By Berlanga, Holzheauser, Saunders, et al. H.B. No. 3226
Substitute the following for H.B. No. 3226:
By Turner of Coleman C.S.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(b) of this code.
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 must include the elements required
3-19 by<, in compliance with> the Coastal Zone Management Act of 1972
3-20 (16 U.S.C. Section 1451 et seq.)<, shall include the following
3-21 elements:>
3-22 <(1) a continuous inventory of coastal public land and
3-23 water resources including a determination of the extent and
3-24 location of the coastal public land;>
3-25 <(2) a continuous analysis of the potential uses for
3-26 which the coastal public land and water might be used, including
3-27 recommendations as to which configurations of uses consonant with
4-1 the policies of this chapter maximize the benefits conferred on the
4-2 present and future citizens of Texas;>
4-3 <(3) guidelines on the priority of uses in coastal
4-4 public land within the coastal area, including specifically those
4-5 uses of lowest priority;>
4-6 <(4) a definition of the permissible uses of the
4-7 coastal public land and water and definitions of the uses of
4-8 adjacent areas which would have a significant adverse impact on the
4-9 management or use of coastal public land or water;>
4-10 <(5) recommendations as to increments of jurisdiction
4-11 or authority necessary to protect coastal public land and water
4-12 from adverse consequences flowing from the uses of adjacent land;>
4-13 <(6) an inventory of endangered environments and
4-14 resources in the coastal public land; and>
4-15 <(7) recommendations for any changes necessary in the
4-16 organizational structure by which the program is implemented and
4-17 administered>.
4-18 (b) The coastal management program must identify the
4-19 boundaries of the coastal zone subject to the program as provided
4-20 by Section 33.2053(k) of this code.
4-21 Sec. 33.055. PUBLIC HEARINGS TO CONSIDER COASTAL MANAGEMENT
4-22 PROGRAM. <(a)> In developing, reviewing, or amending the coastal
4-23 management program, after due notice to affected persons and the
4-24 public generally, the commissioner and the council shall hold or
4-25 have held public hearings as the commissioner and the council
4-26 determine <determines> to be appropriate.
4-27 <(b) In reviewing or amending the management program, the
5-1 commissioner may hold or have held public hearings in the manner
5-2 provided in Subsection (a) of this section.>
5-3 SECTION 3. Section 33.202(a), Natural Resources Code, is
5-4 amended to read as follows:
5-5 (a) It is declared to be the policy of this state to make
5-6 more effective and efficient use of public funds and provide for
5-7 more effective and efficient management of coastal natural resource
5-8 areas, and to better serve the people of Texas by:
5-9 (1) continually reviewing the principal coastal
5-10 problems of state concern, coordinating the performance of
5-11 government <agencies, subdivisions,> programs affecting coastal
5-12 natural resource areas, and <the> coordinating the measures
5-13 required to resolve identified coastal problems; and
5-14 (2) making all coastal management processes more
5-15 visible, accessible, coherent, consistent, and accountable to the
5-16 people of Texas.
5-17 SECTION 4. Subchapter F, Chapter 33, Natural Resources Code,
5-18 is amended by amending Sections 33.203, 33.204, 33.205, 33.206,
5-19 33.207, and 33.208, and adding Sections 33.2051, 33.2052, 33.2053,
5-20 33.209, and 33.210 to read as follows:
5-21 Sec. 33.203. DEFINITIONS. In this subchapter:
5-22 (1) "Coastal natural resource areas" means:
5-23 (A) coastal barriers;
5-24 (B) coastal historic areas;
5-25 (C) coastal preserves;
5-26 (D) coastal shore areas;
5-27 (E) coastal wetlands;
6-1 (F) critical dune areas;
6-2 (G) critical erosion areas;
6-3 (H) gulf beaches;
6-4 (I) hard substrate reefs;
6-5 (J) oyster reefs;
6-6 (K) submerged land;
6-7 (L) special hazard areas;
6-8 (M) submerged aquatic vegetation;
6-9 (N) tidal sand or mud flats;
6-10 (O) water of the open Gulf of Mexico; and
6-11 (P) water under tidal influence <areas
6-12 designated in the coastal management plan as requiring special
6-13 management, including coastal public submerged lands, public
6-14 beaches, washover areas on peninsulas, mainland shorelines, and
6-15 barrier islands, protected sand dune complexes on the Gulf
6-16 shoreline, and parks, historic areas, wildlife refuges, preserves,
6-17 and other such natural resource management areas located within the
6-18 coastal area and designated in the coastal management plan>.
6-19 (2) "Coastal barrier" means an undeveloped area on a
6-20 barrier island, peninsula, or other protected area, as designated
6-21 by United States Fish and Wildlife Service maps.
6-22 (3) "Coastal historic area" means a site that is
6-23 specially identified in rules adopted by the Texas Historical
6-24 Commission or the Antiquities Committee as being coastal in
6-25 character and that is:
6-26 (A) a site on the National Register of Historic
6-27 Places, designated under 16 U.S.C. Section 470a and Part 63,
7-1 Chapter 1, Title 36, Code of Federal Regulations; or
7-2 (B) a state archaeological landmark, as defined
7-3 by Subchapter D, Chapter 191, of this code.
