By Berlanga, Holzheauser, Saunders H.B. No. 3226
74R11339 SMH-F
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(1) 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 33.001 of this code. The program is not effective until
2-2 approved by a majority of the council under Section 33.204 of this
2-3 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 plan shall implement the policies stated in Section 33.001 of this
2-14 code and shall include the elements listed in Section 33.053 of
2-15 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 (f) <(g)> The land office shall, on September 1 of
3-15 even-numbered years, present a biennial report to the legislature
3-16 outlining the status of coastal problems, issues, and programs. The
3-17 report must be approved by the council before the report is
3-18 presented to the legislature.
3-19 Sec. 33.053. Elements of Coastal Management Program. (a)
3-20 The coastal management program must include the elements required
3-21 by<, in compliance with> the Coastal Zone Management Act of 1972
3-22 (16 U.S.C. Section 1451 et seq.)<, shall include the following
3-23 elements:>
3-24 <(1) a continuous inventory of coastal public land and
3-25 water resources including a determination of the extent and
3-26 location of the coastal public land;>
3-27 <(2) a continuous analysis of the potential uses for
4-1 which the coastal public land and water might be used, including
4-2 recommendations as to which configurations of uses consonant with
4-3 the policies of this chapter maximize the benefits conferred on the
4-4 present and future citizens of Texas;>
4-5 <(3) guidelines on the priority of uses in coastal
4-6 public land within the coastal area, including specifically those
4-7 uses of lowest priority;>
4-8 <(4) a definition of the permissible uses of the
4-9 coastal public land and water and definitions of the uses of
4-10 adjacent areas which would have a significant adverse impact on the
4-11 management or use of coastal public land or water;>
4-12 <(5) recommendations as to increments of jurisdiction
4-13 or authority necessary to protect coastal public land and water
4-14 from adverse consequences flowing from the uses of adjacent land;>
4-15 <(6) an inventory of endangered environments and
4-16 resources in the coastal public land; and>
4-17 <(7) recommendations for any changes necessary in the
4-18 organizational structure by which the program is implemented and
4-19 administered>.
4-20 (b) The coastal management program must identify the
4-21 boundaries of the coastal zone subject to the program, which may
4-22 not be further inland than the coastal facility designation line as
4-23 defined by Appendix 1 to 31 Tex. Admin. Code Section 19.2 as that
4-24 appendix existed on the effective date of this section.
4-25 Sec. 33.055. PUBLIC HEARINGS TO CONSIDER COASTAL MANAGEMENT
4-26 PROGRAM. <(a)> In developing, reviewing, or amending the coastal
4-27 management program, after due notice to affected persons and the
5-1 public generally, the commissioner and the council shall hold or
5-2 have held public hearings as the commissioner and the council
5-3 determine <determines> to be appropriate.
5-4 <(b) In reviewing or amending the management program, the
5-5 commissioner may hold or have held public hearings in the manner
5-6 provided in Subsection (a) of this section.>
5-7 SECTION 3. Section 33.202(a), Natural Resources Code, is
5-8 amended to read as follows:
5-9 (a) It is declared to be the policy of this state to make
5-10 more effective and efficient use of public funds and provide for
5-11 more effective and efficient management of coastal natural resource
5-12 areas, and to better serve the people of Texas by:
5-13 (1) continually reviewing the principal coastal
5-14 problems of state concern, coordinating the performance of
5-15 agencies<, subdivisions,> and programs affecting coastal natural
5-16 resource areas, and <the> coordinating the measures required to
5-17 resolve identified coastal problems; and
5-18 (2) making all coastal management processes more
5-19 visible, accessible, coherent, consistent, and accountable to the
5-20 people of Texas.
5-21 SECTION 4. Subchapter F, Chapter 33, Natural Resources Code,
5-22 is amended by amending Sections 33.203, 33.204, 33.205, 33.206,
5-23 33.207, and 33.208, and adding Sections 33.2051, 33.2052, 33.2053,
5-24 33.209, 33.210, and 33.211 to read as follows:
5-25 Sec. 33.203. DEFINITIONS. In this subchapter:
5-26 (1) "Coastal natural resource areas" means:
5-27 (A) coastal barriers;
6-1 (B) coastal historic areas;
6-2 (C) coastal preserves;
6-3 (D) coastal shore areas;
6-4 (E) coastal wetlands;
6-5 (F) critical dune areas;
6-6 (G) critical erosion areas;
6-7 (H) gulf beaches;
6-8 (I) hard substrate reefs;
6-9 (J) serpulid worm reefs;
6-10 (K) oyster reefs;
6-11 (L) submerged land;
6-12 (M) special hazard areas;
6-13 (N) submerged aquatic vegetation;
6-14 (O) tidal sand or mud flats;
6-15 (P) water of the open Gulf of Mexico; and
6-16 (Q) water under tidal influence <areas
6-17 designated in the coastal management plan as requiring special
6-18 management, including coastal public submerged lands, public
6-19 beaches, washover areas on peninsulas, mainland shorelines, and
6-20 barrier islands, protected sand dune complexes on the Gulf
6-21 shoreline, and parks, historic areas, wildlife refuges, preserves,
6-22 and other such natural resource management areas located within the
6-23 coastal area and designated in the coastal management plan>.
