By Turner of Coleman H.B. No. 1609
75R3691 MI-F
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 conservation
1-4 agreement to protect federally listed endangered species.
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 ENDANGERED SPECIES.
1-14 (a) A political subdivision of the state may not enter into a
1-15 conservation agreement.
1-16 (b) In this section, "conservation agreement" includes an
1-17 agreement between the state and the United States Department of the
1-18 Interior under Section 6 of the federal Endangered Species Act (16
1-19 U.S.C. Section 1531 et seq.).
1-20 SECTION 3. Chapter 83, Parks and Wildlife Code, is amended
1-21 by adding Subchapter B to read as follows:
1-22 SUBCHAPTER B. REGIONAL HABITAT CONSERVATION PLAN
1-23 Sec. 83.011. DEFINITIONS. In this subchapter:
1-24 (1) "Biological advisory team" means three or more
2-1 professional biologists retained to provide biological guidance to
2-2 plan participants.
2-3 (2) "Endangered species" means a species listed by the
2-4 United States Department of the Interior as endangered and subject
2-5 to protection under the federal act.
2-6 (3) "Federal act" means the federal Endangered Species
2-7 Act of 1973 (16 U.S.C. Section 1531 et seq.), as amended.
2-8 (4) "Federal permit" means a permit issued under
2-9 Section 10(a) of the federal act (16 U.S.C. Section 1539) or
2-10 another provision of the federal act that authorizes a regional
2-11 habitat conservation plan or similar plan.
2-12 (5) "Governmental entity" means a political
2-13 subdivision of the state, including:
2-14 (A) a municipality; and
2-15 (B) a county.
2-16 (6) "Habitat preserve" means land set aside or managed
2-17 by a governmental entity for the protection of endangered species
2-18 under a federal permit.
2-19 (7) "Harm" means significant habitat modification or
2-20 degradation that, by significantly impairing essential behavioral
2-21 patterns, including breeding, feeding, sheltering, or migrating, is
2-22 the proximate cause of:
2-23 (A) the death of a member of a federally listed
2-24 endangered or threatened species; or
2-25 (B) the physical injury of a member of the
2-26 endangered or threatened species.
2-27 (8) "Mitigation fee" means a charge or in-kind
3-1 contribution that is based on harm and is paid to a plan
3-2 participant in exchange for mitigation credit to be used to comply
3-3 with the federal act.
3-4 (9) "Plan participant" means a governmental entity
3-5 that adopts or approves a regional habitat conservation plan as
3-6 authorized by this subchapter.
3-7 (10) "Regional habitat conservation plan" means a
3-8 regional habitat conservation plan developed as a prerequisite for
3-9 and approved in conjunction with the issuance of a federal permit
3-10 that includes lands not owned by a plan participant.
3-11 Sec. 83.012. PURPOSE. The purpose of this subchapter is to
3-12 establish the requirements for and authority of a governmental
3-13 entity to regulate wildlife through the development, financing, and
3-14 implementation of a habitat conservation plan or similar plan under
3-15 a federal permit.
3-16 Sec. 83.013. APPLICATION AND IMPLEMENTATION. (a) Except as
3-17 provided by Subsection (d), a governmental entity may apply for a
3-18 federal permit only if:
3-19 (1) the qualified voters of the governmental entity
3-20 have authorized the issuance of bonds or other debt financing in an
3-21 amount equal to the estimated cost of acquiring all land for
3-22 habitat preserves within the time required by this subchapter; and
3-23 (2) the governing body of the governmental entity
3-24 certifies that all residents are served with park facilities in
3-25 full accordance with the plan participants' published guidelines
3-26 for facilities and services.
3-27 (b) A governmental entity may not:
4-1 (1) implement a regional habitat conservation plan
4-2 under this subchapter until the requirements of this subchapter
4-3 have been met; or
4-4 (2) implement a regional habitat conservation plan or
4-5 apply for a federal permit under this subchapter if:
4-6 (A) the federal act is repealed; or
4-7 (B) the endangered species that are subject to
4-8 conservation and protection under the federal permit cease to be
4-9 listed as endangered by the United States Department of the
4-10 Interior.