7-4 (4) "Coastal preserve" means any land, including a
7-5 park or wildlife management area, that is owned by the state and
7-6 that is:
7-7 (A) subject to Chapter 26, Parks and Wildlife
7-8 Code, because it is a park, recreation area, scientific area,
7-9 wildlife refuge, or historic site; and
7-10 (B) designated by the Texas Parks and Wildlife
7-11 Commission as being coastal in character.
7-12 (5) "Coastal shore area" means an area within 100 feet
7-13 landward of the highwater mark on submerged land.
7-14 (6) "Coastal waters" means waters under tidal
7-15 influence and waters of the open Gulf of Mexico.
7-16 (7) "Coastal wetlands" means wetlands, as the term is
7-17 defined by Section 11.502, Water Code, located:
7-18 (A) seaward of the coastal facility designation
7-19 line established by rules adopted under Chapter 40 of this code;
7-20 (B) within rivers and streams, to the extent of
7-21 tidal influence, as shown on the Texas Natural Resource
7-22 Conservation Commission's stream segment maps;
7-23 (C) within one mile of the mean high tide of the
7-24 portion of river and stream described by Paragraph (B) of this
7-25 subdivision, except as provided by Paragraphs (D) and (E) of this
7-26 subdivision;
7-27 (D) in the case of wetlands bordering the
8-1 portion of the Trinity River described by Paragraph (B) of this
8-2 subdivision:
8-3 (i) within the area located between the
8-4 mean high tide line on the western shoreline of that portion of the
8-5 river and Farm-to-Market Road 565 and Farm-to-Market Road 1409; or
8-6 (ii) within the area located between the
8-7 mean high tide line on the eastern shoreline of that portion of the
8-8 river and Farm-to-Market Road 563; or
8-9 (E) in the case of wetlands bordering the
8-10 portion of the Neches River described by Paragraph (B) of this
8-11 subdivision:
8-12 (i) within one mile from the mean high
8-13 tide line of the western shoreline of that portion of the river
8-14 described by Paragraph (B) of this subdivision; or
8-15 (ii) within the area located between the
8-16 mean high tide line on the eastern shoreline of that portion of the
8-17 river and Farm-to-Market Road 105.
8-18 (8) "Critical area" means a coastal wetland, an oyster
8-19 reef, a hard substrate reef, submerged aquatic vegetation, or a
8-20 tidal sand or mud flat.
8-21 (9) "Critical dune area" means a protected sand dune
8-22 complex on the Gulf shoreline within 1,000 feet of mean high tide
8-23 designated by the land commissioner under Section 63.121 of this
8-24 code.
8-25 (10) "Critical erosion area" means an area designated
8-26 by the land commissioner under Section 33.601(b) of this code.
8-27 (11) "Gulf beach" means a beach bordering the Gulf of
9-1 Mexico that is:
9-2 (A) located inland from the mean low tide line
9-3 to the natural line of vegetation bordering the seaward shore of
9-4 the Gulf of Mexico; or
9-5 (B) part of a contiguous beach area to which the
9-6 public has a right of use or easement:
9-7 (i) continuously held by the public; or
9-8 (ii) acquired by the public by
9-9 prescription, dedication, or estoppel.
9-10 (12) "Hard substrate reef" means a naturally occurring
9-11 hard substrate formation, including a rock outcrop or serpulid worm
9-12 reef, living or dead, in an intertidal or subtidal area.
9-13 (13) "Oyster reef" means a natural or artificial
9-14 formation that is:
9-15 (A) composed of oyster shell, live oysters, and
9-16 other living or dead organisms;
9-17 (B) discrete, contiguous, and clearly
9-18 distinguishable from scattered oyster shell or oysters; and
9-19 (C) located in an intertidal or subtidal area.
9-20 (14) "Special hazard area" means an area designated
9-21 under 42 U.S.C. Section 4001 et seq. as having special flood,
9-22 mudslide or mudflow, or flood-related erosion hazards and shown on
9-23 a flood hazard boundary map or flood insurance rate map as Zone A,
9-24 AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M, or E.
9-25 (15) "Submerged land" means land located under waters
9-26 under tidal influence or under waters of the open Gulf of Mexico,
9-27 without regard to whether the land is owned by the state or a
10-1 person other than the state.
10-2 (16) "Submerged aquatic vegetation" means rooted
10-3 aquatic vegetation growing in permanently inundated areas in
10-4 estuarine and marine systems.
10-5 (17) "Tidal sand or mud flat" means a silt, clay, or
10-6 sand substrate, without regard to whether it is vegetated by algal
10-7 mats, that occur in intertidal areas and that are regularly or
10-8 intermittently exposed and flooded by tides, including tides
10-9 induced by weather.
10-10 (18) "Water of the open Gulf of Mexico" means water in
10-11 this state, as defined by Section 26.001(5), Water Code, that is
10-12 part of the open water of the Gulf of Mexico and that is within the
10-13 territorial limits of the state.
