By: Truan S.B. No. 648
A BILL TO BE ENTITLED
AN ACT
1-1 relating to limiting the authority of the Coastal Coordination
1-2 Council to review the actions of agencies and subdivisions,
1-3 defining the scope of the coastal management program, and adding
1-4 representatives of the State Soil and Water Conservation Board and
1-5 the Texas Water Development Board to the Coastal Coordination
1-6 Council.
1-7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-8 SECTION 1. Subchapter F, Chapter 33, Natural Resources Code,
1-9 is amended to read as follows:
1-10 SUBCHAPTER F. COASTAL COORDINATION
1-11 Sec. 33.201. Short Title. This subchapter may be cited as
1-12 the Coastal Coordination Act.
1-13 Sec. 33.202. Policy. (a) It is declared to be the policy
1-14 of this state to make more effective and efficient use of public
1-15 funds and provide for more effective and efficient management of
1-16 coastal natural resource areas, and to better serve the people of
1-17 Texas by:
1-18 (1) continually reviewing the principal coastal
1-19 problems of state concern, coordinating the performance of
1-20 agencies, subdivisions, and programs affecting coastal natural
1-21 resource areas, and <the> coordinating the measures required to
1-22 resolve identified coastal problems; and
1-23 (2) making all coastal management processes more
2-1 visible, accessible, coherent, consistent, and accountable to the
2-2 people of Texas.
2-3 (b) It is declared to be the policy of this state that the
2-4 chief executive officer of the state should represent the State of
2-5 Texas in discussions and negotiations with the federal government
2-6 with regard to the effect of federal actions on the coastal
2-7 programs and policies of the State of Texas.
2-8 Sec. 33.203. Definitions. In this subchapter:
2-9 (1) "Coastal natural resource areas" means coastal
2-10 barriers, coastal historic areas, coastal parks, wildlife
2-11 management areas, preserves, coastal shore areas, coastal wetlands,
2-12 critical dune areas, critical erosion areas, Gulf beaches, hard
2-13 substrate reefs, oyster reefs, private submerged lands, special
2-14 hazard areas, state submerged lands, submerged aquatic vegetation,
2-15 tidal sand and mud flats, waters of the open Gulf of Mexico, and
2-16 waters under tidal influence <areas designated in the coastal
2-17 management plan as requiring special management, including coastal
2-18 public submerged lands, public beaches, washover areas on
2-19 peninsulas, mainland shorelines, and barrier islands, protected
2-20 sand dune complexes on the Gulf shoreline, and parks, historic
2-21 areas, wildlife refuges, preserves, and other such natural resource
2-22 management areas> located within the coastal area <and designated
2-23 in the coastal management plan>.
2-24 (2) "Critical areas" means coastal wetlands, oyster
2-25 reefs, hard substrate reefs, submerged aquatic vegetation, and
3-1 tidal sand and mud flats.
3-2 (3) "Council" means the Coastal Coordination Council,
3-3 which shall consist of the commissioner, the attorney general, the
3-4 chair of the Parks and Wildlife Commission, the chair of the Texas
3-5 Natural Resource Conservation <Water> Commission, the chair of the
3-6 Texas Water Development Board, a member of the State Soil and Water
3-7 Conservation Board, a member of the Railroad Commission of Texas,
3-8 and one city or county elected official and one resident from the
3-9 coastal area appointed by the governor for two-year terms.
3-10 (4) <(3)> "Agency or subdivision" means any agency,
3-11 department, board, commission, subdivision, body politic, or other
3-12 government entity or unit.
3-13 (5) <(4)> "Coastal management program <plan>" means an
3-14 ongoing, comprehensive program for coordinating agencies' and
3-15 subdivisions' management of activities that may adversely affect
3-16 coastal natural resource areas for the purpose of continually
3-17 improving management of those activities as provided in Section
3-18 33.202 <the plan as developed by the commissioner under Section
3-19 33.052> of this code.
