1-1 By: Berlanga, et al. (Senate Sponsor - Patterson) H.B. No.
1-2 3226
1-3 (In the Senate - Received from the House May 12, 1995;
1-4 May 15, 1995, read first time and referred to Committee on Natural
1-5 Resources; May 17, 1995, reported favorably by the following vote:
1-6 Yeas 10, Nays 0; May 17, 1995, sent to printer.)
1-7 A BILL TO BE ENTITLED
1-8 AN ACT
1-9 relating to protection of coastal resources.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 33.004, Natural Resources Code, is
1-12 amended by amending Subdivision (8) and adding Subdivisions (13)
1-13 and (14) to read as follows:
1-14 (8) "Management program" means the coastal <public
1-15 land> management program provided by this chapter <and shall
1-16 include a comprehensive statement in words, maps, illustrations, or
1-17 other media inventorying coastal public land resources and
1-18 capabilities and setting forth objectives, policies, and standards
1-19 to guide planning and to control the utilization of those
1-20 resources>.
1-21 (13) "Council" means the Coastal Coordination Council.
1-22 (14) "Coastal zone" means the portion of the coastal
1-23 area located within the boundaries established by the coastal
1-24 management program under Section 33.053(a)(1).
1-25 SECTION 2. Sections 33.051, 33.052, 33.053, and 33.055,
1-26 Natural Resources Code, are amended to read as follows:
1-27 Sec. 33.051. GENERAL DUTY. The board, the council, and the
1-28 land office shall perform the duties provided in this subchapter.
1-29 Sec. 33.052. DEVELOPMENT OF COASTAL MANAGEMENT PROGRAM.
1-30 (a) The commissioner shall develop a continuing comprehensive
1-31 coastal management program pursuant to the policies stated in
1-32 Section 33.202 <33.001> of this code. The program is not effective
1-33 until approved by a majority of the council under Section 33.204 of
1-34 this code.
1-35 (b) In developing the program, the land office shall act as
1-36 the lead agency to coordinate and develop a long-term plan for the
1-37 management of uses affecting coastal natural resource
1-38 <conservation> areas, in cooperation with other state agencies that
1-39 have duties relating to coastal matters, including those agencies
1-40 represented on the council <the Parks and Wildlife Department, the
1-41 attorney general's office, the Texas Water Commission, the Texas
1-42 Water Development Board, the State Department of Highways and
1-43 Public Transportation, and the Railroad Commission of Texas>. The
1-44 program <plan> shall implement the policies stated in Section
1-45 33.202 <33.001> of this code and shall include the elements listed
1-46 in Section 33.053 of this code.
1-47 (c) The council <land office> may appoint and establish
1-48 procedures for an advisory committee to advise the council and the
1-49 land office on coastal management issues. The advisory committee
1-50 may only include persons with expertise in coastal matters and
1-51 persons who live in the Texas coastal area. A member of the
1-52 advisory committee serves at the pleasure of the council <land
1-53 office>. A member is not entitled to compensation for services
1-54 performed as a member of the committee but may receive
1-55 reimbursement from land office funds for actual and necessary
1-56 expenses incurred in attending meetings of the advisory committee.
1-57 (d) For purposes of Subsections (a) and (b) of this section,
1-58 "coastal natural resource <conservation> areas" has the meaning
1-59 assigned by Section 33.203 of this code <includes beaches and
1-60 critical dune areas bordering on the seaward shore of the Gulf of
1-61 Mexico; coastal public submerged lands; washover channels on
1-62 barrier islands; historic areas, parks, wildlife refuges,
1-63 preserves, and other such designated natural resource management
1-64 areas within the coastal area; the water of the open Gulf of
1-65 Mexico, and the land lying beneath that water within the
1-66 jurisdiction of the state>.
1-67 (e) <The land office may adopt rules to implement this
1-68 section.>
2-1 <(f)> This section does not add to or subtract from the
2-2 duties and responsibilities of a state agency other than the land
2-3 office, the council, and the board.
2-4 <(g) The land office shall, on September 1 of even-numbered
2-5 years, present a biennial report to the legislature outlining the
2-6 status of coastal problems, issues, and programs.>
2-7 Sec. 33.053. ELEMENTS OF COASTAL MANAGEMENT PROGRAM. (a)
2-8 The coastal management program, in compliance with the Coastal Zone
2-9 Management Act of 1972 (16 U.S.C. Section 1451 et seq.), shall
2-10 include the following elements:
2-11 (1) an identification of the boundaries of the coastal
2-12 zone subject to the coastal management program as provided by
2-13 Section 33.2053(k) <a continuous inventory of coastal public land
2-14 and water resources including a determination of the extent and
2-15 location of the coastal public land>;
2-16 (2) a continuous analysis of the potential uses for
2-17 <which> the <coastal public> land and water within the coastal zone
2-18 <might be used>, including recommendations as to which
2-19 configurations of uses consonant with the policies of this chapter
2-20 maximize the benefits conferred on the present and future citizens
2-21 of Texas;
2-22 (3) guidelines on the priority of uses <in coastal
2-23 public land> within the coastal zone <area>, including specifically
2-24 those uses of lowest priority;
2-25 (4) a list <definition> of the <permissible> uses of
2-26 the <coastal public> land and water within the coastal zone that
2-27 are permissible under state law and under agency or subdivision
2-28 actions described by Sections 33.2051 and 33.2053 and that <and
2-29 definitions of the uses of adjacent areas which> would have a
2-30 direct and significant <adverse> impact on the <management or use
2-31 of> coastal waters <public land or water>;
2-32 (5) recommendations as to increments of jurisdiction
2-33 or authority necessary to protect <coastal public> land and water
2-34 within the coastal zone from direct and significant detrimental
2-35 <adverse> consequences flowing from the uses of adjacent land;
2-36 (6) an inventory of designated coastal natural