10-14 (19) "Water under tidal influence" means water in this
10-15 state, as defined by Section 26.001(5), Water Code, that is subject
10-16 to tidal influence according to the Texas Natural Resource
10-17 Conservation Commission's stream segment map. The term includes
10-18 coastal wetlands.
10-19 (20) "Council" means the Coastal Coordination Council,
10-20 which shall consist of the commissioner, <the attorney general,>
10-21 the chair of the Parks and Wildlife Commission or a member of the
10-22 commission designated by the chair, the chair of the Texas Natural
10-23 Resource Conservation <Water> Commission or a member of the
10-24 commission designated by the chair, a member of the Railroad
10-25 Commission of Texas appointed by that commission, the chair of the
10-26 Texas Water Development Board or a member of the board designated
10-27 by the chair, the chair of the Texas Transportation Commission or a
11-1 member of the commission designated by the chair, a member of the
11-2 State Soil and Water Conservation Board appointed by that board,
11-3 and one city or county elected official who resides in the coastal
11-4 area, one owner of a business located in the coastal area who
11-5 resides in the coastal area, <and> one resident from the coastal
11-6 area, and a representative of agriculture, each appointed by the
11-7 governor with the advice and consent of the senate for two-year
11-8 terms.
11-9 (21) <(3)> "Agency or subdivision" means any state
11-10 agency, department, board, or commission or political subdivision
11-11 of the state<, subdivision, body politic, or other government
11-12 entity or unit>.
11-13 (22) <(4)> "Coastal management program <plan>" means
11-14 an ongoing, comprehensive program containing the elements required
11-15 for approval of a program under the Coastal Zone Management Act of
11-16 1972 (16 U.S.C. Section 1451 et seq.) that is designed to
11-17 coordinate agencies' management of activities that may adversely
11-18 affect coastal natural resource areas for the purpose of
11-19 continually making management of those activities more efficient
11-20 and effective <the plan as developed by the commissioner under
11-21 Section 33.052 of this code>.
11-22 (23) "Agency or subdivision action" means an action
11-23 described by Section 33.2051 or 33.2053 of this code.
11-24 (24) "Federal agency activity" means a function
11-25 performed by or for a federal agency in the exercise of its
11-26 statutory responsibility, including financial assistance, the
11-27 planning, construction, modification, or removal of a public work,
12-1 facility, or any other structure, and the acquisition, use, or
12-2 disposal of land or water resources. The term does not include the
12-3 issuance of a federal license or permit.
12-4 (25) "Federal agency action" means a license or permit
12-5 that a federal agency may issue that represents the proposed
12-6 federal authorization, approval, or certification needed by the
12-7 applicant to begin an activity.
12-8 (26) "Proposed action" means an agency or subdivision
12-9 action under consideration by the agency or subdivision, but with
12-10 respect to which the agency or subdivision has not made a final
12-11 decision.
12-12 (27) "Outer continental shelf plan" means a plan for
12-13 the exploration or development of, or production from, an area
12-14 leased under the Outer Continental Shelf Lands Act (43 U.S.C.
12-15 Section 1331 et seq.) and the rules adopted under that Act that is
12-16 submitted to the secretary of the United States Department of the
12-17 Interior after federal approval of the coastal management program.
12-18 Sec. 33.204. ADMINISTRATION <ADOPTION> OF COASTAL MANAGEMENT
12-19 PROGRAM <GOALS AND POLICIES; REVIEW>. (a) The council by rule
12-20 shall adopt <promulgate rules adopting the> goals and policies of
12-21 the coastal management program. A goal or policy may not require
12-22 an agency or subdivision to perform an action that would exceed the
12-23 constitutional or statutory authority of the agency or subdivision
12-24 to which the goal or policy applies <plan and make studies of
12-25 problems and issues affecting the management of coastal natural
12-26 resource areas as provided in the plan>.
12-27 (b) The council shall meet once in each calendar quarter.
13-1 The commissioner is chair of the council and may convene special
13-2 meetings at other times. Except for adoption of the coastal
13-3 management program and placement of an item on the agenda, an
13-4 affirmative vote of two-thirds of the members of the council is
13-5 required for the council to act.
13-6 (c) For each matter to be reviewed by the council under
13-7 Section 33.205(c) or (d) <33.205> of this code, the governor shall
13-8 designate a local elected official from a county or municipality
13-9 directly affected by the matter under review. The local official
13-10 shall serve as a nonvoting participant on the council for purposes
13-11 of reviewing and acting on that matter only.
13-12 (d) <(c)> In conducting reviews under Section 33.205 of this
13-13 code, the council shall receive and consider the oral or written
13-14 testimony of any person regarding the goals and policies of the
13-15 coastal management program <plan>. The council may reasonably
13-16 limit the length and format of the testimony and the time at which
13-17 it will be received. Notice of the period during which the
13-18 testimony will be received shall be published in the Texas Register
13-19 and in a newspaper of general circulation in each county directly
13-20 affected by the matter under review before the commencement of that
13-21 period. The council shall consider only the record before the
13-22 agency or subdivision involved in the matter under review, the
13-23 agency's or subdivision's findings, applicable laws and rules, any
13-24 additional information provided by that agency or subdivision, and
13-25 public testimony under this subsection, provided that if the agency
13-26 or subdivision did not hold a hearing, make a record, or make
13-27 findings, the council may hold a hearing and make findings
14-1 necessary to a complete and thorough review.
