75R12137 MI-F
By Turner of Coleman H.B. No. 1609
Substitute the following for H.B. No. 1609:
By Bosse C.S.H.B. No. 1609
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of a political subdivision to prepare and
1-3 implement a regional habitat conservation plan or habitat
1-4 conservation plan or to enter into a conservation agreement.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 83, Parks and Wildlife Code, is amended
1-7 by designating Sections 83.001 through 83.004 as Subchapter A and
1-8 adding a heading to Subchapter A to read as follows:
1-9 SUBCHAPTER A. FEDERAL-STATE AGREEMENTS
1-10 SECTION 2. Subchapter A, Chapter 83, Parks and Wildlife
1-11 Code, as designated by this Act, is amended by adding Section
1-12 83.005 to read as follows:
1-13 Sec. 83.005. CONSERVATION AGREEMENTS FOR PROTECTION OF
1-14 SPECIES. (a) Any conservation agreement between a political
1-15 subdivision of the state and the United States Department of the
1-16 Interior must be developed in consultation with the Parks and
1-17 Wildlife Department and approved by the commission.
1-18 (b) In this section, "conservation agreement" includes an
1-19 agreement between the state or a political subdivision of the state
1-20 and the United States Department of the Interior under the federal
1-21 act that does not relate to a federal permit as defined by Section
1-22 83.011.
1-23 SECTION 3. Chapter 83, Parks and Wildlife Code, is amended
1-24 by adding Subchapter B to read as follows:
2-1 SUBCHAPTER B. HABITAT PROTECTION BY POLITICAL SUBDIVISIONS
2-2 Sec. 83.011. DEFINITIONS. In this chapter:
2-3 (1) "Biological advisory team" means three or more
2-4 professional biologists retained to provide biological guidance to
2-5 plan participants.
2-6 (2) "Endangered species" means a species listed by the
2-7 United States Department of the Interior as endangered or
2-8 threatened under the federal act.
2-9 (3) "Federal act" means the federal Endangered Species
2-10 Act of 1973 (16 U.S.C. Section 1531 et seq.), as amended.
2-11 (4) "Federal permit" means a permit issued under
2-12 Section 7 or 10(a) of the federal act.
2-13 (5) "Governmental entity" means a political
2-14 subdivision of the state, including:
2-15 (A) a municipality; and
2-16 (B) a county.
2-17 (6) "Habitat conservation plan" means a plan to
2-18 protect endangered species by habitat preserves and other
2-19 protection strategies developed in order to obtain a federal permit
2-20 under which:
2-21 (A) the land to be used as habitat preserves in
2-22 the habitat conservation plan must by owned by a plan participant;
2-23 or
2-24 (B) each owner of land in the habitat preserve
2-25 or proposed habitat preserve must have contractually agreed to have
2-26 all or part of the owner's land used or managed as a habitat
2-27 preserve.
3-1 (7) "Habitat preserve" means land set aside or managed
3-2 for the protection of endangered species under a federal permit.
3-3 (8) "Harm" means significant habitat modification or
3-4 degradation that, by significantly impairing essential behavioral
3-5 patterns, including breeding, feeding, sheltering, or migrating, is
3-6 the proximate cause of:
3-7 (A) the death of a member of an endangered
3-8 species; or
3-9 (B) the physical injury of a member of an
3-10 endangered species.
3-11 (9) "Land development standards" means rules or
3-12 ordinances regulating the development of land, including impervious
3-13 cover limitations, building setbacks, zoning, floor-to-area ratios,
3-14 building coverage, water quality controls and regulations,
3-15 landscaping, building height, development setbacks, compatibility
3-16 standards, traffic analyses, driveway cuts, impact fees, and
3-17 transfer of development rights. The term does not include fire or
3-18 building codes.
3-19 (10) "Mitigation fee" means a charge or in-kind
3-20 contribution that is based on the amount of harm and is paid or
3-21 provided to a plan participant in exchange for mitigation credit to
3-22 be used to comply with the federal act.