3-20 Sec. 33.204. ADMINISTRATION OF COASTAL MANAGEMENT PROGRAM
3-21 <ADOPTION OF COASTAL GOALS AND POLICIES; REVIEW>. (a) The council
3-22 shall promulgate rules adopting the goals and policies of the
3-23 coastal management program. The goals and policies may not require
3-24 an agency or subdivision to perform an action which would exceed
3-25 the constitutional or statutory authority of the agency or
4-1 subdivision. The council shall study, regularly request public
4-2 comment on, and coordinate responses to <plan and make studies of>
4-3 problems and issues affecting the management of coastal natural
4-4 resource areas as provided in the program <plan>.
4-5 (b) The council shall meet once in each calendar quarter.
4-6 The commissioner is chair of the council and may convene special
4-7 meetings at other times. For each matter to be reviewed by the
4-8 council under Section 33.205 of this code, the governor shall
4-9 designate a local elected official from a county directly affected
4-10 by the matter under review. The local official shall serve as a
4-11 nonvoting participant on the council for purposes of reviewing and
4-12 acting on that matter only.
4-13 (c) In conducting reviews under Section 33.205 of this code,
4-14 the council shall receive and consider the oral or written
4-15 testimony of any person regarding the goals and policies of the
4-16 coastal management program <plan>. The council may reasonably limit
4-17 the length and format of the testimony and the time at which it
4-18 will be received. Notice of the period during which the testimony
4-19 will be received shall be published in the Texas Register and in a
4-20 newspaper of general circulation in each county directly affected
4-21 by the matter under review before the commencement of that period.
4-22 The council shall consider only the record before the agency or
4-23 subdivision involved in the matter under review, the agency's or
4-24 subdivision's findings, applicable laws and rules, any additional
4-25 information provided by that agency or subdivision, and public
5-1 testimony under this subsection, provided that if the agency or
5-2 subdivision did not hold a hearing, make a record, or make
5-3 findings, the council may hold a hearing and make findings
5-4 necessary to a complete and thorough review.
5-5 (d) The land office shall assist the council in carrying out
5-6 its duties. The council members shall not receive compensation for
5-7 services but may receive reimbursement for actual and necessary
5-8 expenses. The land office shall, in coordination with other
5-9 agencies and subdivisions, prepare an annual report reviewing the
5-10 effectiveness of the coastal management program. The land office
5-11 shall submit each report to the council for approval and shall
5-12 submit each of the previous two years' reports to the legislature
5-13 prior to the beginning of each legislative session.
5-14 Sec. 33.205. CONSISTENCY WITH GOALS AND POLICIES;
5-15 PREREQUISITES <STANDARDS; SUBMISSION> FOR REVIEW. (a) When
5-16 proposing or adopting any of the rules listed in Subsection (c) of
5-17 this section or taking any of the individual actions listed in
5-18 Subsection (d) of this section, <All actions taken or authorized
5-19 by> state agencies and subdivisions <that may adversely affect
5-20 coastal natural resource areas, including discharges and
5-21 withdrawals that may significantly affect water quality in state
5-22 waters subject to tidal influence,> must comply with the goals and
5-23 policies of the coastal management program <plan>.
5-24 (b) State <In developing rules and policies applicable in
5-25 coastal areas and performing actions subject to the requirements of
6-1 this subsection, state> agencies and subdivisions subject to the
6-2 requirements of Subsection (a) of this section shall take into
6-3 account the goals and policies of the coastal management program
6-4 and shall certify that the rule or action is consistent with those
6-5 goals and policies <plan>.
6-6 (c) Agencies must comply with Subsection (a) of this section
6-7 when proposing or adopting one of the following rules or amendments
6-8 to rules:
6-9 (1) a rule of the General Land Office governing the
6-10 prevention of, response to, and remediation of coastal oil spills;
6-11 (2) a rule of the Texas Natural Resource Conservation
6-12 Commission governing:
6-13 (A) emissions of air pollutants;
6-14 (B) on-site sewage disposal systems; and
6-15 (C) underground storage tanks;
6-16 (3) a rule of the State Soil and Water Conservation
6-17 Board governing agricultural and silvicultural nonpoint source
6-18 pollution;
6-19 (4) a rule governing individual actions listed in
6-20 Subsection (d) of this section.