14-2 (e) <(d)> The land office shall assist the council in
14-3 carrying out its duties. The council members may <shall> not
14-4 receive compensation for services but may receive reimbursement for
14-5 actual and necessary expenses. The land office, in coordination
14-6 with other agencies and subdivisions, shall prepare an annual
14-7 report on the effectiveness of the coastal management program. The
14-8 land office shall submit the report to the council for approval.
14-9 On or before January 15 of each odd-numbered year, the land office
14-10 shall send to the legislature each of the previous two annual
14-11 reports.
14-12 Sec. 33.205. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM;
14-13 COUNCIL <STANDARDS; SUBMISSION FOR> REVIEW. (a) An agency or
14-14 subdivision that takes an agency or subdivision action described by
14-15 Section 33.2051 or 33.2053 of this code <All actions taken or
14-16 authorized by state agencies and subdivisions> that may adversely
14-17 affect a coastal natural resource area shall <areas, including
14-18 discharges and withdrawals that may significantly affect water
14-19 quality in state waters subject to tidal influence, must> comply
14-20 with the goals and policies of the coastal management program.
14-21 (b) An agency or subdivision subject to the requirements of
14-22 Subsection (a) of this section <plan. In developing rules and
14-23 policies applicable in coastal areas and performing actions subject
14-24 to the requirements of this subsection, state agencies and
14-25 subdivisions> shall affirm that it has taken <take> into account
14-26 the goals and policies of the coastal management program by issuing
14-27 a written determination that a proposed action described by Section
15-1 33.2051 or 33.2053 of this code is consistent with the program
15-2 goals and policies <plan>.
15-3 (c) <(b)> The council may not <shall> review a proposed
15-4 <any> action subject to the requirements of Subsections
15-5 <Subsection> (a) and (b) of this section for consistency with the
15-6 goals and policies of the coastal management program unless:
15-7 (1) the consistency determination for the proposed
15-8 action was contested by:
15-9 (A) a council member or an agency that was a
15-10 party in a formal hearing under Chapter 2001, Government Code, or
15-11 in an alternative dispute resolution process; or
15-12 (B) a council member or other person by the
15-13 filing of written comments with the agency before the action was
15-14 proposed if the proposed action is one for which a formal hearing
15-15 under Chapter 2001, Government Code, is not available;
15-16 (2) a person described by Subdivision (1) of this
15-17 subsection files a request for referral alleging a significant
15-18 unresolved dispute regarding the proposed action's consistency with
15-19 the goals and policies of the coastal management program; and
15-20 (3) <that the commissioner submits to the council for
15-21 review. The council shall review any action subject to the
15-22 requirements of Subsection (a) of this section that is submitted to
15-23 the council by> any three regular members of the council agree that
15-24 there is a significant unresolved dispute regarding the proposed
15-25 action's consistency with the goals and policies of the coastal
15-26 management program and the matter is placed on the agenda for a
15-27 council meeting<.>
16-1 <(c) An action must be referred to the council within 30
16-2 days of the date it becomes final>.
16-3 (d) If consistency review thresholds are in effect under
16-4 Section 33.2052 of this code, the council may not review a proposed
16-5 action subject to the requirements of Subsections (a) and (b) of
16-6 this section for consistency with the goals and policies of the
16-7 coastal management program unless the requirements of Subsection
16-8 (c) of this section are satisfied and:
16-9 (1) if the proposed action is one for which a formal
16-10 hearing under Chapter 2001, Government Code, is available:
16-11 (A) the action exceeds the applicable thresholds
16-12 and the agency's consistency determination was contested in a
16-13 formal hearing or in an alternative dispute resolution process; or
16-14 (B) the action does not exceed the applicable
16-15 thresholds but may directly and adversely affect a critical area,
16-16 critical dune area, coastal park, wildlife management area or
16-17 preserve, or gulf beach and a state agency contested the agency's
16-18 consistency determination in a formal hearing; or
16-19 (2) if the proposed action is one for which a formal
16-20 hearing under Chapter 2001, Government Code, is not available to
16-21 contest the agency's determination, the action exceeds the
16-22 applicable thresholds.
16-23 (e) The council must consider and act on a matter referred
16-24 under Subsection (c) or (d) of this section before the 26th day
16-25 after the date the agency or subdivision proposed the action. For
16-26 purposes of this section, an action subject to the contested case
16-27 provisions of Chapter 2001, Government Code, is proposed when
17-1 notice of a decision or order is issued under Section 2001.142,
17-2 Government Code <the matter within 90 days of referral>.