3-23 (11) "Plan participant" means a governmental entity
3-24 that develops, attempts to develop, adopts, approves, or
3-25 participates in a regional habitat conservation plan or habitat
3-26 conservation plan.
3-27 (12) "Regional habitat conservation plan" means a plan
4-1 or program to protect endangered species by habitat preserves or
4-2 other protection strategies developed in order to obtain a federal
4-3 permit that requires the acquisition or regulation of lands not
4-4 owned by a plan participant.
4-5 Sec. 83.012. PURPOSE. The purpose of this subchapter is to:
4-6 (1) establish the requirements for and authority of a
4-7 governmental entity to regulate wildlife through the development,
4-8 financing, and implementation of a regional habitat conservation
4-9 plan or a habitat conservation plan;
4-10 (2) encourage governmental entities to use the
4-11 authority under this subchapter to develop and implement habitat
4-12 conservation plans instead of regional habitat conservation plans;
4-13 (3) coordinate, to the greatest extent practicable,
4-14 habitat preserves with lands set aside or to be set aside under
4-15 local, state, or federal laws or regulations;
4-16 (4) prohibit plan participants from devaluing property
4-17 containing endangered species or endangered species habitat through
4-18 plan participant actions; and
4-19 (5) require plan participants of existing regional
4-20 habitat conservation plans to comply with the requirements of this
4-21 subchapter so that existing regional habitat conservation plans
4-22 become habitat conservation plans as quickly as possible.
4-23 Sec. 83.013. AUTHORITY OF DEPARTMENT OR POLITICAL
4-24 SUBDIVISION. (a) The department or a political subdivision may
4-25 participate in the study and preparation for and creation of a
4-26 habitat conservation plan.
4-27 (b) Subject to this subchapter, the department or a
5-1 political subdivision may participate in the study and preparation
5-2 for and creation of a regional habitat conservation plan.
5-3 (c) Subject to this subchapter, a political subdivision,
5-4 including a municipality acting within its corporate limits or its
5-5 extraterritorial jurisdiction, in order to facilitate the creation
5-6 of a habitat preserve and the setting aside of land to protect a
5-7 species protected under a conservation agreement, may:
5-8 (1) purchase land, easements, or leases; and
5-9 (2) enter into an agreement with a landowner to
5-10 establish alternative land development standards for a tract of
5-11 land.
5-12 (d) A plan participant may apply for a federal permit in
5-13 conjunction with a regional habitat conservation plan only if:
5-14 (1) the qualified voters of a plan participant have
5-15 authorized the issuance of bonds or other debt financing in an
5-16 amount equal to the estimated cost of acquiring all land for
5-17 habitat preserves within the time required by this subchapter or
5-18 the plan participant has demonstrated to the commission adequate
5-19 sources of funding to acquire all land for habitat preserves within
5-20 the times required by this subchapter; and
5-21 (2) the requirements of Section 83.015(e) have been
5-22 met.
5-23 (e) A governmental entity may not implement a regional
5-24 habitat conservation plan or apply for a federal permit in
5-25 conjunction with a regional habitat conservation plan if:
5-26 (1) the federal act is repealed; or
5-27 (2) the endangered species that are subject to
6-1 conservation and protection under the federal permit cease to be
6-2 listed as endangered by the United States Department of the
6-3 Interior.
6-4 (f) A political subdivision may implement a regional habitat
6-5 conservation plan that received a federal permit on or before
6-6 January 1, 1997, only if the plan participants comply with Sections
6-7 83.017(d), 83.018, and 83.019 within the time prescribed. If the
6-8 plan participants of such a regional habitat conservation plan do
6-9 not meet a deadline prescribed by Section 83.017(d), 83.018, or
6-10 83.019, the authority of the plan participants to implement the
6-11 regional habitat conservation plan that received a federal permit
6-12 on or before January 1, 1997, or to implement any other regional
6-13 habitat conservation plan automatically terminates. The plan
6-14 participants may convert the regional habitat conservation plan
6-15 into a habitat conservation plan.
