SLC C.S.H.B. 1609 75(R) BILL ANALYSIS LAND & RESOURCE MANAGEMENT C.S.H.B. 1609 By: Turner, Bob 5-2-97 Committee Report (Substituted) BACKGROUND Under the federal Endangered Species Act (ESA), when a landowner's property is home or could be home to an endangered species, the landowner is prohibited from using that land for certain purposes without permission from the federal government. To obtain permission, the landowner must apply to the U. S. Fish and Wildlife Service (USFWS) for an "incidental take" permit known as a Section 10(a) permit, named for that section of the ESA. The application process, however, is complicated and prohibitively expensive for most landowners. When endangered species or their habitat affect a number of landowners, it can be beneficial for the landowners to work together to develop a regional habitat conservation plan (RHCP) which, if approved by the USFWS, will result in the grant of a regional Section 10(a) permit. The purpose of the regional permit is to make it easier and ostensibly less expensive for each of the affected landowners to gain permission to use their land, by qualifying under an "umbrella" 10(a) permit. This has not been the case in Texas. In 1996, the City of Austin and Travis County obtained a Section 10(a) permit under the ESA, after having completed an RHCP known as the Balcones Conservation Plan (BCP). The BCP was more than seven (7) years in the making, and has been billed by the U.S. Department of the Interior as a model for the nation. Unfortunately, this model is less fair to the landowners who should benefit from an RHCP. PURPOSE The purpose of CSHB 1609 is to establish guidelines for governmental entities seeking to create future RHCPs and habitat conservation plans (HCPs) and for entering into conservation agreements with the federal government. The bill's purpose also is to provide legal remedies for landowners whose property has been targeted for acquisition as preserve land for the BCP, by establishing a deadline within which the targeted property must be acquired. 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. Designates Sec. 83.001 through 843.004 Parks and Wildlife Code as Subchapter A, and adds a heading to Subchapter A as follows: FEDERAL-STATE AGREEMENTS. SECTION 2. Adds a new Sec. 83.005 to Subchapter A, Chapter 83, Parks and Wildlife Code. Subsection (a) provides that any conservation agreement between a political subdivision of the state and the U.S. Department of the Interior must be developed in consultation with the Texas Parks and Wildlife Department and approved by the Commission. Subsection (b) defines "conservation agreement" for the purposes of this section. SECTION 3. Adds a new Subchapter B to Chapter 83, Parks and Wildlife Code, entitled HABITAT PROTECTION BY POLITICAL SUBDIVISIONS. Sec. 83.011. DEFINITIONS. Defines biological advisory team, endangered species, federal act, governmental entity, habitat conservation plan, habitat preserve, harm, land development standards, mitigation fee, plan participant, and regional habitat conservation plan. Sec. 83.012. PURPOSE. Outlines the specific purposes of Subchapter B as follows: To establish the requirements for and authority of a governmental entity to regulate wildlife through RHCPs or HCPs; to encourage the development of HCPs rather than RHCPs; to coordinate land set asides pursuant to local, state and federal laws or regulations in as efficient a manner as possible; to prohibit the devaluation of real property; to encourage a rapid transition from an RHCP to an HCP. Sec. 83.013. AUTHORITY OF DEPARTMENT OR POLITICAL SUBDIVISION. (a) Authorizes the Texas Parks and Wildlife Department or a political subdivision to participate in the study and preparation for and creation of an HCP. (b) Authorizes the same for an RHCP, subject to the provisions set forth in this subchapter. (c) Authorizes a political subdivision, including a municipality acting within its corporate limits or its extraterritorial jurisdiction, to purchase land, easements or leases and to enter into an agreement with a landowner regarding alternative land development standards, in order to facilitate creation of a habitat preserve and to set aside land to protect a species under a conservation agreement. (d) Authorizes a plan participant to apply for a federal permit in conjunction with an RHCP only if the qualified voters have voted to approve adequate funding for the acquisition of all targeted preserve land within the time period specified in this bill; or the plan participant has demonstrated to the satisfaction of the commission that it has another source of adequate funding and if the requirements of 83.15(e) have been met. (e) Prohibits implementation of an RHCP or application for a federal permit in conjunction with an RHCP if the federal Endangered Species Act has been repealed or if the endangered species the subject of the RHCP or permit has been taken off the list. (f) Establishes deadlines for notification, offers and land acquisition by a political subdivision seeking to implement an RHCP that received a federal permit on or before January 1, 1997. Terminates authority of the plan participants to implement an RHCP if the deadlines