17-3 (f) The council by rule shall establish a process by which
17-4 an applicant for a permit or other proposed action described in
17-5 Section 33.2053 of this code, or an agency or subdivision proposing
17-6 an action, may request and receive a preliminary consistency
17-7 review. The rules shall:
17-8 (1) create a permitting assistance group composed of
17-9 representatives of council member agencies and other interested
17-10 council members to coordinate the preliminary reviews; and
17-11 (2) require that the following written information be
17-12 produced not later than the 45th day after the date of the request
17-13 for preliminary review:
17-14 (A) a statement from each agency or subdivision
17-15 required to permit or approve the project as to whether the agency
17-16 or subdivision anticipates approving or denying the application;
17-17 (B) if an agency or subdivision intends to deny
17-18 an application, the agency's or subdivision's explanation of the
17-19 grounds for denial and recommendations for resolving the grounds in
17-20 a way that would allow the application to be approved;
17-21 (C) if enough information is already available,
17-22 a preliminary finding as to whether the project is likely to be
17-23 found consistent with the goals and policies of the coastal
17-24 management program; and
17-25 (D) if the project is likely to be found
17-26 inconsistent with the goals and policies of the coastal management
17-27 program, an explanation and recommendation for resolving the
18-1 inconsistency in a way that would allow the project to be found
18-2 consistent.
18-3 (g) The council by rule shall establish a process by which
18-4 an individual or small business may request and receive assistance
18-5 with filing applications for permits or other proposed actions
18-6 described by Section 33.2053 of this code. The rules shall provide
18-7 for:
18-8 (1) the coordination of preapplication assistance
18-9 through the permitting assistance group; and
18-10 (2) the provision of the following, by the permitting
18-11 assistance group, to an individual or a small business, on request:
18-12 (A) a list of the permits or other approvals
18-13 necessary for the project;
18-14 (B) a simple, understandable statement of all
18-15 permit requirements;
18-16 (C) a coordinated schedule for each agency's or
18-17 subdivision's decision on the action;
18-18 (D) a list of all the information the agencies
18-19 or subdivisions need to declare the applications for the permits or
18-20 other approvals administratively complete;
18-21 (E) assistance in completing the applications as
18-22 needed; and
18-23 (F) if enough information is already available,
18-24 a preliminary finding as to whether the project is likely to be
18-25 found consistent with the goals and policies of the coastal
18-26 management program.
18-27 (h) If an agency, subdivision, or applicant has received a
19-1 preliminary finding of consistency under Subsection (f)(2)(C) or
19-2 (g)(2)(F) and a request for referral was filed on that action under
19-3 Subsection (c)(2), the council may accept the request for referral
19-4 only if the agency or subdivision has substantially changed the
19-5 permit or proposed action since the preliminary finding was issued.
19-6 Sec. 33.2051. AGENCY RULE-MAKING ACTIONS. (a) The land
19-7 office shall comply with Sections 33.205(a) and (b) when adopting
19-8 or amending a rule governing the prevention of, response to, or
19-9 remediation of a coastal oil spill.
19-10 (b) The Texas Natural Resource Conservation Commission shall
19-11 comply with Sections 33.205(a) and (b) when adopting or amending a
19-12 rule governing:
19-13 (1) air pollutant emissions;
19-14 (2) on-site sewage disposal systems; or
19-15 (3) underground storage tanks.
19-16 (c) The State Soil and Water Conservation Board shall comply
19-17 with Sections 33.205(a) and (b) when adopting or amending a rule
19-18 governing agricultural or silvicultural nonpoint source pollution.
19-19 (d) An agency shall comply with Sections 33.205(a) and (b)
19-20 when adopting or amending a rule governing an individual action
19-21 described by Section 33.2053.
19-22 (e) The council may not review a proposed rule of the Texas
19-23 Department of Agriculture.
19-24 Sec. 33.2052. CERTIFICATION OF AGENCY RULES; AGENCY ACTIONS
19-25 CONSIDERED CONSISTENT. (a) The council by rule shall establish a
19-26 process by which an agency may submit rules and rule amendments
19-27 described by Section 33.2051 to the council for review and
20-1 certification for consistency with the goals and policies of the
20-2 coastal management program.
20-3 (b) The process must provide that an agency may submit to
20-4 the council consistency review thresholds for the agency's actions
20-5 described in Section 33.2053. After the council certifies that an
20-6 agency's rules are consistent and approves the agency's thresholds,
20-7 the agency's consistency determination under Section 33.205(b) for
20-8 an action is final and is not subject to referral and review,
20-9 except as provided by Section 33.205(d).
20-10 (c) The council by rule shall provide that the council may
20-11 revoke its certification under Subsection (b) if the council finds
20-12 that an agency has:
20-13 (1) implemented certified rules in a manner that
20-14 conflicts with the goals and policies of the coastal management
20-15 program; or
20-16 (2) amended certified rules in a manner inconsistent
20-17 with the goals and policies of the coastal management program.