2-37 resource areas, as defined by Section 33.203, <endangered
2-38 environments and resources> in the coastal zone <public land>;
2-39 <and>
2-40 (7) a description of <recommendations for any changes
2-41 necessary in> the organizational structure by which the coastal
2-42 management program is implemented and administered;
2-43 (8) a compilation of state constitutional provisions,
2-44 laws, rules, and judicial decisions under which the state proposes
2-45 to exercise control over the uses of land and water described by
2-46 Subdivision (4);
2-47 (9) a list of each agency or subdivision action, as
2-48 described by Sections 33.2051 and 33.2053, that may have a direct
2-49 and significant detrimental impact on coastal natural resource
2-50 areas;
2-51 (10) a list of each federal agency action or activity
2-52 and each outer continental shelf plan that may have a direct and
2-53 significant detrimental impact on coastal natural resource areas;
2-54 (11) a procedure, as described under Sections 33.205,
2-55 33.2051, 33.2052, 33.2053, 33.206, 33.208, and 33.209, for
2-56 determining the consistency of an agency or subdivision action or a
2-57 federal agency action or activity or outer continental shelf plan
2-58 with the goals and policies of the coastal management program;
2-59 (12) a definition of "gulf beach," as defined by
2-60 Section 33.203, and a description of the statutory planning process
2-61 or program for protection of and access to public beaches and other
2-62 public coastal areas of environmental, recreational, historical,
2-63 aesthetic, ecological, or cultural value;
2-64 (13) a description of the statutory planning process
2-65 or program for energy facilities likely to be located in, or that
2-66 may directly and significantly affect, the coastal zone;
2-67 (14) a description of the statutory planning process
2-68 or program for:
2-69 (A) assessing the effects of shoreline erosion;
2-70 (B) studying and evaluating ways to control or
3-1 reduce the impact of shoreline erosion; and
3-2 (C) restoring areas detrimentally affected by
3-3 shoreline erosion;
3-4 (15) a description of the state's statutory program
3-5 regulating nonpoint source water pollution, as it relates to the
3-6 coastal zone; and
3-7 (16) an explanation of the relationship of specific
3-8 policies of the coastal management program to:
3-9 (A) protection of resources;
3-10 (B) management of coastal development; and
3-11 (C) simplification of governmental procedures.
3-12 (b) For purposes of Subsections (a)(9) and (a)(11), "agency
3-13 or subdivision action" has the meaning assigned by Section 33.203.
3-14 (c) For purposes of Subsections (a)(10) and (a)(11),
3-15 "federal agency action," "federal agency activity," and "outer
3-16 continental shelf plan" have the meanings assigned by Section
3-17 33.203.
3-18 Sec. 33.055. PUBLIC HEARINGS TO CONSIDER COASTAL MANAGEMENT
3-19 PROGRAM. <(a)> In developing, reviewing, or amending the coastal
3-20 management program, after due notice to affected persons and the
3-21 public generally, the commissioner and the council shall hold or
3-22 have held public hearings as the commissioner and the council
3-23 determine <determines> to be appropriate.
3-24 <(b) In reviewing or amending the management program, the
3-25 commissioner may hold or have held public hearings in the manner
3-26 provided in Subsection (a) of this section.>
3-27 SECTION 3. Section 33.202(a), Natural Resources Code, is
3-28 amended to read as follows:
3-29 (a) It is declared to be the policy of this state to make
3-30 more effective and efficient use of public funds and provide for
3-31 more effective and efficient management of coastal natural resource
3-32 areas, and to better serve the people of Texas by:
3-33 (1) continually reviewing the principal coastal
3-34 problems of state concern, coordinating the performance of
3-35 government <agencies, subdivisions, and> programs affecting coastal
3-36 natural resource areas, and <the> coordinating the measures
3-37 required to resolve identified coastal problems; and
3-38 (2) making all coastal management processes more
3-39 visible, accessible, coherent, consistent, and accountable to the
3-40 people of Texas.
3-41 SECTION 4. Subchapter F, Chapter 33, Natural Resources Code,
3-42 is amended by amending Sections 33.203, 33.204, 33.205, 33.206,
3-43 33.207, and 33.208, and adding Sections 33.2051, 33.2052, 33.2053,
3-44 33.209, 33.210, and 33.211 to read as follows:
3-45 Sec. 33.203. DEFINITIONS. In this subchapter:
3-46 (1) "Coastal natural resource areas" means:
3-47 (A) coastal barriers;
3-48 (B) coastal historic areas;
3-49 (C) coastal preserves;
3-50 (D) coastal shore areas;
3-51 (E) coastal wetlands;
3-52 (F) critical dune areas;
3-53 (G) critical erosion areas;
3-54 (H) gulf beaches;
3-55 (I) hard substrate reefs;
3-56 (J) oyster reefs;
3-57 (K) submerged land;
3-58 (L) special hazard areas;
3-59 (M) submerged aquatic vegetation;
3-60 (N) tidal sand or mud flats;
3-61 (O) water of the open Gulf of Mexico; and
3-62 (P) water under tidal influence <areas
3-63 designated in the coastal management plan as requiring special
3-64 management, including coastal public submerged lands, public
3-65 beaches, washover areas on peninsulas, mainland shorelines, and
3-66 barrier islands, protected sand dune complexes on the Gulf
3-67 shoreline, and parks, historic areas, wildlife refuges, preserves,
3-68 and other such natural resource management areas located within the
3-69 coastal area and designated in the coastal management plan>.
3-70 (2) "Coastal barrier" means an undeveloped area on a
4-1 barrier island, peninsula, or other protected area, as designated
4-2 by United States Fish and Wildlife Service maps.
4-3 (3) "Coastal historic area" means a site that is
4-4 specially identified in rules adopted by the Texas Historical
4-5 Commission or the Antiquities Committee as being coastal in
4-6 character and that is:
4-7 (A) a site on the National Register of Historic
4-8 Places, designated under 16 U.S.C. Section 470a and 36 CFR Part 63,
4-9 Chapter 1; or
4-10 (B) a state archaeological landmark, as defined
4-11 by Subchapter D, Chapter 191.