4-11 (c) A municipality may implement a regional habitat
4-12 conservation plan in the municipality's extraterritorial
4-13 jurisdiction and outside the municipality's full-purpose annexed
4-14 territory only in those areas that are in a county in which the
4-15 qualified voters have authorized the issuance of bonds for the
4-16 purpose of acquiring land for habitat preserves.
4-17 (d) Subsections (a)-(c) do not apply to a regional habitat
4-18 conservation plan that received a federal permit on or before
4-19 January 1, 1997, if the requirements of Sections 83.017(d), 83.018,
4-20 and 83.019 are met. If the plan participants do not meet those
4-21 requirements by the applicable deadlines, the exception granted by
4-22 this subsection does not apply and the plan participants shall
4-23 return and cancel the federal permit for that regional habitat
4-24 conservation plan.
4-25 Sec. 83.014. LIMITATION OF POWERS; EXCLUSION OF LAND.
4-26 (a) A plan participant may not sell, convey, lease, or release any
4-27 land acquired for use as a regional habitat preserve until the
5-1 habitat preserves identified in the regional habitat conservation
5-2 plan have been completely acquired. This subsection does not apply
5-3 to public works projects required for health and safety purposes.
5-4 (b) A governmental entity may not impose a regulation, rule,
5-5 or ordinance related to endangered species unless the regulation,
5-6 rule, or ordinance relates to the management of a habitat preserve
5-7 acquired or owned by a plan participant.
5-8 (c) If property under common ownership lies both inside and
5-9 outside the area subject to a regional habitat conservation plan
5-10 under this subchapter, the property shall be excluded from the
5-11 regional habitat conservation plan unless the owners make written
5-12 request to be included in the regional habitat conservation plan.
5-13 (d) A plan participant may not require a person to:
5-14 (1) pay a mitigation fee to the plan participant for a
5-15 regional habitat conservation plan;
5-16 (2) set aside, lease, or convey real property as
5-17 habitat preserve; or
5-18 (3) make the contribution of real property as habitat
5-19 preserve a requirement for or condition of a service provided or
5-20 permit issued by the plan participant.
5-21 (e) A plan participant may not spend money that has been
5-22 dedicated to a use other than the management or regulation of
5-23 wildlife, including money assessed or collected under Subchapter C,
5-24 Chapter 402, Local Government Code, for the development or
5-25 implementation of a regional habitat permit or a federal permit.
5-26 Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A regional
5-27 habitat conservation plan, including any mitigation fee, shall be
6-1 based on the proposed amount of harm to each endangered species to
6-2 be protected under the regional habitat conservation plan.
6-3 (b) The size of proposed habitat preserves shall be based
6-4 solely on the proposed amount of harm to the endangered species to
6-5 be protected in the regional habitat conservation plan.
6-6 (c) The plan participants, together with the commission and
6-7 the landowner members of the citizens advisory committee, shall
6-8 appoint a biological advisory team. At least one member shall be
6-9 appointed by the commission and one member by the landowner members
6-10 of the citizens advisory committee. The member appointed by the
6-11 commission serves as presiding officer of the team. The team shall
6-12 assist in:
6-13 (1) the calculation of harm to the endangered species;
6-14 and
6-15 (2) the sizing and configuring of the habitat
6-16 preserves.
6-17 (d) Meetings of the biological advisory team are subject to
6-18 the open meetings law, Chapter 551, Government Code, and all work
6-19 product of the biological advisory team is subject to the open
6-20 records law, Chapter 552, Government Code.
6-21 (e) A regional habitat conservation plan shall be reviewed
6-22 for compliance with this subchapter and must be approved by the
6-23 commission before an application for a federal permit is submitted.
6-24 The commission must concur with the calculation of harm used in the
6-25 regional habitat conservation plan.
6-26 Sec. 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan
6-27 participants shall appoint a citizens advisory committee to assist
7-1 in preparing the regional habitat conservation plan and the
7-2 application for a federal permit.
7-3 (b) At least four members or 33 percent of the citizens
7-4 advisory committee, whichever is greater in number, must own
7-5 undeveloped property or property in agricultural use in the
7-6 regional habitat conservation plan area. A landowner member may
7-7 not:
7-8 (1) be an employee or elected official of a plan
7-9 participant or any other local, state, or federal governmental
7-10 entity; or
7-11 (2) be affiliated with any commonly recognized
7-12 environmental group.