6-21 (d) Agencies and subdivisions must comply with Subsection
6-22 (a) of this section when taking one of the following actions:
6-23 (1) an action of the General Land Office, the School
6-24 Land Board, or the boards for lease of state-owned lands
6-25 concerning:
7-1 (A) a mineral lease plan of operations;
7-2 (B) a geophysical and geochemical permit;
7-3 (C) a coastal easement;
7-4 (D) miscellaneous easements;
7-5 (E) a surface lease;
7-6 (F) a coastal lease;
7-7 (G) a structure registration;
7-8 (H) a cabin permit;
7-9 (I) a navigation district lease;
7-10 (J) certification of a local government beach
7-11 access and dune protection plan; or
7-12 (K) approval of a wetland mitigation bank;
7-13 (2) an action of the Public Utility Commission of
7-14 Texas concerning a certificate of convenience and necessity;
7-15 (3) an action of the Railroad Commission of Texas
7-16 concerning:
7-17 (A) a wastewater discharge permit;
7-18 (B) a waste disposal or storage pit permit; or
7-19 (C) certification of a federal permit for
7-20 dredging and filling activities;
7-21 (4) an action of the Texas Department of
7-22 Transportation concerning:
7-23 (A) acquisition of dredged material disposal
7-24 sites for the Gulf Intracoastal Waterway and for channel expansion,
7-25 relocation, or alteration; or
8-1 (B) transportation planning, construction, and
8-2 maintenance;
8-3 (5) an action of the Texas Historical Commission or
8-4 the Texas Antiquities Committee concerning:
8-5 (A) a permit for destruction, alteration, or
8-6 taking of state archaeological landmarks; or
8-7 (B) a review of federal undertakings affecting
8-8 historic sites;
8-9 (6) an action of the Texas Natural Resource
8-10 Conservation Commission concerning:
8-11 (A) a municipal and industrial wastewater
8-12 discharge permit;
8-13 (B) a wastewater discharge permit for a new
8-14 concentrated animal feeding operation within one mile of a critical
8-15 area or coastal waters;
8-16 (C) a water rights permit over 2,500 acre-feet
8-17 per year inside the coastal area or over 5,000 acre-feet per year
8-18 outside the coastal area;
8-19 (D) a solid and hazardous waste treatment,
8-20 storage, and disposal permit;
8-21 (E) creation of a special-purpose district or
8-22 approval of bonds for infrastructure on a coastal barrier;
8-23 (F) approval of levee improvements or another
8-24 flood control project;
8-25 (G) certification of a federal permit for
9-1 dredging and filling activities; or
9-2 (H) a declaration of emergency and request for
9-3 an emergency release of water;
9-4 (7) an action of the Parks and Wildlife Department
9-5 concerning:
9-6 (A) a permit or lease for transplanting or
9-7 harvesting oysters;
9-8 (B) a permit for taking, transporting, or
9-9 possessing threatened or endangered species;
9-10 (C) a permit for disturbing marl, sand, shell,
9-11 or gravel on state-owned lands; or
9-12 (D) approval of development in state parks,
9-13 wildlife management areas, and preserves; or
9-14 (8) an action of a subdivision concerning:
9-15 (A) a dune protection permit; or
9-16 (B) a beachfront construction certificate,
9-17 provided that the provisions of this subchapter shall apply to an
9-18 action listed in this subdivision only if they authorize:
9-19 (i) construction activity located within
9-20 the first 200 feet landward of the line of vegetation which results
9-21 in the disturbance of more than 7,000 square feet of dunes or dune
9-22 vegetation;
9-23 (ii) construction activity which results
9-24 in the disturbance of more than 7,500 cubic yards of dunes;
9-25 (iii) any coastal shore protection project
10-1 undertaken pursuant to Chapter 15, Title 31, Texas Administrative
10-2 Code, or within 200 feet landward of the line of vegetation
10-3 affecting more than 500 linear feet of beach on the shore of the
10-4 Gulf of Mexico; or
10-5 (iv) a closure, relocation, or reduction
10-6 in existing public beach access or public beach access designated
10-7 in an approved beach access plan, other than a short-term closure,
10-8 relocation, or reduction.