4-12 (4) "Coastal preserve" means any land, including a
4-13 park or wildlife management area, that is owned by the state and
4-14 that is:
4-15 (A) subject to Chapter 26, Parks and Wildlife
4-16 Code, because it is a park, recreation area, scientific area,
4-17 wildlife refuge, or historic site; and
4-18 (B) designated by the Parks and Wildlife
4-19 Commission as being coastal in character.
4-20 (5) "Coastal shore area" means an area within 100 feet
4-21 landward of the highwater mark on submerged land.
4-22 (6) "Coastal waters" means waters under tidal
4-23 influence and waters of the open Gulf of Mexico.
4-24 (7) "Coastal wetlands" means wetlands, as the term is
4-25 defined by Section 11.502, Water Code, located:
4-26 (A) seaward of the coastal facility designation
4-27 line established by rules adopted under Chapter 40;
4-28 (B) within rivers and streams, to the extent of
4-29 tidal influence, as shown on the Texas Natural Resource
4-30 Conservation Commission's stream segment maps;
4-31 (C) within one mile of the mean high tide of the
4-32 portion of river and stream described by Paragraph (B), except as
4-33 provided by Paragraphs (D) and (E);
4-34 (D) in the case of wetlands bordering the
4-35 portion of the Trinity River described by Paragraph (B):
4-36 (i) within the area located between the
4-37 mean high tide line on the western shoreline of that portion of the
4-38 river and Farm-to-Market Road 565 and Farm-to-Market Road 1409; or
4-39 (ii) within the area located between the
4-40 mean high tide line on the eastern shoreline of that portion of the
4-41 river and Farm-to-Market Road 563; or
4-42 (E) in the case of wetlands bordering the
4-43 portion of the Neches River described by Paragraph (B):
4-44 (i) within one mile from the mean high
4-45 tide line of the western shoreline of that portion of the river
4-46 described by Paragraph (B); or
4-47 (ii) within the area located between the
4-48 mean high tide line on the eastern shoreline of that portion of the
4-49 river and Farm-to-Market Road 105.
4-50 (8) "Critical area" means a coastal wetland, an oyster
4-51 reef, a hard substrate reef, submerged aquatic vegetation, or a
4-52 tidal sand or mud flat.
4-53 (9) "Critical dune area" means a protected sand dune
4-54 complex on the Gulf shoreline within 1,000 feet of mean high tide
4-55 designated by the land commissioner under Section 63.121.
4-56 (10) "Critical erosion area" means an area designated
4-57 by the land commissioner under Section 33.601(b).
4-58 (11) "Gulf beach" means a beach bordering the Gulf of
4-59 Mexico that is:
4-60 (A) located inland from the mean low tide line
4-61 to the natural line of vegetation bordering the seaward shore of
4-62 the Gulf of Mexico; or
4-63 (B) part of a contiguous beach area to which the
4-64 public has a right of use or easement:
4-65 (i) continuously held by the public; or
4-66 (ii) acquired by the public by
4-67 prescription, dedication, or estoppel.
4-68 (12) "Hard substrate reef" means a naturally occurring
4-69 hard substrate formation, including a rock outcrop or serpulid worm
4-70 reef, living or dead, in an intertidal or subtidal area.
5-1 (13) "Oyster reef" means a natural or artificial
5-2 formation that is:
5-3 (A) composed of oyster shell, live oysters, and
5-4 other living or dead organisms;
5-5 (B) discrete, contiguous, and clearly
5-6 distinguishable from scattered oyster shell or oysters; and
5-7 (C) located in an intertidal or subtidal area.
5-8 (14) "Special hazard area" means an area designated
5-9 under 42 U.S.C. Section 4001 et seq. as having special flood,
5-10 mudslide or mudflow, or flood-related erosion hazards and shown on
5-11 a flood hazard boundary map or flood insurance rate map as Zone A,
5-12 AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M, or E.
5-13 (15) "Submerged land" means land located under waters
5-14 under tidal influence or under waters of the open Gulf of Mexico,
5-15 without regard to whether the land is owned by the state or a
5-16 person other than the state.
5-17 (16) "Submerged aquatic vegetation" means rooted
5-18 aquatic vegetation growing in permanently inundated areas in
5-19 estuarine and marine systems.
5-20 (17) "Tidal sand or mud flat" means a silt, clay, or
5-21 sand substrate, without regard to whether it is vegetated by algal
5-22 mats, that occur in intertidal areas and that are regularly or
5-23 intermittently exposed and flooded by tides, including tides
5-24 induced by weather.
5-25 (18) "Water of the open Gulf of Mexico" means water in
5-26 this state, as defined by Section 26.001(5), Water Code, that is
5-27 part of the open water of the Gulf of Mexico and that is within the
5-28 territorial limits of the state.
5-29 (19) "Water under tidal influence" means water in this
5-30 state, as defined by Section 26.001(5), Water Code, that is subject
5-31 to tidal influence according to the Texas Natural Resource
5-32 Conservation Commission's stream segment map. The term includes
5-33 coastal wetlands.
5-34 (20) "Council" means the Coastal Coordination Council,
5-35 which shall consist of the commissioner, <the attorney general,>
5-36 the chair of the Parks and Wildlife Commission or a member of the
5-37 commission designated by the chair, the chair of the Texas Natural
5-38 Resource Conservation <Water> Commission or a member of the
5-39 commission designated by the chair, a member of the Railroad
5-40 Commission of Texas appointed by that commission, the chair of the
5-41 Texas Water Development Board or a member of the board designated
5-42 by the chair, the chair of the Texas Transportation Commission or a
5-43 member of the commission designated by the chair, a member of the
5-44 State Soil and Water Conservation Board appointed by that board,
5-45 and one city or county elected official who resides in the coastal
5-46 area, one owner of a business located in the coastal area who
5-47 resides in the coastal area, <and> one resident from the coastal
5-48 area, and a representative of agriculture, each appointed by the
5-49 governor with the advice and consent of the senate for two-year
5-50 terms. The terms of the positions on the council held by the city
5-51 or county elected official who resides in the coastal area and the
5-52 resident from the coastal area expire May 31 of each even-numbered
5-53 year. The terms of the positions on the council held by the owner
5-54 of a business located in the coastal area who resides in the
5-55 coastal area and the representative of agriculture expire May 31 of
5-56 each odd-numbered year.