6-16 (g) Any owner of land within the boundaries of a regional
6-17 habitat conservation plan that received a federal permit on or
6-18 before January 1, 1997, may bring an action against a plan
6-19 participant of that regional habitat conservation plan to enforce
6-20 compliance with the requirements of this subchapter or for actual
6-21 damages proximately caused by the plan participant's failure to
6-22 comply with this subchapter. A landowner who obtains a judgment to
6-23 enforce this subchapter shall recover reasonable attorney's fees
6-24 from the plan participant.
6-25 (h) An amendment to a regional habitat conservation plan,
6-26 including a plan that received a federal permit on or before
6-27 January 1, 1997, shall be reviewed and must be approved by the
7-1 department for compliance with the purposes and requirements of
7-2 this subchapter before the amendment is submitted to the United
7-3 States Fish and Wildlife Service.
7-4 Sec. 83.014. LIMITATION OF POWERS. (a) A governmental
7-5 entity may not impose a regulation, rule, or ordinance related to
7-6 endangered species unless the regulation, rule, or ordinance
7-7 relates to the operation or management of a habitat preserve owned
7-8 by a plan participant.
7-9 (b) A governmental entity may not discriminate against a
7-10 permit application, permit approval, or the provision of utility
7-11 service for property that:
7-12 (1) is or has been designated as habitat preserve or
7-13 potential habitat preserve in a regional habitat conservation plan
7-14 or habitat conservation plan;
7-15 (2) is designated as critical habitat under the
7-16 federal act; or
7-17 (3) has endangered species or endangered species
7-18 habitat.
7-19 (c) A governmental entity may not deny or limit available
7-20 water or wastewater service to property in the service area of the
7-21 governmental entity that has been designated as habitat preserve or
7-22 potential habitat preserve in a regional habitat conservation plan
7-23 or in a habitat conservation plan. For purposes of this
7-24 subsection, a governmental entity may not remove property from its
7-25 water or wastewater utility service areas after the date
7-26 established under Section 83.018(b). For a regional habitat
7-27 conservation plan that received a federal permit on or before
8-1 January 1, 1997, the plan participant may not remove the property
8-2 if the property was in the plan participant's service area on
8-3 January 1, 1996. Any property subject to this subsection that has
8-4 been removed from a plan participant's service area shall be
8-5 reinstated in the service area within 120 days after the date on
8-6 which this subchapter takes effect.
8-7 Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A regional
8-8 habitat conservation plan, including any mitigation fee, shall be
8-9 based on the amount of harm to each endangered species to be
8-10 protected under the regional habitat conservation plan.
8-11 (b) The size of proposed habitat preserves shall be based
8-12 solely on the amount of harm to the endangered species to be
8-13 protected in the regional habitat conservation plan.
8-14 (c) The plan participants, together with the commission and
8-15 the landowner members of the citizens advisory committee, shall
8-16 appoint a biological advisory team. At least one member shall be
8-17 appointed by the commission and one member by the landowner members
8-18 of the citizens advisory committee. The member appointed by the
8-19 commission serves as presiding officer of the team. The team shall
8-20 assist in:
8-21 (1) the calculation of harm to the endangered species;
8-22 and
8-23 (2) the sizing and configuring of the habitat
8-24 preserves.
8-25 (d) Meetings of the biological advisory team are subject to
8-26 the open meetings law, Chapter 551, Government Code, and all work
8-27 product of the biological advisory team is subject to the open
9-1 records law, Chapter 552, Government Code.
9-2 (e) A regional habitat conservation plan shall be reviewed
9-3 for compliance with this subchapter and must be approved by the
9-4 commission before an application for a federal permit is submitted.