are not met, but allows the conversion of the RHCP to an HCP. (g) Establishes a cause of action for an owner of land within the boundaries of an RHCP which received a federal permit on or before January 1, 1997 and allows a successful plaintiff to recover reasonable attorney's fees from a plan participant. (h) Requires a plan participant of an RHCP that received a federal permit on or before January 1, 1997 to submit for review and approval by the Texas Parks and Wildlife Department a proposed amendment to the RHCP. Sec. 83.014. LIMITATION OF POWERS. (a) Prohibits a governmental entity from imposing regulations, rules or ordinances related to endangered species unless they apply to the operation or maintenance of a habitat preserve owned by a plan participant. (b) Prohibits a governmental entity from discriminating against a permit application, permit approval or the provision of utility service to a property designated as habitat preserve or potential habitat preserve in an RHCP or HCP; is designated as critical habitat under the federal act or has endangered species or endangered species habitat. (c) Prohibits a governmental entity from denying or limiting available water or wastewater service in the service area of the entity to property that has been designated as habitat preserve or potential habitat preserve in an RHCP or HCP. Prohibits a governmental entity from removing property from a water or wastewater utility service area after a certain time. For an RHCP that received a federal permit on or before January 1, 1997, the plan participant may not remove property that was in its service area on January 1, 1996. Requires reinstatement of such property within 120 days after the date on which this subchapter takes effect. Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) Requires that the amount of harm to each endangered species to be protected shall govern an RHCP, including mitigation fees. (b) Requires that the size of an RHCP be based on the amount of harm to the endangered species to be protected. (c) Requires the appointment of a biological advisory team (BAT) and establishes the makeup of the team. Establishes the duties of the BAT. (d) Provides that the meetings of the BAT are subject to the open meetings law and the work product is subject to the open records law. (e) Provides that the Texas Parks and Wildlife Commission must approve an RHCP based on its compliance with this subchapter and that the Commission must concur with the calculation of harm, and the size and configuration of habitat preserves. Sec. 83.016. CITIZEN ADVISORY COMMITTEE. (a) Requires a plan participant to appoint a citizen advisory committee to assist in the preparation of an RHCP and application for a federal permit. (b) Establishes the make up of the committee. (c) Provides for the appointment of an additional landowner after the proposed habitat preserve has been identified. (d) Requires the Texas Parks and Wildlife Commission to appoint a member to the committee and provides that the member shall be a voting member. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION PLAN. (a) Provides that meeting of the citizen advisory committee and plan participants are subject to the open meetings law. (b) Provides that all data, reports and any other information regarding the RHCP are subject to the open records law. (c) Requires the plan participants to notify in writing each landowner whose land has been identified as habitat preserve or potential habitat preserve and lists what information shall be provided in the notification. (d) Requires written notification to be mailed to landowners not later than October 1, 1977 by the plan participant of an RHCP that received a federal permit on or before January 1, 1997. 83.018. PRESERVE ACQUISITION. (a) Provides that the presence of endangered species or their habitat shall not be considered when determining the fair market value of property targeted for acquisition as preserve land. (b) Provides that changes in rules and regulations by a plan participant after a certain date may not be considered when determining the fair market value of property targeted for acquisition as preserve land. (c) Establishes a time frame within which a plan participant must tender an offer for fee simple or other interest in property designated for acquisition in an RHCP. Provides remedies in the event of failure to meet an applicable deadline. (d) Establishes a time frame within which a plan participant of an RHCP that received a federal permit on or before January 1, 1997 shall make offers to landowners. Establishes a deadline for acquisition of all property designated as preserve land and in the event a deadline is not met, requires amendment of the federal permit to exclude the non-acquired preserve land from the RHCP. Removal of the land does not affect the owner's eligibility to make use of the regional 10(a) permit. If a landowner expresses in writing a desire to be excluded from the RHCP the request shall be honored and the landowner shall be receive an acknowledgment by a certain deadline. Requires notice to a landowner of a right to request withdrawal from the RHCP and requires a plan participant to cease describing the