5-57 (21) <(3)> "Agency or subdivision" means any state
5-58 agency, department, board, or commission or political subdivision
5-59 of the state<, subdivision, body politic, or other government
5-60 entity or unit>.
5-61 (22) <(4)> "Coastal management program <plan>" means
5-62 an ongoing, comprehensive program containing the elements required
5-63 for approval of a program under the Coastal Zone Management Act of
5-64 1972 (16 U.S.C. Section 1451 et seq.) that is designed to
5-65 coordinate agencies' management of activities that may adversely
5-66 affect coastal natural resource areas for the purpose of
5-67 continually making management of those activities more efficient
5-68 and effective <the plan as developed by the commissioner under
5-69 Section 33.052 of this code>.
5-70 (23) "Agency or subdivision action" means an action
6-1 described by Section 33.2051 or 33.2053.
6-2 (24) "Federal agency activity" means a function
6-3 performed by or for a federal agency in the exercise of its
6-4 statutory responsibility, including financial assistance, the
6-5 planning, construction, modification, or removal of a public work,
6-6 facility, or any other structure, and the acquisition, use, or
6-7 disposal of land or water resources. The term does not include the
6-8 issuance of a federal license or permit.
6-9 (25) "Federal agency action" means a license or permit
6-10 that a federal agency may issue that represents the proposed
6-11 federal authorization, approval, or certification needed by the
6-12 applicant to begin an activity.
6-13 (26) "Proposed action" means an agency or subdivision
6-14 action under consideration by the agency or subdivision, but with
6-15 respect to which the agency or subdivision has not made a final
6-16 decision.
6-17 (27) "Outer continental shelf plan" means a plan for
6-18 the exploration or development of, or production from, an area
6-19 leased under the Outer Continental Shelf Lands Act (43 U.S.C.
6-20 Section 1331 et seq.) and the rules adopted under that Act that is
6-21 submitted to the secretary of the United States Department of the
6-22 Interior after federal approval of the coastal management program.
6-23 Sec. 33.204. ADMINISTRATION <ADOPTION> OF COASTAL MANAGEMENT
6-24 PROGRAM <GOALS AND POLICIES; REVIEW>. (a) The council by rule
6-25 shall adopt <promulgate rules adopting the> goals and policies of
6-26 the coastal management program. A goal or policy may not require
6-27 an agency or subdivision to perform an action that would exceed the
6-28 constitutional or statutory authority of the agency or subdivision
6-29 to which the goal or policy applies <plan and make studies of
6-30 problems and issues affecting the management of coastal natural
6-31 resource areas as provided in the plan>.
6-32 (b) The council shall meet once in each calendar quarter.
6-33 The commissioner is chair of the council. The chair or any three
6-34 members of the council <and> may convene special meetings at other
6-35 times.
6-36 (c) Except as provided by Sections 33.205(c)(3) and
6-37 33.206(a), the council may act on the agreement of a majority of a
6-38 quorum of the council.
6-39 (d) For each matter to be reviewed by the council under
6-40 Section 33.205(c) or (d) <33.205> of this code, the governor shall
6-41 designate a local elected official from a county or municipality
6-42 directly affected by the matter under review. The local official
6-43 shall serve as a nonvoting participant on the council for purposes
6-44 of reviewing and acting on that matter only.
6-45 (e) <(c)> In conducting reviews under Section 33.205 of this
6-46 code, the council shall receive and consider the oral or written
6-47 testimony of any person regarding <the goals and policies of> the
6-48 coastal management program as the testimony relates to the agency
6-49 or subdivision action or federal agency action or activity or outer
6-50 continental shelf plan under review <plan>. The council may
6-51 reasonably limit the length and format of the testimony and the
6-52 time at which it will be received. Notice of the period during
6-53 which the testimony will be received shall be published in the
6-54 Texas Register and in a newspaper of general circulation in each
6-55 county directly affected by the matter under review before the
6-56 commencement of that period. The council shall consider only the
6-57 record before the agency or subdivision involved in the matter
6-58 under review, the agency's or subdivision's findings, applicable
6-59 laws and rules, any additional information provided by that agency
6-60 or subdivision, and public testimony under this subsection,
6-61 provided that if the agency or subdivision did not hold a hearing,
6-62 make a record, or make findings, the council may hold a hearing and
6-63 make findings necessary to a complete and thorough review.
6-64 (f) <(d)> The land office shall assist the council in
6-65 carrying out its duties. The council members may <shall> not
6-66 receive compensation for services but may receive reimbursement for
6-67 actual and necessary expenses. The land office, in coordination
6-68 with other agencies and subdivisions, shall prepare an annual
6-69 report on the effectiveness of the coastal management program. The
6-70 land office shall submit the report to the council for approval.
7-1 On or before January 15 of each odd-numbered year, the land office
7-2 shall send to the legislature each of the previous two annual
7-3 reports.
7-4 Sec. 33.205. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM;
7-5 COUNCIL <STANDARDS; SUBMISSION FOR> REVIEW. (a) An agency or
7-6 subdivision that takes an agency or subdivision action described by
7-7 Section 33.2051 or 33.2053 <All actions taken or authorized by
7-8 state agencies and subdivisions> that may adversely affect a
7-9 coastal natural resource area shall <areas, including discharges
7-10 and withdrawals that may significantly affect water quality in
7-11 state waters subject to tidal influence, must> comply with the
7-12 goals and policies of the coastal management program.
7-13 (b) An agency or subdivision subject to the requirements of
7-14 Subsection (a) <plan. In developing rules and policies applicable
7-15 in coastal areas and performing actions subject to the requirements
7-16 of this subsection, state agencies and subdivisions> shall affirm
7-17 that it has taken <take> into account the goals and policies of the
7-18 coastal management program by issuing a written determination that
7-19 a proposed action described by Section 33.2051 or 33.2053 is
7-20 consistent with the program goals and policies <plan>.