9-5 The commission must concur with the calculation of harm used in the
9-6 regional habitat conservation plan and the size and configuration
9-7 of habitat preserves.
9-8 Sec. 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan
9-9 participants shall appoint a citizens advisory committee to assist
9-10 in preparing the regional habitat conservation plan and the
9-11 application for a federal permit.
9-12 (b) At least four members or 33 percent of the citizens
9-13 advisory committee, whichever is greater in number, must own
9-14 undeveloped property or property in agricultural use in the
9-15 regional habitat conservation plan area. A landowner member may
9-16 not:
9-17 (1) be an employee or elected official of a plan
9-18 participant or any other local, state, or federal governmental
9-19 entity; or
9-20 (2) be affiliated with any commonly recognized
9-21 environmental group.
9-22 (c) After proposed habitat preserves have been identified,
9-23 the plan participants shall appoint one additional landowner to the
9-24 citizens advisory committee. The additional landowner must comply
9-25 with Subsection (b).
9-26 (d) The commission shall appoint one representative to the
9-27 citizens advisory committee. The commission's representative is a
10-1 voting member of the committee.
10-2 Sec. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION
10-3 PLAN. (a) Meetings of the citizens advisory committee and
10-4 meetings of the plan participants regarding planning, development,
10-5 and implementation of the regional habitat conservation plan are
10-6 subject to the open meetings law, Chapter 551, Government Code.
10-7 (b) All data, reports, and other information regarding the
10-8 regional habitat conservation plan, including field notes, lab
10-9 notes, and any other information relied on by the biological
10-10 advisory team, are subject to the open records law, Chapter 552,
10-11 Government Code.
10-12 (c) The plan participants shall notify in writing each owner
10-13 of land identified by the plan participants as habitat preserve or
10-14 potential habitat preserve. The plan participants shall use the
10-15 county tax rolls to identify the owners of land identified as
10-16 habitat preserve or potential habitat preserve. The written notice
10-17 must include at least the following information:
10-18 (1) the tax identification and parcel numbers;
10-19 (2) the owner's name and address;
10-20 (3) an explanation of the designation or possible
10-21 designation of the tract as habitat preserve or potential habitat
10-22 preserve under the regional habitat conservation plan;
10-23 (4) identification of the citizens advisory committee
10-24 members, including telephone numbers, addresses, and the group that
10-25 each committee member represents;
10-26 (5) identification of employees or agents of plan
10-27 participants who can provide information about the regional habitat
11-1 conservation plan;
11-2 (6) the date of the next citizens advisory committee
11-3 meeting or plan participant meeting regarding the regional habitat
11-4 conservation plan; and
11-5 (7) a description of the status of the regional
11-6 habitat conservation plan.
11-7 (d) For a regional habitat conservation plan that received a
11-8 federal permit on or before January 1, 1997, notice required by
11-9 Subsection (c) shall be mailed not later than October 1, 1997, to
11-10 each landowner whose property has been designated under that plan
11-11 as habitat preserve or potential habitat preserve.
11-12 Sec. 83.018. PRESERVE ACQUISITION. (a) The designation of
11-13 a tract of land as habitat preserve or potential habitat preserve
11-14 or the presence of endangered species or endangered species habitat
11-15 may not be considered in determining the fair market value of the
11-16 property for acquisition as a habitat preserve.
11-17 (b) A change to plan participant rules and regulations,
11-18 including land development standards, that occurs after the
11-19 earliest date that the biological advisory team, citizen advisory
11-20 committee, or plan participant initially identifies a tract of land
11-21 as habitat preserve or potential habitat preserve may not be
11-22 considered in determining the fair market value of the property for
11-23 acquisition as a habitat preserve.