6-24 (2) "Coastal barrier" means an undeveloped area on a
6-25 barrier island, peninsula, or other protected area, as designated
6-26 by United States Fish and Wildlife Service maps.
6-27 (3) "Coastal historic area" means a site that is
7-1 specially identified in rules adopted by the Texas Historical
7-2 Commission or the Antiquities Committee as being coastal in
7-3 character and that is:
7-4 (A) a site on the National Register of Historic
7-5 Places, designated under 16 U.S.C. Section 470a and Part 63,
7-6 Chapter 1, Title 36, Code of Federal Regulations; or
7-7 (B) a state archaeological landmark, as defined
7-8 by Subchapter D, Chapter 191, of this code.
7-9 (4) "Coastal preserve" means any land, including a
7-10 park or wildlife management area, that is owned by the state and
7-11 that is:
7-12 (A) subject to Chapter 26, Parks and Wildlife
7-13 Code, because it is a park, recreation area, scientific area,
7-14 wildlife refuge, or historic site; and
7-15 (B) designated by the Texas Parks and Wildlife
7-16 Commission as being coastal in character.
7-17 (5) "Coastal shore area" means an area within 100 feet
7-18 landward of the highwater mark on submerged land.
7-19 (6) "Coastal waters" means waters under tidal
7-20 influence and waters of the open Gulf of Mexico.
7-21 (7) "Coastal wetlands" means wetlands, as the term is
7-22 defined by Section 11.502, Water Code, located:
7-23 (A) seaward of the coastal facility designation
7-24 line established by rules adopted under Chapter 40 of this code;
7-25 (B) within rivers and streams, to the extent of
7-26 tidal influence, as shown on the Texas Natural Resource
7-27 Conservation Commission's stream segment maps;
8-1 (C) within one mile of the mean high tide of the
8-2 portion of river and stream described by Paragraph (B) of this
8-3 subdivision, except as provided by Paragraphs (D) and (E) of this
8-4 subdivision;
8-5 (D) in the case of wetlands bordering the
8-6 portion of the Trinity River described by Paragraph (B) of this
8-7 subdivision:
8-8 (i) within the area located between the
8-9 mean high tide line on the western shoreline of that portion of the
8-10 river and Farm-to-Market Road 565 and Farm-to-Market Road 1409; or
8-11 (ii) within the area located between the
8-12 mean high tide line on the eastern shoreline of that portion of the
8-13 river and Farm-to-Market Road 563; or
8-14 (E) in the case of wetlands bordering the
8-15 portion of the Neches River described by Paragraph (B) of this
8-16 subdivision:
8-17 (i) within one mile from the mean high
8-18 tide line of the western shoreline of that portion of the river
8-19 described by Paragraph (B) of this subdivision; or
8-20 (ii) within the area located between the
8-21 mean high tide line on the eastern shoreline of that portion of the
8-22 river and Farm-to-Market Road 105.
8-23 (8) "Critical area" means a coastal wetland, an oyster
8-24 reef, a hard substrate reef, submerged aquatic vegetation, or a
8-25 tidal sand or mud flat.
8-26 (9) "Critical dune area" means a protected sand dune
8-27 complex on the Gulf shoreline within 1,000 feet of mean high tide
9-1 designated by the land commissioner under Section 63.121 of this
9-2 code.
9-3 (10) "Critical erosion area" means an area designated
9-4 by the land commissioner under Section 33.601(b) of this code.
9-5 (11) "Gulf beach" means a beach bordering the Gulf of
9-6 Mexico that is:
9-7 (A) located inland from the mean low tide line
9-8 to the natural line of vegetation bordering the seaward shore of
9-9 the Gulf of Mexico; or
9-10 (B) part of a contiguous beach area to which the
9-11 public has a right of use or easement:
9-12 (i) continuously held by the public; or
9-13 (ii) acquired by the public by
9-14 prescription, dedication, or estoppel.
9-15 (12) "Serpulid worm reef" means a discrete and
9-16 contiguous serpulid worm reef located in an intertidal or subtidal
9-17 area, without regard to whether the reef is living or dead.
9-18 (13) "Oyster reef" means a natural or artificial
9-19 formation that is:
9-20 (A) composed of oyster shell, live oysters, and
9-21 other living or dead organisms;
9-22 (B) discrete, contiguous, and clearly
9-23 distinguishable from scattered oyster shell or oysters; and
9-24 (C) located in an intertidal or subtidal area.
9-25 (14) "Special hazard area" means an area designated
9-26 under 42 U.S.C. Section 4001 et seq. as having special flood,
9-27 mudslide or mudflow, or flood-related erosion hazards and shown on
10-1 a flood hazard boundary map or flood insurance rate map as Zone A,
10-2 AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M, or E.