land as preserve land. Sec. 83.019. NOTICE AND HEARING REQUIREMENTS. (a) Requires a plan participant to meet all notice and hearing requirements. (b) Establishes notification by publication requirements. (c) Requires a public hearing to be held at the time and place specified in the notice. SECTION 4. Repeals Sec. 83.006, Parks and Wildlife Code. SECTION 5. Emergency clause. Effective date. COMPARISON OF ORIGINAL TO SUBSTITUTE CSHB1609 amends the original bill caption to read as follows: "relating to the authority of a political subdivision to prepare and implement a regional habitat conservation plan or to enter into a conservation agreement." The caption of the original legislation read: "relating to the authority of a political subdivision to prepare and implement a regional habitat conservation plan or conservation agreement to protect federally listed endangered species. CSHB1609 changes the title of 83.005 to read as follows: CONSERVATION AGREEMENTS FOR PROTECTION OF SPECIES. This title originally read: CONSERVATION AGREEMENTS FOR ENDANGERED SPECIES. CSHB1609 amends 83.005(a) to allow a political subdivision of the state to enter into a conservation agreement with the U.S. Department of the Interior under certain circumstances. The original legislation prohibited a political subdivision from entering into a conservation agreement. CSHB1609 amends 83.005(b) by defining "conservation agreement" in this section as one which includes an agreement between the state or a political subdivision and the U.S. Department of the Interior that does not relate to a federal permit as defined in Sec. 83.011 of this bill. The original did not include "a political subdivision" and related the agreement to Section 6 of the federal endangered species act. CSHB1609 changes the title of Section 3. Subchapter B to read as follows: HABITAT PROTECTION BY POLITICAL SUBDIVISIONS. This title originally read: REGIONAL HABITAT CONSERVATION PLAN. CSHB1609 at 83.011. Reads DEFINITIONS. In this chapter. The original legislation contained the word subchapter. CSHB1609 amends the definition of "endangered species" by adding the words "or threatened under" and striking the words "and subject to protection." CSHB1609 amends the definition of "federal permit" by adding "Section 7 or" before the words "Section 10(a)" and by striking the following language after the words "federal act" : "(16 U.S.C. Section 1539) or another provision of the federal act that authorizes a regional habitat conservation plan or similar plan." CSHB1609 amends 83.011 by adding a new (6) and renumbering subsequent subsections. The new (6) defines "Habitat conservation plan." The original legislation did not contain a definition of this term. CSHB1609 amends the definition of "Habitat preserve" at 83.011(6) of the original bill by renumbering it as (7) and by striking the words "by a governmental entity." CSHB1609 amends the definition of "Harm" at 83.011(7) of the original bill by renumbering it as (8) and by striking the words "federally listed" and "or threatened" in subsection (A) and by striking the words "or threatened" in subsection (B). CSHB1609 amends 83.011 by adding a new (9) and renumbering subsequent subsections. The new (9) defines "Land development standards." The original legislation did not contain a definition of this term. CSHB1609 amends the definition of "Mitigation fee" at 83.011(8) of the original bill by renumbering it as (10) and by striking the following phrases: "the amount of" and "or provided." CSHB1609 amends the definition of "Plan participant" at 83.011(9) of the original bill by renumbering it as (11) and by broadening the definition to include a governmental entity that "develops, attempts to develop," or "participates" in a habitat conservation plan as well as a habitat conservation plan and strikes the words "as authorized by this subchapter." CSHB1609 amends the definition of "Regional habitat conservation plan" at 83.011(10) of the original bill by renumbering it as (12). CSHB 1609 defines a "Regional habit conservation plan" as a plan or program to protect endangered species by habitat preserves or other protection strategies developed in order to obtain a federal permit that requires the acquisition or regulation of lands not owned by a plan participant. The original definition read as follows: "...means a regional habitat conservation plan developed as a prerequisite for and approved in conjunction with the issuance of a federal permit that includes lands not owned by a plan participant." CSHB1609 amends Sec. 83.012(1) of the original legislation by adding the phrase "habitat conservation plan" and by striking the words "or similar plan under a federal permit." CSHB1609 amends Sec. 83.012 by adding subsections (2) through (5) to the original legislation. Section 83.012 is the PURPOSE section and these subsections further explain the purpose of the subchapter as follows. Under 83.012(2) a governmental entity is encouraged to implement habitat conservation plans instead of regional habitat conservation plans. 83.012(3) expresses the purpose of coordinating land set- asides as a result of local, state and federal laws or regulations. 