11-24 (c) Except as provided by Subsection (d), the plan
11-25 participants shall make offers based on fair market value to the
11-26 landowners for the acquisition of fee simple or other property
11-27 interest in land designated in the regional habitat conservation
12-1 plan as habitat preserve not later than two years after the
12-2 issuance of the federal permit or three years after the initial
12-3 application for the federal permit, whichever is earlier.
12-4 Acquisition of all habitat preserves must be completed not later
12-5 than the fourth anniversary of the date on which the federal permit
12-6 was issued. A plan participant subject to this subsection who does
12-7 not meet an applicable deadline shall file an application to amend
12-8 the federal permit to remove the nonacquired habitat preserve
12-9 property from the regional habitat conservation plan as a habitat
12-10 preserve not later than the 60th day after the fourth anniversary
12-11 of the date on which the federal permit was issued.
12-12 (d) For a regional habitat conservation plan that received a
12-13 federal permit on or before January 1, 1997, the plan participants
12-14 shall make offers based on fair market value to the landowners for
12-15 acquisition of fee simple or other property interest of land
12-16 designated in the federal permit as habitat preserve or potential
12-17 habitat preserve not later than January 1, 1999. Acquisition of
12-18 habitat preserves must be completed by September 1, 1999. A plan
12-19 participant subject to this subsection who does not meet the
12-20 deadlines specified in this subsection shall amend the federal
12-21 permit to remove the nonacquired habitat preserve property from the
12-22 regional habitat conservation plan and the federal permit as a
12-23 habitat preserve not later than September 1, 1999, for property not
12-24 receiving a fair market value offer by January 1, 1999, or not
12-25 acquired by September 1, 1999. Except as otherwise provided by
12-26 this subsection, property removed as a habitat preserve or
12-27 potential habitat preserve may not be removed from the regional
13-1 habitat conservation plan or habitat conservation plan areas
13-2 eligible to pay mitigation fees or otherwise be denied the right to
13-3 pay a mitigation fee and receive corresponding credit. All or part
13-4 of property that has been removed as a habitat preserve or
13-5 potential habitat preserve shall be excluded from the regional
13-6 habitat conservation plan if the owners make a written request to
13-7 be excluded from the regional habitat conservation plan. The plan
13-8 participants shall provide written notice to the owner of property
13-9 removed as a habitat preserve or potential habitat preserve not
13-10 later than the applicable deadline established by this subsection.
13-11 The notice must inform the landowner of the right to withdraw all
13-12 or part of the land from the regional habitat conservation plan
13-13 within six months after the date of receipt of the notice. On
13-14 removal of property from a regional habitat conservation plan as a
13-15 habitat preserve or potential habitat preserve, the plan
13-16 participants shall cease describing, in any fashion, that property
13-17 as habitat preserve or potential habitat preserve.
13-18 Sec. 83.019. NOTICE AND HEARING REQUIREMENTS. (a) A plan
13-19 participant must comply with the notice and hearing requirements of
13-20 this section before adopting any regional habitat conservation
13-21 plan, plan amendment, ordinance, budget, fee schedule, rule,
13-22 regulation, or order to implement this subchapter.
13-23 (b) The plan participant, individually or through interlocal
13-24 contract, shall publish a notice, including a brief description of
13-25 the proposed action and the time and place of a public hearing on
13-26 the proposed action, not later than the 30th day before the public
13-27 hearing in the newspaper of largest general circulation in the
14-1 county in which the plan participant proposing the action is
14-2 located.
14-3 (c) A public hearing on the proposed action shall be held at
14-4 the time and place specified in the notice.
14-5 SECTION 4. Section 83.006, Parks and Wildlife Code, is
14-6 repealed.
14-7 SECTION 5. The importance of this legislation and the
14-8 crowded condition of the calendars in both houses create an
14-9 emergency and an imperative public necessity that the
14-10 constitutional rule requiring bills to be read on three several
14-11 days in each house be suspended, and this rule is hereby suspended,
14-12 and that this Act take effect and be in force from and after its
14-13 passage, and it is so enacted.