10-9 (e) An action to renew, amend, or modify an existing permit,
10-10 certificate, lease, easement, approval, or other form of
10-11 authorization shall not be considered an action subject to the
10-12 coastal management program if the action is taken pursuant to a
10-13 rule that the council has certified as consistent under Subsection
10-14 (h) of this section and:
10-15 (1) for wastewater discharge permits, if the action is
10-16 not a major permit modification that would increase pollutant loads
10-17 to coastal waters or would result in relocation of an outfall to a
10-18 critical area;
10-19 (2) for solid, hazardous, or nonhazardous waste
10-20 permits, if the action is not a Class III modification as defined
10-21 in Texas Natural Resource Conservation Commission rules; or
10-22 (3) for any other action, if the action only extends
10-23 the time period of the existing authorization without authorizing
10-24 new or additional work or activities or is not otherwise directly
10-25 relevant to the goals and policies of the coastal management
11-1 program.
11-2 (f) <(b)> The council shall review any action listed in
11-3 Subsection (d) of this section if:
11-4 (1) the agency or subdivision has taken the action;
11-5 (2) a person eligible to file a request for referral
11-6 under Subdivision (4) of this subsection raises issues regarding
11-7 the action's consistency with the goals and policies of the coastal
11-8 management program during the agency's or subdivision's
11-9 consideration of the action;
11-10 (3) consistency review thresholds for the agency are
11-11 in effect under Subsection (h) of this section and:
11-12 (A) the action is one for which a formal hearing
11-13 under Chapter 2001, Government Code (Administrative Procedure Act),
11-14 was available to contest the agency's determination of consistency
11-15 with the goals and policies of the coastal management program for:
11-16 (i) an action exceeding the applicable
11-17 thresholds, if the agency's consistency determination was contested
11-18 in a formal hearing or an alternative dispute resolution process;
11-19 or
11-20 (ii) an action not exceeding the
11-21 applicable thresholds, if the action may adversely affect a
11-22 critical area, critical dune area, coastal park, wildlife
11-23 management area, or preserve, or beach on the shore of the Gulf of
11-24 Mexico, and a state agency contested the agency's consistency
11-25 determination in a formal hearing; or
12-1 (B) the action is one for which a formal hearing
12-2 under Chapter 2001, Government Code (Administrative Procedure Act),
12-3 was not available to contest the agency's determination of
12-4 consistency with the goals and policies of the coastal management
12-5 program and the action exceeds the applicable thresholds;
12-6 (4) a request for referral is filed with the council
12-7 by a council member, a party to the agency's formal hearing or
12-8 alternative dispute resolution process, a person who participated
12-9 in an agency's formal hearing as allowed by agency rules in a
12-10 capacity other than as a witness, or, for an action for which a
12-11 formal hearing under Chapter 2001, Government Code (Administrative
12-12 Procedure Act), was not available, a person who filed written
12-13 comments with the agency before the action was taken; or
12-14 (5) <subject to the requirements of Subsection (a) of
12-15 this section that > the commissioner or <submits to the council for
12-16 review. The council shall review any action subject to the
12-17 requirements of Subsection (a) of this section that is submitted to
12-18 the council by> any three regular members of the council refer the
12-19 action to the council<.>
12-20 <(c) An action must be referred to the council> within 30
12-21 days of the date the agency or subdivision took the action <it
12-22 becomes final>.
12-23 (g) The council must consider and act on a referral <the
12-24 matter> within 70 days of the date the agency or subdivision took
12-25 the action <90 days of referral>.
13-1 (h) The council shall in its procedural rules establish a
13-2 process by which an agency may submit its rules governing actions
13-3 listed in Subsection (d) of this section to the council for review
13-4 and certification for consistency with the goals and policies of
13-5 the coastal management program. The process shall provide that an
13-6 agency may also submit to the council consistency review thresholds
13-7 for those actions. On the council's certification that the
13-8 agency's rules are consistent and its approval of the agency's
13-9 consistency review thresholds, the agency's actions below the
13-10 thresholds shall be presumed to be consistent with the goals and
13-11 policies of the coastal management program and shall not be subject
13-12 to council review, remand, or reversal, except for those actions
13-13 described in Subsection (f)(3)(B) of this section. The council
13-14 shall also include in its procedural rules a provision whereby the
13-15 council may revoke its certification of the consistency of an
13-16 agency's rules if the agency fails to implement, enforce, or adhere
13-17 to the goals and policies of the coastal management program. Prior
13-18 to the certification of rules and approval of thresholds and
13-19 subsequent to any revocation of such certification or approval, all
13-20 the agency's actions listed in Subsection (d) of this section shall
13-21 be subject to council referral, review, remand, and reversal.