7-13 (c) After proposed habitat preserves have been identified,
7-14 the plan participants shall appoint one additional landowner to the
7-15 citizens advisory committee. The additional landowner must comply
7-16 with Subsection (b).
7-17 (d) The commission shall appoint one representative to the
7-18 citizens advisory committee. The commission's representative is a
7-19 voting member of the committee.
7-20 Sec. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION
7-21 PLAN. (a) Meetings of the citizens advisory committee and
7-22 meetings of the plan participants regarding planning, development,
7-23 and implementation of the regional habitat conservation plan are
7-24 subject to the open meetings law, Chapter 551, Government Code.
7-25 (b) All data, reports, and other information regarding the
7-26 regional habitat conservation plan, including field notes, lab
7-27 notes, and any other information relied on by the biological
8-1 advisory team, are subject to the open records law, Chapter 552,
8-2 Government Code.
8-3 (c) The plan participants shall notify in writing each owner
8-4 of land identified by the plan participants as habitat preserve or
8-5 potential habitat preserve. The plan participants shall use the
8-6 county tax rolls to identify the owners of land identified as
8-7 habitat preserve or potential habitat preserve. The written notice
8-8 must include at least the following information:
8-9 (1) the tax identification and parcel numbers;
8-10 (2) the owner's name and address;
8-11 (3) an explanation of the designation or possible
8-12 designation of the tract as habitat preserve or potential habitat
8-13 preserve under the regional habitat conservation plan;
8-14 (4) identification of the citizens advisory committee
8-15 members, including telephone numbers, addresses, and the group that
8-16 each committee member represents;
8-17 (5) identification of employees or agents of plan
8-18 participants who can provide information about the regional habitat
8-19 conservation plan;
8-20 (6) the date of the next citizens advisory committee
8-21 meeting or plan participant meeting regarding the regional habitat
8-22 conservation plan; and
8-23 (7) a description of the status of the regional
8-24 habitat conservation plan.
8-25 (d) For a regional habitat conservation plan that received a
8-26 federal permit on or before January 1, 1997, notice required by
8-27 Subsection (c) shall be mailed not later than October 1, 1997, to
9-1 each landowner whose property has been designated under that plan
9-2 as habitat preserve or potential habitat preserve.
9-3 Sec. 83.018. PRESERVE ACQUISITION. (a) The designation of
9-4 a tract of land as habitat preserve or potential habitat preserve
9-5 may not be considered in determining the fair market value of the
9-6 property for acquisition as a habitat preserve. A governmental
9-7 entity may not discriminate against a permit application or in
9-8 determining permit approval or providing utility service for
9-9 property designated as habitat preserve or potential habitat
9-10 preserve in a regional habitat conservation plan or designated as
9-11 critical habitat under the federal act.
9-12 (b) Property shall be valued for acquisition as a habitat
9-13 preserve under the law and regulations in effect on the date the
9-14 citizens advisory committee or the plan participants by resolution
9-15 initially identify the tract of land as habitat preserve or
9-16 potential habitat preserve.
9-17 (c) A governmental entity may not deny water or wastewater
9-18 service to property that is within the service area of the
9-19 governmental entity and designated as habitat preserve or potential
9-20 habitat preserve in a regional habitat conservation plan. For
9-21 purposes of this subsection, a governmental entity may not remove
9-22 property from its water or wastewater utility service areas after
9-23 the date described under Subsection (b). For a regional habitat
9-24 conservation plan that received a federal permit on or before
9-25 January 1, 1997, the service area removal deadline is January 1,
9-26 1996.
9-27 (d) The plan participants shall make offers to the
10-1 landowners for the acquisition of fee simple or other property
10-2 interest in land designated in the federal permit as habitat
10-3 preserve not later than two years after the issuance of the federal
10-4 permit or three years after the initial application for the federal
10-5 permit, whichever is earlier. Acquisition of habitat preserves
10-6 must be completed not later than the fourth anniversary of the date
10-7 on which the federal permit was issued. A plan participant subject
10-8 to this subsection who does not meet an applicable deadline shall
10-9 amend the federal permit to remove the nonacquired habitat preserve
10-10 property not later than the fifth anniversary of the date on which
10-11 the federal permit was issued.