7-21 (c) <(b)> The council may not <shall> review a proposed
7-22 <any> action subject to the requirements of Subsections
7-23 <Subsection> (a) and (b) of this section for consistency with the
7-24 goals and policies of the coastal management program unless:
7-25 (1) the consistency determination for the proposed
7-26 action was contested by:
7-27 (A) a council member or an agency that was a
7-28 party in a formal hearing under Chapter 2001, Government Code, or
7-29 in an alternative dispute resolution process; or
7-30 (B) a council member or other person by the
7-31 filing of written comments with the agency before the action was
7-32 proposed if the proposed action is one for which a formal hearing
7-33 under Chapter 2001, Government Code, is not available;
7-34 (2) a person described by Subdivision (1) of this
7-35 subsection files a request for referral alleging a significant
7-36 unresolved dispute regarding the proposed action's consistency with
7-37 the goals and policies of the coastal management program; and
7-38 (3) <that the commissioner submits to the council for
7-39 review. The council shall review any action subject to the
7-40 requirements of Subsection (a) of this section that is submitted to
7-41 the council by> any three regular members of the council agree that
7-42 there is a significant unresolved dispute regarding the proposed
7-43 action's consistency with the goals and policies of the coastal
7-44 management program and the matter is placed on the agenda for a
7-45 council meeting<.>
7-46 <(c) An action must be referred to the council within 30
7-47 days of the date it becomes final>.
7-48 (d) If consistency review thresholds are in effect under
7-49 Section 33.2052, the council may not review a proposed action
7-50 subject to the requirements of Subsections (a) and (b) for
7-51 consistency with the goals and policies of the coastal management
7-52 program unless the requirements of Subsection (c) are satisfied
7-53 and:
7-54 (1) if the proposed action is one for which a formal
7-55 hearing under Chapter 2001, Government Code, is available:
7-56 (A) the action exceeds the applicable thresholds
7-57 and the agency's consistency determination was contested in a
7-58 formal hearing or in an alternative dispute resolution process; or
7-59 (B) the action does not exceed the applicable
7-60 thresholds but may directly and adversely affect a critical area,
7-61 critical dune area, coastal park, wildlife management area or
7-62 preserve, or gulf beach and a state agency contested the agency's
7-63 consistency determination in a formal hearing; or
7-64 (2) if the proposed action is one for which a formal
7-65 hearing under Chapter 2001, Government Code, is not available to
7-66 contest the agency's determination, the action exceeds the
7-67 applicable thresholds.
7-68 (e) The council must consider and act on a matter referred
7-69 under Subsection (c) or (d) before the 26th day after the date the
7-70 agency or subdivision proposed the action. For purposes of this
8-1 section, an action subject to the contested case provisions of
8-2 Chapter 2001, Government Code, is proposed when notice of a
8-3 decision or order is issued under Section 2001.142, Government Code
8-4 <the matter within 90 days of referral>.
8-5 (f) The council by rule shall establish a process by which
8-6 an applicant for a permit or other proposed action described in
8-7 Section 33.2053, or an agency or subdivision proposing an action,
8-8 may request and receive a preliminary consistency review. The
8-9 rules shall:
8-10 (1) create a permitting assistance group composed of
8-11 representatives of council member agencies and other interested
8-12 council members to coordinate the preliminary reviews; and
8-13 (2) require that the following written information be
8-14 produced not later than the 45th day after the date of the request
8-15 for preliminary review:
8-16 (A) a statement from each agency or subdivision
8-17 required to permit or approve the project as to whether the agency
8-18 or subdivision anticipates approving or denying the application;
8-19 (B) if an agency or subdivision intends to deny
8-20 an application, the agency's or subdivision's explanation of the
8-21 grounds for denial and recommendations for resolving the grounds in
8-22 a way that would allow the application to be approved;
8-23 (C) if enough information is already available,
8-24 a preliminary finding as to whether the project is likely to be
8-25 found consistent with the goals and policies of the coastal
8-26 management program; and
8-27 (D) if the project is likely to be found
8-28 inconsistent with the goals and policies of the coastal management
8-29 program, an explanation and recommendation for resolving the
8-30 inconsistency in a way that would allow the project to be found
8-31 consistent.
8-32 (g) The council by rule shall establish a process by which
8-33 an individual or small business may request and receive assistance
8-34 with filing applications for permits or other proposed actions
8-35 described by Section 33.2053. The rules shall provide for:
8-36 (1) the coordination of preapplication assistance
8-37 through the permitting assistance group; and
8-38 (2) the provision of the following, by the permitting
8-39 assistance group, to an individual or a small business, on request:
8-40 (A) a list of the permits or other approvals
8-41 necessary for the project;
8-42 (B) a simple, understandable statement of all
8-43 permit requirements;
8-44 (C) a coordinated schedule for each agency's or
8-45 subdivision's decision on the action;
8-46 (D) a list of all the information the agencies
8-47 or subdivisions need to declare the applications for the permits or
8-48 other approvals administratively complete;
8-49 (E) assistance in completing the applications as
8-50 needed; and
8-51 (F) if enough information is already available,
8-52 a preliminary finding as to whether the project is likely to be
8-53 found consistent with the goals and policies of the coastal
8-54 management program.
8-55 (h) If an agency, subdivision, or applicant has received a
8-56 preliminary finding of consistency under Subsection (f)(2)(C) or
8-57 (g)(2)(F) and a request for referral was filed on that action under
8-58 Subsection (c)(2), the council may accept the request for referral
8-59 only if the agency or subdivision has substantially changed the
8-60 permit or proposed action since the preliminary finding was issued.
8-61 Sec. 33.2051. AGENCY RULEMAKING ACTIONS. (a) The land
8-62 office shall comply with Sections 33.205(a) and (b) when adopting
8-63 or amending a rule governing the prevention of, response to, or
8-64 remediation of a coastal oil spill.