10-3 (15) "Submerged land" means land located under waters
10-4 under tidal influence or under waters of the open Gulf of Mexico,
10-5 without regard to whether the land is owned by the state or a
10-6 person other than the state.
10-7 (16) "Submerged aquatic vegetation" means rooted
10-8 aquatic vegetation growing in permanently inundated areas in
10-9 estuarine and marine systems.
10-10 (17) "Tidal sand or mud flat" means a silt, clay, or
10-11 sand substrate, without regard to whether it is vegetated by algal
10-12 mats, that occur in intertidal areas and that are regularly or
10-13 intermittently exposed and flooded by tides, including tides
10-14 induced by weather.
10-15 (18) "Water of the open Gulf of Mexico" means water in
10-16 this state, as defined by Section 26.001(5), Water Code, that is
10-17 part of the open water of the Gulf of Mexico and that is within the
10-18 territorial limits of the state.
10-19 (19) "Water under tidal influence" means water in this
10-20 state, as defined by Section 26.001(5), Water Code, that is subject
10-21 to tidal influence according to the Texas Natural Resource
10-22 Conservation Commission's stream segment map. The term includes
10-23 coastal wetlands.
10-24 (20) "Council" means the Coastal Coordination Council,
10-25 which shall consist of the commissioner, <the attorney general,>
10-26 the chair of the Parks and Wildlife Commission, the chair of the
10-27 Texas Natural Resource Conservation <Water> Commission, a member of
11-1 the Railroad Commission of Texas appointed by that commission, the
11-2 chair of the Texas Water Development Board, the chair of the Texas
11-3 Transportation Commission, a member of the State Soil and Water
11-4 Conservation Board appointed by that board, and one city or county
11-5 elected official who resides in the coastal area, one owner of a
11-6 business located in the coastal area who resides in the coastal
11-7 area, <and> one resident from the coastal area, and a
11-8 representative of agriculture, each appointed by the governor with
11-9 the advice and consent of the senate for two-year terms.
11-10 (21) <(3)> "Agency <or subdivision>" means any state
11-11 agency, department, board, or commission<, subdivision, body
11-12 politic, or other government 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 action" means the adoption or amendment
11-23 of a rule, the issuance of a license or permit by an agency, and an
11-24 activity performed by or for an agency.
11-25 (24) "Federal agency activity" means a function
11-26 performed by or for a federal agency in the exercise of its
11-27 statutory responsibility, including planning, construction,
12-1 modification, or removal of a public work, facility, or any other
12-2 structure and the acquisition, use, or disposal of land or water
12-3 resources. The term does not include the issuance of a federal
12-4 license or permit or the granting of federal assistance to any
12-5 person or agency.
12-6 (25) "Federal agency action" means a license or permit
12-7 that a federal agency may issue that represents the final federal
12-8 authorization, approval, or certification needed by the applicant
12-9 to begin an activity.
12-10 (26) "Proposed action" means an agency action under
12-11 consideration by the agency, but with respect to which the agency
12-12 has not made a final decision.
12-13 (27) "Outer continental shelf plan" means a plan for
12-14 the exploration or development of, or production from, an area
12-15 leased under the Outer Continental Shelf Lands Act (43 U.S.C.
12-16 Section 1331 et seq.) and the rules adopted under that Act that is
12-17 submitted to the secretary of the United States Department of the
12-18 Interior after federal approval of the coastal management program.
12-19 Sec. 33.204. ADMINISTRATION <ADOPTION> OF COASTAL MANAGEMENT
12-20 PROGRAM <GOALS AND POLICIES; REVIEW>. (a) The council by rule
12-21 shall adopt <promulgate rules adopting the> goals and policies of
12-22 the coastal management program. A goal or policy may not require
12-23 an agency to perform an action that would exceed the constitutional
12-24 or statutory authority of the agency to which the goal or policy
12-25 applies <plan and make studies of problems and issues affecting the
12-26 management of coastal natural resource areas as provided in the
12-27 plan>.
13-1 (b) The council shall meet once in each calendar quarter.
13-2 The commissioner is chair of the council and may convene special
13-3 meetings at other times. Except for adoption of the coastal
13-4 management program and placement of an item on the agenda, an
13-5 affirmative vote of two-thirds of the members of the council is
13-6 required for the council to act.
13-7 (c) For each matter to be reviewed by the council under
13-8 Section 33.205(c) or (d) <33.205> of this code, the governor shall
13-9 designate a local elected official from a county or municipality
13-10 directly affected by the matter under review. The local official
13-11 shall serve as a nonvoting participant on the council for purposes
13-12 of reviewing and acting on that matter only.