20-18 Sec. 33.2053. INDIVIDUAL AGENCY OR SUBDIVISION ACTIONS. (a)
20-19 The land office, the School Land Board, or a board for lease of
20-20 state-owned lands shall comply with Sections 33.205(a) and (b) when
20-21 issuing or approving:
20-22 (1) a mineral lease plan of operations;
20-23 (2) a geophysical or geochemical permit;
20-24 (3) a coastal easement;
20-25 (4) a miscellaneous easement;
20-26 (5) a coastal lease;
20-27 (6) a surface lease;
21-1 (7) a structure registration;
21-2 (8) a cabin permit;
21-3 (9) a navigation district lease;
21-4 (10) certification of a local government beach access
21-5 or dune protection plan; or
21-6 (11) an agency or subdivision wetlands mitigation
21-7 bank.
21-8 (b) The Public Utility Commission shall comply with Sections
21-9 33.205(a) and (b) when issuing a certificate of convenience and
21-10 necessity.
21-11 (c) The Railroad Commission of Texas shall comply with
21-12 Sections 33.205(a) and (b) when issuing:
21-13 (1) a wastewater discharge permit;
21-14 (2) a waste disposal or storage pit permit; or
21-15 (3) a certification of a federal permit for the
21-16 discharge of dredge or fill material.
21-17 (d) The Texas Transportation Commission shall comply with
21-18 Sections 33.205(a) and (b) when approving:
21-19 (1) an acquisition of a site for the placement or
21-20 disposal of dredge material from, or the expansion, relocation, or
21-21 alteration of, the Gulf Intracoastal Waterway; or
21-22 (2) a transportation construction project or
21-23 maintenance program.
21-24 (e) The Texas Historical Commission and the Texas
21-25 Antiquities Committee shall comply with Sections 33.205(a) and (b)
21-26 when issuing:
21-27 (1) a permit for destruction, alteration, or taking of
22-1 a coastal historic area; or
22-2 (2) a review of a federal undertaking affecting a
22-3 coastal historic area.
22-4 (f) The Texas Natural Resource Conservation Commission shall
22-5 comply with Sections 33.205(a) and (b) when issuing or approving:
22-6 (1) a wastewater discharge permit;
22-7 (2) a permit for a new concentrated animal feeding
22-8 operation located one mile or less from a critical area or coastal
22-9 waters;
22-10 (3) a permit for solid or hazardous waste treatment,
22-11 storage, or disposal;
22-12 (4) creation of a special purpose district or approval
22-13 of bonds for the purpose of construction of infrastructure on
22-14 coastal barriers;
22-15 (5) levee improvement or flood control projects;
22-16 (6) a certification of a federal permit for the
22-17 discharge of dredge or fill material;
22-18 (7) a declaration of an emergency and request for an
22-19 emergency release of water;
22-20 (8) a new permit for an annual appropriation of:
22-21 (A) 5,000 or more acre-feet of water within the
22-22 program boundary; or
22-23 (B) 10,000 or more acre-feet of water outside
22-24 the program boundary but within 200 stream miles of the coast;
22-25 (9) an amendment to a water permit for an increase in
22-26 an annual appropriation of:
22-27 (A) 5,000 or more acre-feet of water within the
23-1 program boundary; or
23-2 (B) 10,000 or more acre-feet of water outside
23-3 the program boundary but within 200 stream miles of the coast; or
23-4 (10) a change in the purpose of use of an annual
23-5 appropriation of water to a more consumptive use of:
23-6 (A) 5,000 or more acre-feet of water within the
23-7 program boundary; or
23-8 (B) 10,000 or more acre-feet of water outside
23-9 the program boundary but within 200 stream miles of the coast.
23-10 (g) The council may not review an action of the Texas
23-11 Natural Resource Conservation Commission described by Subsections
23-12 (f)(8)-(10) taken to implement a part of the Trans-Texas Water
23-13 Program that the Trans-Texas Water Program Policy Management
23-14 Committee has found to be consistent with the goals and policies of
23-15 the coastal management program. To find that the program is
23-16 consistent with the goals and policies, the Trans-Texas Water
23-17 Program Policy Management Committee must:
23-18 (1) include at least three members of the council, or
23-19 representatives of those members, as voting members of the
23-20 committee; and
23-21 (2) make the finding by a majority vote of those
23-22 members or their representatives.
23-23 (h) The Parks and Wildlife Department shall comply with
23-24 Sections 33.205(a) and (b) when issuing or approving:
23-25 (1) an oyster lease;
23-26 (2) a permit for taking, transporting, or possessing
23-27 threatened or endangered species;
24-1 (3) a permit for disturbing marl, sand, shell, or
24-2 gravel on state-owned land; or
24-3 (4) development by a person other than the Parks and
24-4 Wildlife Department that requires the use or taking of any public
24-5 land in a state park, wildlife management area, or preserve.
24-6 (i) A subdivision shall comply with Sections 33.205(a) and
24-7 (b) when issuing a dune protection permit or beachfront
24-8 construction certificate that authorizes:
24-9 (1) construction activity that is located 200 feet or
24-10 less landward of the line of vegetation and that results in the
24-11 disturbance of more than 7,000 square feet of dunes or dune
24-12 vegetation;
24-13 (2) construction activity that results in the
24-14 disturbance of more than 7,500 cubic yards of dunes;
24-15 (3) a coastal shore protection project undertaken on a
24-16 gulf beach or 200 feet or less landward of the line of vegetation
24-17 and that affects more than 500 linear feet of gulf beach; or
24-18 (4) a closure, relocation, or reduction in existing
24-19 public beach access or public beach access designated in an
24-20 approved local government beach access plan, other than for a short
24-21 term.
