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.