13-13 (d) <(c)> In conducting reviews under Section 33.205 of this
13-14 code, the council shall receive and consider the oral or written
13-15 testimony of any person regarding the goals and policies of the
13-16 coastal management program <plan>. The council may reasonably
13-17 limit the length and format of the testimony and the time at which
13-18 it will be received. Notice of the period during which the
13-19 testimony will be received shall be published in the Texas Register
13-20 and in a newspaper of general circulation in each county directly
13-21 affected by the matter under review before the commencement of that
13-22 period. The council shall consider only the record before the
13-23 agency or subdivision involved in the matter under review, the
13-24 agency's or subdivision's findings, applicable laws and rules, any
13-25 additional information provided by that agency or subdivision, and
13-26 public testimony under this subsection, provided that if the agency
13-27 or subdivision did not hold a hearing, make a record, or make
14-1 findings, the council may hold a hearing and make findings
14-2 necessary to a complete and thorough review.
14-3 (e) <(d)> The land office shall assist the council in
14-4 carrying out its duties. The council members may <shall> not
14-5 receive compensation for services but may receive reimbursement for
14-6 actual and necessary expenses. The land office, in coordination
14-7 with other agencies and subdivisions, shall prepare an annual
14-8 report on the effectiveness of the coastal management program. The
14-9 land office shall submit the report to the council for approval.
14-10 On or before January 15 of each odd-numbered year, the land office
14-11 shall send to the legislature each of the previous two annual
14-12 reports.
14-13 Sec. 33.205. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM;
14-14 COUNCIL <STANDARDS; SUBMISSION FOR> REVIEW. (a) An agency that
14-15 takes an agency action described by Section 33.2051 or 33.2053 of
14-16 this code <All actions taken or authorized by state agencies and
14-17 subdivisions> that may adversely affect a coastal natural resource
14-18 area shall <areas, including discharges and withdrawals that may
14-19 significantly affect water quality in state waters subject to tidal
14-20 influence, must> comply with the goals and policies of the coastal
14-21 management program.
14-22 (b) The agency subject to the requirements of Subsection (a)
14-23 of this section <plan. In developing rules and policies applicable
14-24 in coastal areas and performing actions subject to the requirements
14-25 of this subsection, state agencies and subdivisions> shall affirm
14-26 that it has taken <take> into account the goals and policies of the
14-27 coastal management program by issuing a written determination that
15-1 a proposed action described by Section 33.2051 or 33.2053 of this
15-2 code is consistent with the program 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 before the 31st day after the date the
15-27 agency proposed the action the matter is placed on the agenda for a
16-1 council meeting<.>
16-2 <(c) An action must be referred to the council within 30
16-3 days of the date it becomes final>.
16-4 (d) If consistency review thresholds are in effect under
16-5 Section 33.2052 of this code, the council may not review a proposed
16-6 action subject to the requirements of Subsections (a) and (b) of
16-7 this section for consistency with the goals and policies of the
16-8 coastal management program unless the requirements of Subsection
16-9 (c) of this section are satisfied and:
16-10 (1) if the proposed action is one for which a formal
16-11 hearing under Chapter 2001, Government Code, is available:
16-12 (A) the action exceeds the applicable thresholds
16-13 and the agency's consistency determination was contested in a
16-14 formal hearing or in an alternative dispute resolution process; or
16-15 (B) the action does not exceed the applicable
16-16 thresholds but may directly and adversely affect a critical area,
16-17 critical dune area, coastal park, wildlife management area or
16-18 preserve, or gulf beach and a state agency contested the agency's
16-19 consistency determination in a formal hearing; or
16-20 (2) if the proposed action is one for which a formal
16-21 hearing under Chapter 2001, Government Code, is not available to
16-22 contest the agency's determination, the action exceeds the
16-23 applicable thresholds.
16-24 (e) The council must consider and act on a matter referred
16-25 under Subsection (c) of this section before the 26th day after the
16-26 date the agency proposed the action. For purposes of this section,
16-27 an action subject to the contested case provisions of Chapter 2001,
17-1 Government Code, is proposed when notice of a decision or order is
17-2 issued under Section 2001.142, Government Code <the matter within
17-3 90 days of referral>.
17-4 (f) The council by rule shall establish a process by which
17-5 an applicant for a permit or other proposed action described in
17-6 Section 33.2053 of this code, or an agency proposing an action, may
17-7 request and receive a preliminary consistency review. The rules
17-8 shall:
17-9 (1) create a permitting assistance group composed of
17-10 representatives of council member agencies and other interested
17-11 council members to coordinate the preliminary reviews; and
17-12 (2) require that the following written information be
17-13 produced not later than the 45th day after the date of the request
17-14 for preliminary review:
17-15 (A) a statement from each agency required to
17-16 permit or approve the project as to whether the agency anticipates
17-17 approving or denying the application;
17-18 (B) if an agency intends to deny an application,
17-19 the agency's explanation of the grounds for denial and
17-20 recommendations for resolving the grounds in a way that would allow
17-21 the application to be approved;
17-22 (C) a statement from the permitting assistance
17-23 group indicating whether the project as a whole is likely to be
17-24 found consistent with the uniform policies of the coastal
17-25 management program; and
17-26 (D) if the project is likely to be found
17-27 inconsistent with the goals and policies of the coastal management
18-1 program, an explanation and recommendation for resolving the
18-2 inconsistency in a way that would allow the project to be found
18-3 consistent.