8-65 (b) The Texas Natural Resource Conservation Commission shall
8-66 comply with Sections 33.205(a) and (b) when adopting or amending a
8-67 rule governing:
8-68 (1) air pollutant emissions;
8-69 (2) on-site sewage disposal systems; or
8-70 (3) underground storage tanks.
9-1 (c) The State Soil and Water Conservation Board shall comply
9-2 with Sections 33.205(a) and (b) when adopting or amending a rule
9-3 governing agricultural or silvicultural nonpoint source pollution.
9-4 (d) An agency shall comply with Sections 33.205(a) and (b)
9-5 when adopting or amending a rule governing an individual action
9-6 described by Section 33.2053.
9-7 (e) The council may not review a proposed rule of the Texas
9-8 Department of Agriculture.
9-9 Sec. 33.2052. CERTIFICATION OF AGENCY RULES; AGENCY ACTIONS
9-10 CONSIDERED CONSISTENT. (a) The council by rule shall establish a
9-11 process by which an agency may submit rules and rule amendments
9-12 described by Section 33.2051 to the council for review and
9-13 certification for consistency with the goals and policies of the
9-14 coastal management program.
9-15 (b) The process must provide that an agency may submit to
9-16 the council consistency review thresholds for the agency's actions
9-17 described in Section 33.2053. After the council certifies that an
9-18 agency's rules are consistent and approves the agency's thresholds,
9-19 the agency's consistency determination under Section 33.205(b) for
9-20 an action is final and is not subject to referral and review,
9-21 except as provided by Section 33.205(d).
9-22 (c) The council by rule shall provide that the council may
9-23 revoke its certification under Subsection (b) if the council finds
9-24 that an agency has:
9-25 (1) implemented certified rules in a manner that
9-26 conflicts with the goals and policies of the coastal management
9-27 program; or
9-28 (2) amended certified rules in a manner inconsistent
9-29 with the goals and policies of the coastal management program.
9-30 Sec. 33.2053. INDIVIDUAL AGENCY OR SUBDIVISION ACTIONS. (a)
9-31 The land office, the School Land Board, or a board for lease of
9-32 state-owned lands shall comply with Sections 33.205(a) and (b) when
9-33 issuing or approving:
9-34 (1) a mineral lease plan of operations;
9-35 (2) a geophysical or geochemical permit;
9-36 (3) a coastal easement;
9-37 (4) a miscellaneous easement;
9-38 (5) a coastal lease;
9-39 (6) a surface lease;
9-40 (7) a structure registration;
9-41 (8) a cabin permit;
9-42 (9) a navigation district lease;
9-43 (10) certification of a local government beach access
9-44 or dune protection plan; or
9-45 (11) an agency or subdivision wetlands mitigation
9-46 bank.
9-47 (b) The Public Utility Commission of Texas shall comply with
9-48 Sections 33.205(a) and (b) when issuing a certificate of
9-49 convenience and necessity.
9-50 (c) The Railroad Commission of Texas shall comply with
9-51 Sections 33.205(a) and (b) when issuing:
9-52 (1) a wastewater discharge permit;
9-53 (2) a waste disposal or storage pit permit; or
9-54 (3) a certification of a federal permit for the
9-55 discharge of dredge or fill material.
9-56 (d) The Texas Transportation Commission shall comply with
9-57 Sections 33.205(a) and (b) when approving:
9-58 (1) an acquisition of a site for the placement or
9-59 disposal of dredge material from, or the expansion, relocation, or
9-60 alteration of, the Gulf Intracoastal Waterway; or
9-61 (2) a transportation construction project or
9-62 maintenance program.
9-63 (e) The Texas Historical Commission and the Antiquities
9-64 Committee shall comply with Sections 33.205(a) and (b) when
9-65 issuing:
9-66 (1) a permit for destruction, alteration, or taking of
9-67 a coastal historic area; or
9-68 (2) a review of a federal undertaking affecting a
9-69 coastal historic area.
9-70 (f) The Texas Natural Resource Conservation Commission shall
10-1 comply with Sections 33.205(a) and (b) when issuing or approving:
10-2 (1) a wastewater discharge permit;
10-3 (2) a permit for a new concentrated animal feeding
10-4 operation located one mile or less from a critical area or coastal
10-5 waters;
10-6 (3) a permit for solid or hazardous waste treatment,
10-7 storage, or disposal;
10-8 (4) creation of a special purpose district or approval
10-9 of bonds for the purpose of construction of infrastructure on
10-10 coastal barriers;
10-11 (5) levee improvement or flood control projects;
10-12 (6) a certification of a federal permit for the
10-13 discharge of dredge or fill material;
10-14 (7) a declaration of an emergency and request for an
10-15 emergency release of water;
10-16 (8) a new permit for an annual appropriation of:
10-17 (A) 5,000 or more acre-feet of water within the
10-18 program boundary; or
10-19 (B) 10,000 or more acre-feet of water outside
10-20 the program boundary but within 200 stream miles of the coast;
10-21 (9) an amendment to a water permit for an increase in
10-22 an annual appropriation of:
10-23 (A) 5,000 or more acre-feet of water within the
10-24 program boundary; or
10-25 (B) 10,000 or more acre-feet of water outside
10-26 the program boundary but within 200 stream miles of the coast; or
10-27 (10) a change in the purpose of use of an annual
10-28 appropriation of water to a more consumptive use of:
10-29 (A) 5,000 or more acre-feet of water within the
10-30 program boundary; or
10-31 (B) 10,000 or more acre-feet of water outside
10-32 the program boundary but within 200 stream miles of the coast.
10-33 (g) The council may not review an action of the Texas
10-34 Natural Resource Conservation Commission described by Subsections
10-35 (f)(8)-(10) taken to implement a part of the Trans-Texas Water
10-36 Program that the Trans-Texas Water Program Policy Management
10-37 Committee has found to be consistent with the goals and policies of
10-38 the coastal management program. To find that the program is
10-39 consistent with the goals and policies, the Trans-Texas Water
10-40 Program Policy Management Committee must:
10-41 (1) include at least three members of the council, or
10-42 representatives of those members, as voting members of the
10-43 committee; and
10-44 (2) make the finding by a majority vote of those
10-45 members or their representatives.