24-22 (j) An action to renew, amend, or modify an existing permit,
24-23 certificate, lease, easement, approval, or other action is not an
24-24 action under this section if the action is taken under a rule that
24-25 the council has certified under Section 33.2052 and:
24-26 (1) for a wastewater discharge permit, if the action
24-27 is not a major permit modification that would:
25-1 (A) increase pollutant loads to coastal waters;
25-2 or
25-3 (B) result in relocation of an outfall to a
25-4 critical area;
25-5 (2) for solid, hazardous, or nonhazardous waste
25-6 permits, if the action is not a Class III modification under rules
25-7 of the Texas Natural Resource Conservation Commission; or
25-8 (3) for any other action, if the action:
25-9 (A) only extends the period of the existing
25-10 authorization and does not authorize new or additional work or
25-11 activity; or
25-12 (B) is not directly relevant to Sections
25-13 33.205(a) and (b).
25-14 (k) The council shall establish a program boundary to limit
25-15 the geographic area in which the requirements of Sections 33.205(a)
25-16 and (b) apply. The boundary is the coastal facility designation
25-17 line as defined by Appendix 1 to 31 Tex. Admin. Code Section 19.2
25-18 as that appendix existed on the effective date of this section, as
25-19 modified by Section 33.203(7). Except as provided by Subsections
25-20 (f)(8)-(10), this subchapter does not apply to an agency action
25-21 authorizing an activity outside the program boundary.
25-22 Sec. 33.206. COUNCIL ACTION. (a) A proposed action is
25-23 consistent with the goals and policies of the coastal management
25-24 program and approved by the council unless, on the affirmative vote
25-25 of at least two-thirds of the members of the council, the council
25-26 determines the action to be inconsistent with the coastal
25-27 management program and protests <After reviewing an action of a
26-1 state agency or subdivision, the council may affirm or protest> the
26-2 action <of the state agency or subdivision>.
26-3 (b) If the council protests the proposed action, the council
26-4 shall report its findings on <remand> the matter to the <state>
26-5 agency or subdivision. The report <remand> shall specify how the
26-6 proposed action is inconsistent <include findings on
26-7 inconsistencies> with the goals and policies of the coastal
26-8 management program <plan> and <may> include specific
26-9 recommendations of the council regarding how the proposed action
26-10 may be modified or amended to make it consistent with the program.
26-11 Before the 21st day after the date the agency or subdivision
26-12 receives the report, the<. On remand, the state> agency or
26-13 subdivision shall review the findings and recommendations and
26-14 determine whether to modify or amend the proposed action to make it
26-15 consistent with the goals and policies of the coastal management
26-16 program and <plan. Should the agency or subdivision decide not to
26-17 amend its action as recommended by the council, it> shall notify
26-18 the council of its <that> decision.
26-19 (c) If an agency or subdivision does not modify or amend a
26-20 proposed action to be consistent with the goals and policies of the
26-21 coastal management program, the council shall request the attorney
26-22 general to issue an opinion on the consistency of the proposed
26-23 action with the coastal management program. The agency or
26-24 subdivision is stayed from taking the proposed action until the
26-25 attorney general issues the opinion. The attorney general shall
26-26 issue an opinion before the 26th day after the date the council
26-27 requests the opinion <The state agency's or subdivision's action on
27-1 remand is subject to review by the council as provided in Section
27-2 33.205 of this code. The only basis on which the council may
27-3 reverse a decision of an agency or subdivision is that the action
27-4 is inconsistent with the goals and policies of the coastal
27-5 management plan>.
27-6 (d) The council shall adopt procedural rules for the review
27-7 of federal actions, activities, and outer continental shelf plans
27-8 that incorporate the provisions of federal regulations governing
27-9 those reviews. The rules shall provide that the chair or any three
27-10 members may request additional information from a federal agency or
27-11 additional time for review as provided by the federal regulations.
27-12 (e) The council shall review any federal action, activity,
27-13 or outer continental shelf plan that any three members of the
27-14 council agree presents a significant unresolved issue regarding
27-15 consistency with the goals and policies of the coastal management
27-16 program and place the matter on the agenda of a meeting of <the
27-17 commissioner submits to> the council for review.
27-18 (f) If an activity requiring an agency or subdivision action
27-19 described by Section 33.2053 that falls below thresholds in effect
27-20 under Section 33.2052 also requires an equivalent federal permit or
27-21 license, the council may only determine the agency or subdivision
27-22 action's consistency. If an activity requiring an agency or
27-23 subdivision action above thresholds requires an equivalent federal
27-24 permit or license, the council may determine the consistency of the
27-25 agency or subdivision action or the federal license or permit, but
27-26 not both. The determination regarding the consistency of an action
27-27 made by the council under this subsection constitutes the state's
28-1 determination regarding consistency of the equivalent agency or
28-2 subdivision action or federal action.