18-4 (g) The council by rule shall establish a process by which
18-5 an individual or small business may request and receive assistance
18-6 with filing applications for permits or other proposed actions
18-7 described by Section 33.2053 of this code. The rules shall provide
18-8 for:
18-9 (1) the coordination of preapplication assistance
18-10 through the permitting assistance group; and
18-11 (2) the provision of the following, by the permitting
18-12 assistance group, to an individual or a small business, on request:
18-13 (A) a list of the permits or other approvals
18-14 necessary for the project;
18-15 (B) a simple, understandable statement of all
18-16 permit requirements;
18-17 (C) a coordinated schedule for each agency's
18-18 decision on the action;
18-19 (D) a list of all the information the agencies
18-20 need to declare the applications for the permits or other approvals
18-21 administratively complete;
18-22 (E) assistance in completing the applications as
18-23 needed; and
18-24 (F) if enough information is already available,
18-25 a preliminary finding as to whether the project is likely to be
18-26 consistent with the goals and policies of the coastal management
18-27 program.
19-1 Sec. 33.2051. AGENCY RULE-MAKING ACTIONS. (a) The land
19-2 office shall comply with Sections 33.205(a) and (b) when adopting
19-3 or amending a rule governing the prevention of, response to, or
19-4 remediation of a coastal oil spill.
19-5 (b) The Texas Natural Resource Conservation Commission shall
19-6 comply with Sections 33.205(a) and (b) when adopting or amending a
19-7 rule governing:
19-8 (1) air pollutant emissions;
19-9 (2) on-site sewage disposal systems; or
19-10 (3) underground storage tanks.
19-11 (c) The State Soil and Water Conservation Board shall comply
19-12 with Sections 33.205(a) and (b) when adopting or amending a rule
19-13 governing agricultural or silvicultural nonpoint source pollution.
19-14 (d) An agency shall comply with Sections 33.205(a) and (b)
19-15 when adopting or amending a rule governing an individual action
19-16 described by Section 33.2053.
19-17 (e) The council may not review a proposed rule of the Texas
19-18 Department of Agriculture.
19-19 Sec. 33.2052. CERTIFICATION OF AGENCY RULES; AGENCY ACTIONS
19-20 CONSIDERED CONSISTENT. (a) The council by rule shall establish a
19-21 process by which an agency may submit rules and rule amendments
19-22 described by Section 33.2051 to the council for review and
19-23 certification for consistency with the goals and policies of the
19-24 coastal management program.
19-25 (b) The process must provide that an agency may submit to
19-26 the council consistency review thresholds for the agency's actions
19-27 described in Section 33.2053. After the council certifies that an
20-1 agency's rules are consistent and approves the agency's thresholds,
20-2 the agency's consistency determination under Section 33.205(b) for
20-3 an action is final and is not subject to referral and review under
20-4 Section 33.205(c) or (d), except as provided by Section
20-5 33.205(d)(1)(B).
20-6 (c) The council by rule shall provide that the council may
20-7 revoke its certification under Subsection (b) if the council finds
20-8 that an agency has:
20-9 (1) implemented certified rules in a manner that
20-10 conflicts with the goals and policies of the coastal management
20-11 program; or
20-12 (2) amended certified rules in a manner inconsistent
20-13 with the goals and policies of the coastal management program.
20-14 Sec. 33.2053. INDIVIDUAL AGENCY ACTIONS. (a) The land
20-15 office, the School Land Board, or a board for lease of state-owned
20-16 lands shall comply with Sections 33.205(a) and (b) when issuing or
20-17 approving:
20-18 (1) a mineral lease plan of operations;
20-19 (2) a geophysical or geochemical permit;
20-20 (3) a coastal easement;
20-21 (4) a miscellaneous easement;
20-22 (5) a coastal lease;
20-23 (6) a surface lease;
20-24 (7) a structure registration;
20-25 (8) a cabin permit;
20-26 (9) a navigation district lease;
20-27 (10) certification of a local government beach access
21-1 or dune protection plan; or
21-2 (11) an agency wetlands mitigation bank.
21-3 (b) The Public Utility Commission shall comply with Sections
21-4 33.205(a) and (b) when issuing a certificate of convenience and
21-5 necessity.
21-6 (c) The Railroad Commission of Texas shall comply with
21-7 Sections 33.205(a) and (b) when issuing:
21-8 (1) a wastewater discharge permit;
21-9 (2) a waste disposal or storage pit permit; or
21-10 (3) a certification of a federal permit for the
21-11 discharge of dredge or fill material.
21-12 (d) The Texas Transportation Commission shall comply with
21-13 Sections 33.205(a) and (b) when approving:
21-14 (1) an acquisition of a site for the placement or
21-15 disposal of dredge material from, or the expansion, relocation, or
21-16 alteration of, the Gulf Intracoastal Waterway; or
21-17 (2) a transportation construction project or
21-18 maintenance program.
