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.