CPC C.S.H.B. 190 75(R)BILL ANALYSIS LAND & RESOURCE MANAGEMENT C.S.H.B. 190 By: Turner, Bob 5-1-97 Committee Report (Substituted) BACKGROUND During the interim of the 73rd Legislature, the House Natural Resources Committee formed a Subcommittee on Mitigation of Property Rights, which held a series of meetings around the state. Members heard testimony from landowners opposed to the ability of a state or a political subdivision to condemn private property to mitigate for damage done to endangered species habitat or wetlands in the course of a public works project. Under the federal Endangered Species Act and the Clean Water Act, if a public works project or any project will result in damage to endangered species habitat or to a wetland, the entity performing the project must mitigate for the damage. One way to mitigate is to condemn property which has similar habitat or wetlands and set that land aside. Since rural landowners have most of the remaining unspoiled and undeveloped land which might be used for this purpose, their good stewardship makes them a perfect target for the kind of property which would satisfy federal mitigation requirements. PURPOSE CSHB 190 will prevent a state or political subdivision with eminent domain authority from condemning property for the purpose of mitigation. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends the heading of subchapter A, Chapter 21, Property Code by striking "Jurisdiction" and inserting "General Provisions". SECTION 2. Amends subchapter A, Chapter 21, Property Code, by adding Sec. 21.004 as follows: Sec. 21.004. CONDEMNATION PROHIBITED IN CERTAIN CIRCUMSTANCES. (a) States that this section applies to property located in whole or in part, in a county with a population of 50,000 or less. (b) Provides that the state or a political subdivision of the state with eminent domain authority may not condemn property, in whole or in part, in counties with population of less than 50,000 for required federal mitigation for endangered species and wetlands impacts, unless: the condemnation is used as the last resort following attempts to develop mitigation by conservation easements or through mitigation banking; or the condemnation involves a willing seller who objects only to the appraised value. (c) Provides that this section controls over any other statutory grant of authority to condemn property for purposes of mitigation. (d) Defines "mitigation" as compensatory mitigation, as defined by 40 CFR 1508.20, required by federal regulations for endangered species and wetlands impacts. SECTION 3. Applicability Clause: applies only to property for which a petition has not been filed. SECTION 4. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE CSHB 190 provides condemnation or property located in whole or in part, in a county with a population of 50,000 or less. The original legislation did not contain this provision. CSHB 190 provides the state or a political subdivision of the state with eminent domain authority may not condemn property, in whole or in part, in counties with population of less than 50,000 for required federal mitigation for endangered species and wetlands impacts, unless: the condemnation is used as the last resort following attempts to develop mitigation by conservation easements or through mitigation banking; or the condemnation involves a willing seller who objects only to the appraised value. The original legislation did not contain this provision. CSHB 190 provides that this section controls over any other statutory grant of authority to condemn property for purposes of mitigation. The original legislation did not contain this provision. CSHB 190 defines "mitigation" as compensatory mitigation, as defined by 40 CFR 1508.20, required by federal regulations for endangered species and wetlands impacts. The original legislation did not contain this definition.