21-19 (e) The Texas Historical Commission and the Texas
21-20 Antiquities Committee shall comply with Sections 33.205(a) and (b)
21-21 when issuing:
21-22 (1) a permit for destruction, alteration, or taking of
21-23 a coastal historic area; or
21-24 (2) a review of a federal undertaking affecting a
21-25 coastal historic area.
21-26 (f) The Texas Natural Resource Conservation Commission shall
21-27 comply with Sections 33.205(a) and (b) when issuing or approving:
22-1 (1) a wastewater discharge permit;
22-2 (2) a permit for a new concentrated animal feeding
22-3 operation located one mile or less from a critical area or coastal
22-4 waters;
22-5 (3) a permit for solid or hazardous waste treatment,
22-6 storage, or disposal;
22-7 (4) creation of a special purpose district or approval
22-8 of bonds for the purpose of construction of infrastructure on
22-9 coastal barriers;
22-10 (5) levee improvement or flood control projects;
22-11 (6) a certification of a federal permit for the
22-12 discharge of dredge or fill material;
22-13 (7) a declaration of an emergency and request for an
22-14 emergency release of water;
22-15 (8) a new permit for an annual appropriation of:
22-16 (A) 5,000 or more acre-feet of water within the
22-17 program boundary; or
22-18 (B) 10,000 or more acre-feet of water outside
22-19 the program boundary but within 200 stream miles of the coast;
22-20 (9) an amendment to a water permit for an increase in
22-21 an annual appropriation of:
22-22 (A) 5,000 or more acre-feet of water within the
22-23 program boundary; or
22-24 (B) 10,000 or more acre-feet of water outside
22-25 the program boundary but within 200 stream miles of the coast; or
22-26 (10) a change in the purpose of use of an annual
22-27 appropriation of water to a more consumptive use of:
23-1 (A) 5,000 or more acre-feet of water within the
23-2 program boundary; or
23-3 (B) 10,000 or more acre-feet of water outside
23-4 the program boundary but within 200 stream miles of the coast.
23-5 (g) The council may not review an action of the Texas
23-6 Natural Resource Conservation Commission described by Subsections
23-7 (f)(8)-(10) taken to implement a part of the Trans-Texas Water
23-8 Program that the Trans-Texas Water Program Policy Management
23-9 Committee has found to be consistent with the goals and policies of
23-10 the coastal management program. To find that the program is
23-11 consistent with the goals and policies, the Trans-Texas Water
23-12 Program Policy Management Committee must:
23-13 (1) include at least three members of the council, or
23-14 representatives of those members, as voting members of the
23-15 committee; and
23-16 (2) make the finding by a majority vote.
23-17 (h) The Parks and Wildlife Department shall comply with
23-18 Sections 33.205(a) and (b) when issuing or approving:
23-19 (1) an oyster lease;
23-20 (2) a permit for taking, transporting, or possessing
23-21 threatened or endangered species;
23-22 (3) a permit for disturbing marl, sand, shell, or
23-23 gravel on state-owned land; or
23-24 (4) development by a person other than the Parks and
23-25 Wildlife Department that requires the use or taking of any public
23-26 land in a state park, wildlife management area, or preserve.
23-27 (i) A political subdivision shall comply with Sections
24-1 33.205(a) and (b) when issuing a dune protection permit or
24-2 beachfront construction certificate that authorizes:
24-3 (1) construction activity that is located 200 feet or
24-4 less landward of the line of vegetation and that results in the
24-5 disturbance of more than 7,000 square feet of dunes or dune
24-6 vegetation;
24-7 (2) construction activity that results in the
24-8 disturbance of more than 7,500 cubic yards of dunes;
24-9 (3) a coastal shore protection project undertaken on a
24-10 gulf beach or 200 feet or less landward of the line of vegetation
24-11 and that affects more than 500 linear feet of gulf beach; or
24-12 (4) a closure, relocation, or reduction in existing
24-13 public beach access or public beach access designated in an
24-14 approved local government beach access plan, other than for a short
24-15 term.
24-16 (j) An action to renew, amend, or modify an existing permit,
24-17 certificate, lease, easement, approval, or other action is not an
24-18 action under this section if the action is taken under a rule that
24-19 the council has certified under Section 33.2052 and:
24-20 (1) for a wastewater discharge permit, if the action
24-21 is not a major permit modification that would:
24-22 (A) increase pollutant loads to coastal waters;
24-23 or
24-24 (B) result in relocation of an outfall to a
24-25 critical area;
24-26 (2) for solid, hazardous, or nonhazardous waste
24-27 permits, if the action is not a Class III modification under rules
25-1 of the Texas Natural Resource Conservation Commission; or
25-2 (3) for any other action, if the action:
25-3 (A) only extends the period of the existing
25-4 authorization and does not authorize new or additional work or
25-5 activity; or
25-6 (B) is not directly relevant to Sections
25-7 33.205(a) and (b).