10-46 (h) The Parks and Wildlife Department shall comply with
10-47 Sections 33.205(a) and (b) when issuing or approving:
10-48 (1) an oyster lease;
10-49 (2) a permit for taking, transporting, or possessing
10-50 threatened or endangered species;
10-51 (3) a permit for disturbing marl, sand, shell, or
10-52 gravel on state-owned land; or
10-53 (4) development by a person other than the Parks and
10-54 Wildlife Department that requires the use or taking of any public
10-55 land in a state park, wildlife management area, or preserve.
10-56 (i) A subdivision shall comply with Sections 33.205(a) and
10-57 (b) when issuing a dune protection permit or beachfront
10-58 construction certificate that authorizes:
10-59 (1) construction activity that is located 200 feet or
10-60 less landward of the line of vegetation and that results in the
10-61 disturbance of more than 7,000 square feet of dunes or dune
10-62 vegetation;
10-63 (2) construction activity that results in the
10-64 disturbance of more than 7,500 cubic yards of dunes;
10-65 (3) a coastal shore protection project undertaken on a
10-66 gulf beach or 200 feet or less landward of the line of vegetation
10-67 and that affects more than 500 linear feet of gulf beach; or
10-68 (4) a closure, relocation, or reduction in existing
10-69 public beach access or public beach access designated in an
10-70 approved local government beach access plan, other than for a short
11-1 term.
11-2 (j) An action to renew, amend, or modify an existing permit,
11-3 certificate, lease, easement, approval, or other action is not an
11-4 action under this section if the action is taken under a rule that
11-5 the council has certified under Section 33.2052 and:
11-6 (1) for a wastewater discharge permit, if the action
11-7 is not a major permit modification that would:
11-8 (A) increase pollutant loads to coastal waters;
11-9 or
11-10 (B) result in relocation of an outfall to a
11-11 critical area;
11-12 (2) for solid, hazardous, or nonhazardous waste
11-13 permits, if the action is not a Class III modification under rules
11-14 of the Texas Natural Resource Conservation Commission; or
11-15 (3) for any other action, if the action:
11-16 (A) only extends the period of the existing
11-17 authorization and does not authorize new or additional work or
11-18 activity; or
11-19 (B) is not directly relevant to Sections
11-20 33.205(a) and (b).
11-21 (k) The council shall establish a program boundary to limit
11-22 the geographic area in which the requirements of Sections 33.205(a)
11-23 and (b) apply. The boundary is the coastal facility designation
11-24 line as defined by Appendix 1 to 31 TAC Section 19.2 as that
11-25 appendix existed on the effective date of this section, as modified
11-26 by Section 33.203(7). Except as provided by Subsections
11-27 (f)(8)-(10), this subchapter does not apply to an agency action
11-28 authorizing an activity outside the program boundary.
11-29 Sec. 33.206. COUNCIL ACTION. (a) A proposed action is
11-30 consistent with the goals and policies of the coastal management
11-31 program and approved by the council unless, on the affirmative vote
11-32 of at least two-thirds of the members of the council, the council
11-33 determines the action to be inconsistent with the coastal
11-34 management program and protests <After reviewing an action of a
11-35 state agency or subdivision, the council may affirm or protest> the
11-36 action <of the state agency or subdivision>.
11-37 (b) If the council protests the proposed action, the council
11-38 shall report its findings on <remand> the matter to the <state>
11-39 agency or subdivision. The report <remand> shall specify how the
11-40 proposed action is inconsistent <include findings on
11-41 inconsistencies> with the goals and policies of the coastal
11-42 management program <plan> and <may> include specific
11-43 recommendations of the council regarding how the proposed action
11-44 may be modified or amended to make it consistent with the program.
11-45 Before the 21st day after the date the agency or subdivision
11-46 receives the report, the<. On remand, the state> agency or
11-47 subdivision shall review the findings and recommendations and
11-48 determine whether to modify or amend the proposed action to make it
11-49 consistent with the goals and policies of the coastal management
11-50 program and <plan. Should the agency or subdivision decide not to
11-51 amend its action as recommended by the council, it> shall notify
11-52 the council of its <that> decision.
11-53 (c) If an agency or subdivision does not modify or amend a
11-54 proposed action to be consistent with the goals and policies of the
11-55 coastal management program, the council shall request the attorney
11-56 general to issue an opinion on the consistency of the proposed
11-57 action with the coastal management program. The agency or
11-58 subdivision is stayed from taking the proposed action until the
11-59 attorney general issues the opinion. The attorney general shall
11-60 issue an opinion before the 26th day after the date the council
11-61 requests the opinion. <The state agency's or subdivision's action
11-62 on remand is subject to review by the council as provided in
11-63 Section 33.205 of this code. The only basis on which the council
11-64 may reverse a decision of an agency or subdivision is that the
11-65 action is inconsistent with the goals and policies of the coastal
11-66 management plan.>
11-67 (d) The council shall adopt procedural rules for the review
11-68 of federal actions, activities, and outer continental shelf plans
11-69 that incorporate the provisions of federal regulations governing
11-70 those reviews. The rules shall provide that the chair or any three
12-1 members may request additional information from a federal agency or
12-2 additional time for review as provided by the federal regulations.
12-3 (e) The council shall review any federal action, activity,
12-4 or outer continental shelf plan that any three members of the
12-5 council agree presents a significant unresolved issue regarding
12-6 consistency with the goals and policies of the coastal management
12-7 program and place the matter on the agenda of a meeting of <the
12-8 commissioner submits to> the council for review.
