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.