25-8 (k) The council shall establish a program boundary to limit
25-9 the geographic area in which the requirements of Sections 33.205(a)
25-10 and (b) apply. The boundary may not be further inland than the
25-11 coastal facility designation line as defined by Appendix 1 to 31
25-12 Tex. Admin. Code Section 19.2 as that appendix existed on the
25-13 effective date of this section. Except as provided by Subsections
25-14 (f)(8)-(10), this subchapter does not apply to an agency action
25-15 authorizing an activity outside the program boundary.
25-16 Sec. 33.206. COUNCIL ACTION. (a) A proposed action is
25-17 consistent with the goals and policies of the coastal management
25-18 program and approved by the council unless, on the affirmative vote
25-19 of at least two-thirds of the members of the council, the council
25-20 determines the action to be inconsistent with the coastal
25-21 management program and protests <After reviewing an action of a
25-22 state agency or subdivision, the council may affirm or protest> the
25-23 action <of the state agency or subdivision>.
25-24 (b) If the council protests the proposed action, the council
25-25 shall report its findings on <remand> the matter to the <state>
25-26 agency <or subdivision>. The report <remand> shall specify how the
25-27 proposed action is inconsistent <include findings on
26-1 inconsistencies> with the <goals and policies of the> coastal
26-2 management program <plan> and <may> include specific
26-3 recommendations of the council regarding how the proposed action
26-4 may be modified or amended to make it consistent with the program.
26-5 Before the 21st day after the date the agency receives the report,
26-6 the<. On remand, the state> agency <or subdivision> shall review
26-7 the findings and recommendations and determine whether to modify or
26-8 amend the proposed action to make it consistent with the <goals and
26-9 policies of the> coastal management program <plan>. Should the
26-10 agency <or subdivision> decide not to amend its proposed action as
26-11 recommended by the council, it shall notify the council of that
26-12 decision.
26-13 (c) If an agency notifies the council that it has decided
26-14 not to modify or amend a proposed action to be consistent with the
26-15 goals and policies of the coastal management program, the council
26-16 shall request the attorney general to issue an opinion on the
26-17 consistency of the proposed action with the coastal management
26-18 program. The agency is stayed from taking the proposed action
26-19 until the attorney general issues the opinion. The attorney
26-20 general shall issue an opinion before the 26th day after the date
26-21 the council requests the opinion <The state agency's or
26-22 subdivision's action on remand is subject to review by the council
26-23 as provided in Section 33.205 of this code. The only basis on
26-24 which the council may reverse a decision of an agency or
26-25 subdivision is that the action is inconsistent with the goals and
26-26 policies of the coastal management plan>.
26-27 (d) The council shall adopt procedural rules for the review
27-1 of federal actions, activities, and outer continental shelf plans
27-2 that incorporate the provisions of federal regulations governing
27-3 those reviews. The rules shall provide that the chair or any three
27-4 members may request additional information from a federal agency or
27-5 additional time for review as provided by the federal regulations.
27-6 (e) The council shall review any federal action, activity,
27-7 or outer continental shelf plan that any three members of the
27-8 council agree presents a significant unresolved issue regarding
27-9 consistency with the goals and policies of the coastal management
27-10 program and place the matter on the agenda of a meeting of <the
27-11 commissioner submits to> the council for review.
27-12 (f) If an activity requiring a state action described by
27-13 Section 33.2053 that falls below thresholds in effect under Section
27-14 33.2052 also requires an equivalent federal permit or license, the
27-15 council may only determine the state action's consistency. If an
27-16 activity requiring a state action above thresholds requires an
27-17 equivalent federal permit or license, the council may determine the
27-18 consistency of the state action or the federal license or permit,
27-19 but not both. The determination regarding the consistency of an
27-20 action made by the council under this subsection constitutes the
27-21 state's determination regarding consistency of the equivalent state
27-22 or federal action.
27-23 (g) If, after review, the council finds a proposed federal
27-24 agency action or activity or outer continental shelf plan is
27-25 inconsistent with <does not comply with goals and policies of> the
27-26 coastal management program <plan>, and the federal agency does not
27-27 modify the action, activity, or outer continental shelf plan to
28-1 achieve consistency with the program, the governor, with the
28-2 assistance of the chair of the council, may seek mediation of the
28-3 matter in accordance with federal law <refer the matter to any
28-4 federal official authorized to review or act on the matter and may
28-5 pursue resolution of the matter with the federal official>.
28-6 (h) The council may not protest a proposed action by an
28-7 agency pertaining to an application filed with that agency before
28-8 the date the coastal management program is adopted.