12-9 (f) If an activity requiring an agency or subdivision action
12-10 described by Section 33.2053 that falls below thresholds in effect
12-11 under Section 33.2052 also requires an equivalent federal permit or
12-12 license, the council may only determine the agency or subdivision
12-13 action's consistency. If an activity requiring an agency or
12-14 subdivision action above thresholds requires an equivalent federal
12-15 permit or license, the council may determine the consistency of the
12-16 agency or subdivision action or the federal license or permit, but
12-17 not both. The determination regarding the consistency of an action
12-18 made by the council under this subsection constitutes the state's
12-19 determination regarding consistency of the equivalent agency or
12-20 subdivision action or federal action.
12-21 (g) If, after review, the council finds a proposed federal
12-22 agency action or activity or outer continental shelf plan is
12-23 inconsistent with <does not comply with goals and policies of> the
12-24 coastal management program <plan>, and the federal agency does not
12-25 modify the action, activity, or outer continental shelf plan to
12-26 achieve consistency with the program, the governor, with the
12-27 assistance of the chair of the council, may seek mediation of the
12-28 matter in accordance with federal law <refer the matter to any
12-29 federal official authorized to review or act on the matter and may
12-30 pursue resolution of the matter with the federal official>.
12-31 (h) The council may not protest a proposed action by an
12-32 agency or subdivision pertaining to an application filed with that
12-33 agency or subdivision before the date the coastal management
12-34 program is adopted.
12-35 Sec. 33.207. COUNCIL RECOMMENDATIONS. In addition to the
12-36 report required by Section 33.206, the council:
12-37 (1) may periodically submit recommendations to an
12-38 agency or subdivision designed to encourage the agency or
12-39 subdivision to carry out its functions in a manner consistent with
12-40 the coastal management program, including recommendations for
12-41 methods to simplify governmental procedures and changes in
12-42 applicable rules or statutes; and
12-43 (2) shall report to the legislature on:
12-44 (A) recommended statutory changes needed to make
12-45 more effective and efficient use of public funds and provide for
12-46 more effective and efficient management of coastal natural resource
12-47 areas, including recommendations on methods to simplify
12-48 governmental procedures; and
12-49 (B) agency or subdivision actions that are not
12-50 consistent with the coastal management program. <JUDICIAL REVIEW.
12-51 A person aggrieved by a final action of the council may appeal to a
12-52 district court under the Administrative Procedure and Texas
12-53 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).>
12-54 Sec. 33.208. ENFORCEMENT. (a) The agency or subdivision
12-55 with jurisdiction over a proposed action shall enforce the
12-56 provisions of the coastal management program.
12-57 (b) If the attorney general issues an opinion under Section
12-58 33.206(c) that a proposed agency or subdivision action is
12-59 inconsistent with the coastal management program and the agency or
12-60 subdivision fails to implement the council's recommendation
12-61 regarding the action, the <The> attorney general<, at the request
12-62 of the council,> shall file suit in a district court of Travis
12-63 County <or in the county in which the violation occurs a suit> to
12-64 enforce this subchapter. The court shall consider the attorney
12-65 general's opinion in determining whether the proposed action is
12-66 consistent with the coastal management program.
12-67 (c) Notwithstanding the request of an opinion from, or the
12-68 filing of suit by, the attorney general, the council and the agency
12-69 or subdivision may enter into a settlement agreement with regard to
12-70 the proposed action. If the council and the agency or subdivision
13-1 enter into a settlement agreement, the council may rescind its
13-2 request for an opinion from the attorney general.
13-3 Sec. 33.209. PROHIBITION ON SPECIAL AREA MANAGEMENT PLANS.
13-4 The council may not develop or approve a special area management
13-5 plan, including a plan for an area designated under the national
13-6 estuary program.
13-7 Sec. 33.210. PRIVATE PROPERTY. The requirements of this
13-8 subchapter may not be applied in a manner that would result in the
13-9 taking, damage, or destruction of property without adequate
13-10 compensation.
13-11 Sec. 33.211. SUNSET PROVISION. The Coastal Coordination
13-12 Council is subject to Chapter 325, Government Code (Texas Sunset
13-13 Act). Unless continued in existence as provided by that chapter,
13-14 the council is abolished and this subchapter expires September 1,
13-15 1999.
13-16 SECTION 5. As soon as possible on or after the effective
13-17 date of this Act, the governor shall appoint to the Coastal
13-18 Coordination Council:
13-19 (1) a city or county elected official who resides in
13-20 the coastal area, if a vacancy occurs in that position on the
13-21 council;
13-22 (2) a resident from the coastal area, if a vacancy
13-23 occurs in that position on the council;
13-24 (3) an owner of a business located in the coastal area
13-25 who resides in the coastal area; and
13-26 (4) a representative of agriculture.
13-27 SECTION 6. The legislature intends that, subject to Chapter
13-28 33, Natural Resources Code, as amended by this Act, the coastal
13-29 management program submitted by the governor under 16 U.S.C.
13-30 Section 1455 on or after the effective date of this Act be as
13-31 similar to the coastal management program submitted before the
13-32 effective date of this Act as is practicable.
13-33 SECTION 7. If the secretary of the United States Department
13-34 of Commerce and the administrator of the United States
13-35 Environmental Protection Agency find Texas has failed to submit an
13-36 approvable coastal nonpoint pollution control program as required
13-37 by 16 U.S.C. Section 1455b, which would result in the withholding
13-38 of money under 16 U.S.C. Sections 1455b(c)(3) and (4), the governor
13-39 shall withdraw any coastal management program developed under
13-40 Chapter 33, Natural Resources Code, that has been:
13-41 (1) approved by the secretary of the United States
13-42 Department of Commerce; or
13-43 (2) submitted to the secretary of the United States
13-44 Department of Commerce for approval under 16 U.S.C. Section 1455.
13-45 SECTION 8. The importance of this legislation and the
13-46 crowded condition of the calendars in both houses create an
13-47 emergency and an imperative public necessity that the
13-48 constitutional rule requiring bills to be read on three several
13-49 days in each house be suspended, and this rule is hereby suspended,
13-50 and that this Act take effect and be in force from and after its
13-51 passage, and it is so enacted.
13-52 * * * * *