10-12 (e) For a regional habitat conservation plan that received a
10-13 federal permit on or before January 1, 1997, the plan participants
10-14 shall make offers to the landowners for acquisition of fee simple
10-15 or other property interest of land designated in the federal permit
10-16 as habitat preserve or potential habitat preserve not later than
10-17 January 1, 1998. Acquisition of habitat preserves must be
10-18 completed by January 1, 1999. A plan participant subject to this
10-19 subsection who does not meet the deadlines specified in this
10-20 subsection shall amend the federal permit to remove the nonacquired
10-21 habitat preserve property from the regional habitat conservation
10-22 plan and the federal permit not later than July 1, 2000.
10-23 (f) For a regional habitat conservation plan that received a
10-24 federal permit on or before January 1, 1997, the plan shall be
10-25 amended so that the total fee amount, including mitigation fees,
10-26 assessed or charged under the regional habitat conservation plan
10-27 may not exceed $500 an acre. Plan participants shall file the
11-1 amendment to the federal permit required by this subsection not
11-2 later than December 1, 1997.
11-3 (g) If the requirements of Subsections (e) and (f) are not
11-4 met by the specified deadlines, the owner of property designated as
11-5 a habitat preserve or potential habitat preserve may recover from
11-6 the plan participants a reservation fee equal to 15 percent a year
11-7 of the fair market value of the property calculated from the date
11-8 the application for the federal permit is filed. The reservation
11-9 fee accrues until the property is acquired or the property is
11-10 removed from the federal permit as habitat preserve.
11-11 Sec. 83.019. MUNICIPAL PARK SERVICES WITH EXISTING PLANS.
11-12 (a) For a regional habitat conservation plan that received a
11-13 federal permit on or before January 1, 1997, all residents of the
11-14 plan participants shall be served in full accordance with the plan
11-15 participants' published guidelines for park facilities at the time
11-16 the federal permit was issued for the regional habitat conservation
11-17 plan.
11-18 (b) A commission of three individuals, appointed by the
11-19 governor, shall review the plan participants' published guidelines
11-20 and actual facilities. The governor shall appoint the commission
11-21 not later than October 1, 1997. The commission shall complete its
11-22 findings and deliver a report by December 31, 1997, to the plan
11-23 participants and the governor's office.
11-24 (c) If the commission appointed under Subsection (b)
11-25 determines that the plan participants' park services do not meet
11-26 the plan participants' published guidelines at the time the
11-27 regional habitat conservation plan was adopted, the plan
12-1 participants shall create a plan to correct all deficiencies and
12-2 submit the plan to the commission not later than March 31, 1998.
12-3 The commission shall review the plan participants' corrective plan
12-4 not later than April 30, 1998. The plan participants shall amend
12-5 the corrective plan as directed by the commission. All corrections
12-6 shall be completed by the plan participants not later than August
12-7 30, 2000.
12-8 Sec. 83.020. NOTICE AND HEARING REQUIREMENTS. (a) A plan
12-9 participant must comply with the notice and hearing requirements of
12-10 this section before adopting any regional habitat conservation
12-11 plan, plan amendment, ordinance, budget, fee schedule, rule,
12-12 regulation, or order to implement this subchapter.
12-13 (b) The plan participant, individually or through interlocal
12-14 contract, shall publish a notice, including a brief description of
12-15 the proposed action and the time and place of a public hearing on
12-16 the proposed action, not later than the 30th day before the public
12-17 hearing in the newspaper of largest general circulation in the
12-18 county in which the plan participant proposing the action is
12-19 located.
12-20 (c) A public hearing on the proposed action shall be held at
12-21 the time and place specified in the notice.
12-22 SECTION 4. Section 83.006, Parks and Wildlife Code, is
12-23 repealed.
12-24 SECTION 5. The importance of this legislation and the
12-25 crowded condition of the calendars in both houses create an
12-26 emergency and an imperative public necessity that the
12-27 constitutional rule requiring bills to be read on three several
13-1 days in each house be suspended, and this rule is hereby suspended,
13-2 and that this Act take effect and be in force from and after its
13-3 passage, and it is so enacted.