 or outer continental shelf plan that any three members of the
29-13 council agree presents a significant unresolved issue regarding
29-14 consistency with the goals and policies of the coastal management
29-15 program and place the matter on the agenda of a meeting of <the
29-16 commissioner submits to> the council for review.
29-17 (f) If an activity requiring an agency or subdivision action
29-18 described by Section 33.2053 that falls below thresholds in effect
29-19 under Section 33.2052 also requires an equivalent federal permit or
29-20 license, the council may only determine the agency or subdivision
29-21 action's consistency. If an activity requiring an agency or
29-22 subdivision action above thresholds requires an equivalent federal
29-23 permit or license, the council may determine the consistency of the
29-24 agency or subdivision action or the federal license or permit, but
29-25 not both. The determination regarding the consistency of an action
29-26 made by the council under this subsection constitutes the state's
29-27 determination regarding consistency of the equivalent agency or
30-1 subdivision action or federal action.
30-2 (g) If, after review, the council finds a proposed federal
30-3 agency action or activity or outer continental shelf plan is
30-4 inconsistent with <does not comply with goals and policies of> the
30-5 coastal management program <plan>, and the federal agency does not
30-6 modify the action, activity, or outer continental shelf plan to
30-7 achieve consistency with the program, the governor, with the
30-8 assistance of the chair of the council, may seek mediation of the
30-9 matter in accordance with federal law <refer the matter to any
30-10 federal official authorized to review or act on the matter and may
30-11 pursue resolution of the matter with the federal official>.
30-12 (h) The council may not protest a proposed action by an
30-13 agency or subdivision pertaining to an application filed with that
30-14 agency or subdivision before the date the coastal management
30-15 program is adopted.
30-16 Sec. 33.207. COUNCIL RECOMMENDATIONS. In addition to the
30-17 report required by Section 33.206, the council:
30-18 (1) may periodically submit recommendations to an
30-19 agency or subdivision designed to encourage the agency or
30-20 subdivision to carry out its functions in a manner consistent with
30-21 the coastal management program, including recommendations for
30-22 methods to simplify governmental procedures and changes in
30-23 applicable rules or statutes; and
30-24 (2) shall report to the legislature on:
30-25 (A) recommended statutory changes needed to make
30-26 more effective and efficient use of public funds and provide for
30-27 more effective and efficient management of coastal natural resource
31-1 areas, including recommendations on methods to simplify
31-2 governmental procedures; and
31-3 (B) agency or subdivision actions that are not
31-4 consistent with the coastal management program. <JUDICIAL REVIEW.
31-5 A person aggrieved by a final action of the council may appeal to a
31-6 district court under the Administrative Procedure and Texas
31-7 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).>
31-8 Sec. 33.208. ENFORCEMENT. (a) The agency or subdivision
31-9 with jurisdiction over a proposed action shall enforce the
31-10 provisions of the coastal management program.
31-11 (b) If the attorney general issues an opinion under Section
31-12 33.206(c) that a proposed agency or subdivision action is
31-13 inconsistent with the coastal management program and the agency or
31-14 subdivision fails to implement the council's recommendation
31-15 regarding the action, the <The> attorney general<, at the request
31-16 of the council,> shall file suit in a district court of Travis
31-17 County <or in the county in which the violation occurs a suit> to
31-18 enforce this subchapter. The court shall consider the attorney
31-19 general's opinion in determining whether the proposed action is
31-20 consistent with the coastal management program.
31-21 (c) Notwithstanding the request of an opinion from, or the
31-22 filing of suit by, the attorney general, the council and the agency
31-23 or subdivision may enter into a settlement agreement with regard to
31-24 the proposed action. If the council and the agency or subdivision
31-25 enter into a settlement agreement, the council may rescind its
31-26 request for an opinion from the attorney general.
31-27 Sec. 33.209. PROHIBITION ON SPECIAL AREA MANAGEMENT PLANS.
32-1 The council may not develop or approve a special area management
32-2 plan, including a plan for an area designated under the national
32-3 estuary program.
32-4 Sec. 33.210. PRIVATE PROPERTY. The requirements of this
32-5 subchapter may not be applied in a manner that would result in the
32-6 taking, damage, or destruction of property without adequate
32-7 compensation.
32-8 Sec. 33.211. SUNSET PROVISION. The Coastal Coordination
32-9 Council is subject to Chapter 325, Government Code (Texas Sunset
32-10 Act). Unless continued in existence as provided by that chapter,
32-11 the council is abolished and this subchapter expires September 1,
32-12 1999.
32-13 SECTION 5. As soon as possible on or after the effective
32-14 date of this Act, the governor shall appoint to the Coastal
32-15 Coordination Council:
32-16 (1) a city or county elected official who resides in
32-17 the coastal area, if a vacancy occurs in that position on the
32-18 council;
32-19 (2) a resident from the coastal area, if a vacancy
32-20 occurs in that position on the council;
32-21 (3) an owner of a business located in the coastal area
32-22 who resides in the coastal area; and
32-23 (4) a representative of agriculture.
32-24 SECTION 6. The legislature intends that, subject to Chapter
32-25 33, Natural Resources Code, as amended by this Act, the coastal
32-26 management program submitted by the governor under 16 U.S.C.
32-27 Section 1455 on or after the effective date of this Act be as
33-1 similar to the coastal management program submitted before the
33-2 effective date of this Act as is practicable.
33-3 SECTION 7. If the secretary of the United States Department
33-4 of Commerce and the administrator of the United States
33-5 Environmental Protection Agency find Texas has failed to submit an
33-6 approvable coastal nonpoint pollution control program as required
33-7 by 16 U.S.C. Section 1455b, which would result in the withholding
33-8 of money under 16 U.S.C. Sections 1455b(c)(3) and (4), the governor
33-9 shall withdraw any coastal management program developed under
33-10 Chapter 33, Natural Resources Code, that has been:
33-11 (1) approved by the secretary of the United States
33-12 Department of Commerce; or
33-13 (2) submitted to the secretary of the United States
33-14 Department of Commerce for approval under 16 U.S.C. Section 1455.
33-15 SECTION 8. The importance of this legislation and the
33-16 crowded condition of the calendars in both houses create an
33-17 emergency and an imperative public necessity that the
33-18 constitutional rule requiring bills to be read on three several
33-19 days in each house be suspended, and this rule is hereby suspended,
33-20 and that this Act take effect and be in force from and after its
33-21 passage, and it is so enacted.