28-9 Sec. 33.207. COUNCIL RECOMMENDATIONS. In addition to the
28-10 report required by Section 33.206, the council:
28-11 (1) may periodically submit recommendations to an
28-12 agency designed to encourage the agency to carry out its functions
28-13 in a manner consistent with the coastal management program,
28-14 including recommendations for methods to simplify governmental
28-15 procedures and changes in applicable rules or statutes; and
28-16 (2) shall report to the legislature on:
28-17 (A) recommended statutory changes needed to make
28-18 more effective and efficient use of public funds and provide for
28-19 more effective and efficient management of coastal natural resource
28-20 areas, including recommendations on methods to simplify
28-21 governmental procedures; and
28-22 (B) agency actions that are not consistent with
28-23 the coastal management program. <JUDICIAL REVIEW. A person
28-24 aggrieved by a final action of the council may appeal to a district
28-25 court under the Administrative Procedure and Texas Register Act
28-26 (Article 6252-13a, Vernon's Texas Civil Statutes).>
28-27 Sec. 33.208. ENFORCEMENT. (a) The agency with jurisdiction
29-1 over a proposed action shall enforce the provisions of the coastal
29-2 management program in the manner provided for enforcement in the
29-3 rules of the agency.
29-4 (b) If the attorney general issues an opinion under Section
29-5 33.206(c) that a proposed agency action is inconsistent with the
29-6 coastal management program and the agency fails to implement the
29-7 council's recommendation regarding the action, the <The> attorney
29-8 general<, at the request of the council,> shall file suit in a
29-9 district court of Travis County <or in the county in which the
29-10 violation occurs a suit> to enforce this subchapter. The court
29-11 shall consider the attorney general's opinion in determining
29-12 whether the proposed action is consistent with the coastal
29-13 management program.
29-14 (c) Notwithstanding the request of an opinion from, or the
29-15 filing of suit by, the attorney general, the council and the agency
29-16 may enter into a settlement agreement with regard to the proposed
29-17 action. If the council and the agency enter into a settlement
29-18 agreement, the council may rescind its request for an opinion from
29-19 the attorney general.
29-20 Sec. 33.209. VOLUNTARY SPECIAL AREA MANAGEMENT PLANS. (a)
29-21 The council by rule may adopt goals and policies applicable only to
29-22 a designated special area of the coast. Except as provided by
29-23 Subsections (b) and (c), the rules applicable to the special area
29-24 constitute the goals and policies of the coastal management program
29-25 for the special area in place of the general coastal management
29-26 program goals and policies. The council by rule shall designate
29-27 the boundaries of each special area.
30-1 (b) A rule applicable to a special area adopted under this
30-2 section does not apply to:
30-3 (1) real property if the owner does not consent in
30-4 writing to the application of the rules to the property;
30-5 (2) an area in a municipality's jurisdiction if the
30-6 governing body of the municipality does not consent in writing to
30-7 the application of the rules within its jurisdiction; or
30-8 (3) an area in a county's jurisdiction if the
30-9 governing body of the county does not consent in writing to the
30-10 application of the rules within its jurisdiction.
30-11 (c) An area within the special area to which the special
30-12 area rules do not apply remains subject to the general goals and
30-13 policies.
30-14 Sec. 33.210. PRIVATE PROPERTY. The requirements of this
30-15 subchapter may not be applied in a manner that would result in the
30-16 taking, damage, or destruction of property without adequate
30-17 compensation.
30-18 Sec. 33.211. SUNSET PROVISION. The Coastal Coordination
30-19 Council is subject to Chapter 325, Government Code (Texas Sunset
30-20 Act). Unless continued in existence as provided by that chapter,
30-21 the council is abolished and this subchapter expires September 1,
30-22 1999.
30-23 SECTION 5. The governor shall appoint an owner of a business
30-24 located in the coastal area who resides in the coastal area and a
30-25 representative of agriculture to the Coastal Coordination Council
30-26 for terms beginning February 1, 1996. Both appointments are
30-27 subject to confirmation by the Senate of the 75th Legislature. A
31-1 council member appointed by the governor before the convening of
31-2 the 74th Legislature shall serve the remainder of the member's term
31-3 without regard to whether the member is confirmed by the senate.
31-4 SECTION 6. If the secretary of the United States Department
31-5 of Commerce and the administrator of the United States
31-6 Environmental Protection Agency find Texas has failed to submit an
31-7 approvable coastal nonpoint pollution control program as required
31-8 by 16 U.S.C. Section 1455b, which would result in the withholding
31-9 of money under 16 U.S.C. Sections 1455b(c)(3) and (4), the governor
31-10 shall withdraw any coastal management program developed under
31-11 Chapter 33, Natural Resources Code, that has been:
31-12 (1) approved by the secretary of the United States
31-13 Department of Commerce; or
31-14 (2) submitted to the secretary of the United States
31-15 Department of Commerce for approval under 16 U.S.C. Section 1455.
31-16 SECTION 7. The importance of this legislation and the
31-17 crowded condition of the calendars in both houses create an
31-18 emergency and an imperative public necessity that the
31-19 constitutional rule requiring bills to be read on three several
31-20 days in each house be suspended, and this rule is hereby suspended,
31-21 and that this Act take effect and be in force from and after its
31-22 passage, and it is so enacted.