13-22 Sec. 33.206. COUNCIL ACTION. (a) After reviewing an action
13-23 of a state agency or subdivision, the council may affirm or protest
13-24 the action of the state agency or subdivision.
13-25 (b) If the council protests the action, the council shall
14-1 remand the matter to the state agency or subdivision. The remand
14-2 shall include findings on inconsistencies with the goals and
14-3 policies of the coastal management program <plan> and may include
14-4 recommendations of the council. On remand, the state agency or
14-5 subdivision shall modify or amend the action to make it consistent
14-6 with the goals and policies of the coastal management program
14-7 <plan>. Should the agency or subdivision decide not to amend its
14-8 action as recommended by the council, it shall notify the council
14-9 of that decision. The council may provide in its remand that the
14-10 agency or subdivision action will be automatically reversed without
14-11 further council action if the agency or subdivision does not
14-12 reconsider its action in light of the council's recommendations
14-13 within 90 days after taking the action.
14-14 (c) The state agency's or subdivision's action on remand is
14-15 subject to review by the council as provided in Section 33.205 of
14-16 this code. The only basis on which the council may reverse a
14-17 decision of an agency or subdivision is that the action is
14-18 inconsistent with the goals and policies of the coastal management
14-19 program <plan>. The council's decision to reverse an action
14-20 renders the action void.
14-21 (d) Pending council review of an individual action, no
14-22 person may conduct activities authorized by the action that would
14-23 irreparably alter or damage coastal natural resource areas
14-24 identified in the goals and policies of the coastal management
14-25 program that are applicable to that action, except as allowed by
15-1 Section 2001.054, Government Code.
15-2 (e) The council shall not apply the goals and policies of
15-3 the coastal management program in a manner which would result in
15-4 the taking, damage, or destruction of property, without adequate
15-5 compensation, by the council.
15-6 (f) The council shall review any federal action the
15-7 commissioner submits to the council for review. If, after review,
15-8 the council finds a federal action does not comply with goals and
15-9 policies of the coastal management program <plan>, the council may
15-10 refer the matter to any federal official authorized to review or
15-11 act on the matter and may pursue resolution of the matter with the
15-12 federal official.
15-13 Sec. 33.207. JUDICIAL REVIEW. A person aggrieved by a final
15-14 action of the council may appeal to a district court under Chapter
15-15 2001, Government Code (<the> Administrative Procedure <and Texas
15-16 Register> Act <(Article 6252-13a, Vernon's Texas Civil Statutes>).
15-17 Sec. 33.208. ENFORCEMENT. The attorney general, at the
15-18 request of the council, shall file in a district court of Travis
15-19 County or in the county in which the violation occurs a suit to
15-20 enforce this subchapter or the rules adopted under this subchapter
15-21 against an agency or subdivision to prevent or remedy a violation
15-22 or failure to comply with this subchapter or those rules.
15-23 Sec. 33.209. VOLUNTARY SPECIAL AREA MANAGEMENT PLANS.
15-24 (a) The council may adopt rules containing goals and policies
15-25 applicable only to a special area of the coast. The rules shall
16-1 constitute the goals and policies of the coastal management program
16-2 for that special area in place of the generally applicable goals
16-3 and policies. The boundaries of any such area shall be included in
16-4 the rules.
16-5 (b) Rules applicable to a special area under this section
16-6 shall not apply to any real property whose owner does not expressly
16-7 and affirmatively consent in writing to the application of those
16-8 rules to the owner's real property.
16-9 SECTION 2. Sections 33.052, 33.053, 33.054, and 33.055,
16-10 Natural Resources Code, are repealed.
16-11 SECTION 3. The importance of this legislation and the
16-12 crowded condition of the calendars in both houses create an
16-13 emergency and an imperative public necessity that the
16-14 constitutional rule requiring bills to be read on three several
16-15 days in each house be suspended, and this rule is hereby suspended,
16-16 and that this Act take effect and be in force from and after its
16-17 passage, and it is so enacted.