83.012(4) describes one purpose of the subchapter as seeking to prohibit the devaluation of private property containing endangered species or their habitat by plan participants. 83.012(5) describes one purpose of the subchapter as requiring compliance with the requirements of this subchapter in order to facilitate the conversion of a regional habitat conservation to a habitat conservation plan as quickly as possible. CSHB1609 amends 83.013 by changing the title from: APPLICATION AND IMPLEMENTATION to AUTHORITY OF DEPARTMENT OR POLITICAL SUBDIVISION. The substitute establishes the authority of the Texas Parks and Wildlife Department or political subdivision to participate in the the study and preparation for and creation of a habitat conservation plan and grants those entities the same authority as to a regional habitat conservation plan, subject to the provisions set forth in this subchapter. Also subject to this subchapter, a political subdivision may purchase land, easements or leases and may enter into an agreement with a landowner with respect to protecting species. The substitute provides that a plan participation may apply for a federal permit if it can demonstrate its financial ability to purchase the lands through some other means than a taxpayer effort, which was not contained in the original. The substitute adds that the Texas Parks and Wildlife Commission must review and approve the plan. The original legislation makes reference to the provision of park lands, which does not appear in the substitute. The substitute relaxes the stipulations relating to a regional habitat conservation plan that received a permit on or before January 1, 1997 which were found in the original bill. In the original legislation, if certain deadlines established in the bill were not met, a plan participant was required to return and cancel the federal permit for that plan. Under the substitute, the plan participant is not required to cancel the federal permit, but is authorized instead to convert the plan from a regional habitat conservation plan to a habitat conservation plan. CHSB1609 provides that an amendment to a regional habitat conservation plan plan that received a federal permit on or before January 1, 1997, must first be reviewed and approved by the Texas Parks and Wildlife Department. The original legislation did not contain this provision. CSHB1609 amends the title of Sec. 83.014 from LIMITATION OF POWERS; EXCLUSION OF LAND to LIMITATION OF POWERS. CSHB1609 amends Sec. 83.014 of the original by eliminating subsection (a) from the original and renumbering the original (b) as (a) in 83.014 of the substitute. CSHB1609 amends Sec. 83.014 of the original legislation by eliminating subsection (a) from the original and renumbering the original (b) as (a). CSHB1609 amends Sec. 83.014 of the original legislation by striking subsections (c), (d) and (e) from the original. CSHB1609 adds a provision to prohibit discrimination by a governmental entity as to the provision of utility services to property affected by endangered species. CSHB1609 adds a provision to prohibit a governmental entity from denying or limiting available water or wastewater services to certain property in the service area and prohibits a governmental entity from removing certain property from its service area. Provides that for a regional habitat conservation plan that received a federal permit on or before January 1, 1997, a plan participant cannot remove property from its service area that was in the service area at January 1, 1996 and establishes a deadline within which to reinstate such property in a service area. CSHB1609 removes language referring to the discrimination against certain property for the purposes of providing certain utility services; removes references to provisions for valuing property targeted for acquisition as preserve property and removes references to the denial of water and wastewater services. CSHB1609 changes deadlines for the tending an offer to purchase a fee simple or other interest in property in a plan that received a federal permit on or before January 1, 1997 from January 1, 1998 to January 1, 1999. The deadline for acquisition of habitat preserves in such a plan is changed from January 1, 1999 to September 1, 1999. The deadline for amendment of a permit is changed from January 1, 2000 to September 1, 1999 for property not receiving a fair market value offer by January 1, 1999 or not acquired by September 1, 1999. CSHB1609 strikes from the original legislation reference to mitigation fees and recovery of a reservation fee from a plan participant. CSHB1609 adds a provision for a landowner to retain the right to pay mitigation fees under a regional permit if the land previously designated as preserve has been removed from the plan, and to opt out of the plan if the landowner chooses. A plan participant must provide notice to a landowner by a certain deadline that their property has been removed as a preserve. Land removed as preserve land may not be described as such after a certain deadline. CSHB1609 deletes from the original bill the entire section titled MUNICIPAL PARK SERVICES WITH EXISTING PLANS. CSHB1609 renumbers the original 83.020 NOTICE AND HEARING REQUIREMENTS as 83.019.