28-3 (g) If, after review, the council finds a proposed federal
28-4 agency action or activity or outer continental shelf plan is
28-5 inconsistent with <does not comply with goals and policies of> the
28-6 coastal management program <plan>, and the federal agency does not
28-7 modify the action, activity, or outer continental shelf plan to
28-8 achieve consistency with the program, the governor, with the
28-9 assistance of the chair of the council, may seek mediation of the
28-10 matter in accordance with federal law <refer the matter to any
28-11 federal official authorized to review or act on the matter and may
28-12 pursue resolution of the matter with the federal official>.
28-13 (h) The council may not protest a proposed action by an
28-14 agency or subdivision pertaining to an application filed with that
28-15 agency or subdivision before the date the coastal management
28-16 program is adopted.
28-17 Sec. 33.207. COUNCIL RECOMMENDATIONS. In addition to the
28-18 report required by Section 33.206, the council:
28-19 (1) may periodically submit recommendations to an
28-20 agency or subdivision designed to encourage the agency or
28-21 subdivision to carry out its functions in a manner consistent with
28-22 the coastal management program, including recommendations for
28-23 methods to simplify governmental procedures and changes in
28-24 applicable rules or statutes; and
28-25 (2) shall report to the legislature on:
28-26 (A) recommended statutory changes needed to make
28-27 more effective and efficient use of public funds and provide for
29-1 more effective and efficient management of coastal natural resource
29-2 areas, including recommendations on methods to simplify
29-3 governmental procedures; and
29-4 (B) agency or subdivision actions that are not
29-5 consistent with the coastal management program. <JUDICIAL REVIEW.
29-6 A person aggrieved by a final action of the council may appeal to a
29-7 district court under the Administrative Procedure and Texas
29-8 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).>
29-9 Sec. 33.208. ENFORCEMENT. (a) The agency or subdivision
29-10 with jurisdiction over a proposed action shall enforce the
29-11 provisions of the coastal management program.
29-12 (b) If the attorney general issues an opinion under Section
29-13 33.206(c) that a proposed agency or subdivision action is
29-14 inconsistent with the coastal management program and the agency or
29-15 subdivision fails to implement the council's recommendation
29-16 regarding the action, the <The> attorney general<, at the request
29-17 of the council,> shall file suit in a district court of Travis
29-18 County <or in the county in which the violation occurs a suit> to
29-19 enforce this subchapter. The court shall consider the attorney
29-20 general's opinion in determining whether the proposed action is
29-21 consistent with the coastal management program.
29-22 (c) Notwithstanding the request of an opinion from, or the
29-23 filing of suit by, the attorney general, the council and the agency
29-24 or subdivision may enter into a settlement agreement with regard to
29-25 the proposed action. If the council and the agency or subdivision
29-26 enter into a settlement agreement, the council may rescind its
29-27 request for an opinion from the attorney general.
30-1 Sec. 33.209. PRIVATE PROPERTY. The requirements of this
30-2 subchapter may not be applied in a manner that would result in the
30-3 taking, damage, or destruction of property without adequate
30-4 compensation.
30-5 Sec. 33.210. SUNSET PROVISION. The Coastal Coordination
30-6 Council is subject to Chapter 325, Government Code (Texas Sunset
30-7 Act). Unless continued in existence as provided by that chapter,
30-8 the council is abolished and this subchapter expires September 1,
30-9 1999.
30-10 SECTION 5. The governor shall appoint an owner of a business
30-11 located in the coastal area who resides in the coastal area and a
30-12 representative of agriculture to the Coastal Coordination Council
30-13 for terms beginning February 1, 1996. Both appointments are
30-14 subject to confirmation by the Senate of the 75th Legislature. A
30-15 council member appointed by the governor before the convening of
30-16 the 74th Legislature shall serve the remainder of the member's term
30-17 without regard to whether the member is confirmed by the senate.
30-18 SECTION 6. If the secretary of the United States Department
30-19 of Commerce and the administrator of the United States
30-20 Environmental Protection Agency find Texas has failed to submit an
30-21 approvable coastal nonpoint pollution control program as required
30-22 by 16 U.S.C. Section 1455b, which would result in the withholding
30-23 of money under 16 U.S.C. Sections 1455b(c)(3) and (4), the governor
30-24 shall withdraw any coastal management program developed under
30-25 Chapter 33, Natural Resources Code, that has been:
30-26 (1) approved by the secretary of the United States
30-27 Department of Commerce; or
31-1 (2) submitted to the secretary of the United States
31-2 Department of Commerce for approval under 16 U.S.C. Section 1455.
31-3 SECTION 7. The importance of this legislation and the
31-4 crowded condition of the calendars in both houses create an
31-5 emergency and an imperative public necessity that the
31-6 constitutional rule requiring bills to be read on three several
31-7 days in each house be suspended, and this rule is hereby suspended,
31-8 and that this Act take effect and be in force from and after its
31-9 passage, and it is so enacted.