By Seaman                                       H.B. No. 2640

      75R8528 T                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the permitting of commercial mariculture facilities for

 1-3     shrimp and exotic species of aquatic life in coastal counties,

 1-4     relating to the authority of coastal counties over certain

 1-5     mariculture activities, relating to a study to guide future

 1-6     regulation of certain mariculture activities in Texas and granting

 1-7     rulemaking authority.

 1-8           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-9           SECTION 1.  Chapter 26, Water Code, is amended to add a new

1-10     Section 26.0272 to read as follows:

1-11           Sec. 26.0272.  STUDY OF IMPACTS OF DISCHARGES FROM CERTAIN

1-12     MARICULTURE FACILITIES.  (a)  Until completion of the study

1-13     described in Subsection (b) of this section, the commission shall

1-14     not

1-15                 (1)  grant any application for a permit, amendment,

1-16     renewal, or other authorization that is currently pending before

1-17     the agency or that is filed with the agency after the effective

1-18     date of this section for the discharge of any water or waste waters

1-19     from any existing or proposed mariculture facility for the

1-20     commercial production of shrimp or any exotic species if the

1-21     facility is located in any county bordering on the Gulf of Mexico

1-22     or bordering on the tidewater limits of the Gulf unless the permit,

1-23     amendment or other authorization provides that it expires on

1-24     September 1, 1999 and that it can only be renewed if meets the

 2-1     standards and requirements of the commission based on the study

 2-2     described in Subsection (b) of this section, or

 2-3                 (2)  promulgate any rule authorizing discharges or

 2-4     establishing requirements for discharges from such a facility.

 2-5           (b)  The commission shall, by December 1, 1998, conduct, in

 2-6     coordination with the Parks and Wildlife Department, the Animal

 2-7     Health Commission and appropriate educational entities, a study of

 2-8                 (1)  the need for discharges and ways to minimize

 2-9     discharges from mariculture facilities for the commercial

2-10     production of shrimp or any exotic species, and

2-11                 (2)  the potential impacts of such discharges on the

2-12     aquatic life of Texas bays and estuaries receiving such discharges.

2-13     The study shall include the examination of the potential impacts of

2-14     any release or pollutants, including viruses and exotic species.

2-15     The Parks and Wildlife Department shall have lead responsibility

2-16     for choosing any consultants for the study and for any evaluation

2-17     of the impacts of the release of viruses or exotic species.

2-18           (c)  The commission shall coordinate with the Parks and

2-19     Wildlife Department and appropriate educational entities to

2-20     conduct, by December 1, 1998, a study of the impacts of the

2-21     diversions of state water by mariculture facilities for the

2-22     commercial production of shrimp or any exotic species on the

2-23     aquatic life of Texas bays and estuaries.

2-24           (d)  The commission shall by rule establish an annual fee for

2-25     the use of state waters by mariculture facilities engaged in the

2-26     commercial production of shrimp or any exotic species.  The fee

2-27     shall be collected for the period of January 1, 1997 to December

 3-1     31, 1998 and be based on the actual or estimated amount of water

 3-2     taken from Texas bays and estuaries during this period.  The fee

 3-3     shall be set by the commission in an amount sufficient to recover

 3-4     the estimated costs of the studies required in Subsections (b) and

 3-5     (c) of this section and any costs associated with the assessment

 3-6     and collection of the fee.

 3-7           (e)  Upon completion of the studies required under this

 3-8     section, the commission shall publish the results of the study and

 3-9     shall submit copies of the study to the Governor, Lt. Governor and

3-10     Speaker of the House.

3-11           (f)  In this section the term "mariculture" has the meaning

3-12     assigned in Section 11.1421 of this code.

3-13           (g)  All permits issued by the commission before the

3-14     effective date of this law for a discharge of any water or waste

3-15     waters from any existing or proposed mariculture facility for the

3-16     commercial production of shrimp or any exotic species located in a

3-17     county bordering on the Gulf of Mexico or bordering on the

3-18     tidewater limits of the Gulf shall expire on September 1, 1999 and

3-19     can only be renewed if it meets the standards and requirements of

3-20     the commission based on the study described in Subsection (b) of

3-21     this section.

3-22           SECTION 2.  Chapter 26, Water Code, is amended by adding a

3-23     new Section 26.0286 to read as follows:

3-24           Sec. 26.0286.  ADDITIONAL REQUIREMENTS FOR CERTAIN

3-25     MARICULTURE FACILITIES ALONG THE TEXAS COAST.  (a)  This section

3-26     applies to new and existing mariculture facilities designed for the

3-27     commercial production of any type of shrimp or exotic species of

 4-1     aquatic life in any county bordering on the Gulf of Mexico or on

 4-2     the tidewater limits of the Gulf.

 4-3           (b)  The commission by rule shall require that any facility

 4-4     described in Subsection (a) of this section shall obtain an

 4-5     individual permit for any discharge prior to construction of the

 4-6     facility and that an application for such a permit must include the

 4-7     following:

 4-8                 (1)  a certification that a copy of the application has

 4-9     been filed by the applicant with the Texas Parks and Wildlife

4-10     Department and the commissioners court for the county in which the

4-11     facility is or is proposed to be located prior to or concurrently

4-12     with the filing of the application with the commission;

4-13                 (2)  a copy of a resolution from the county and city,

4-14     if the facility is or will be located within the corporate limits

4-15     or extraterritorial jurisdiction of a city, in which the facility

4-16     is located indicating the position of that local government on the

4-17     permitting of the facility or, if the applicant is unable to get

4-18     such a resolution, the sworn documentation that the applicant made

4-19     reasonable attempts to obtain such a resolution(s) including the

4-20     description of the attempts made.

4-21                 (3)  an environmental report describing in detail

4-22                       (A)  the site selection process for the facility,

4-23     including alternative locations considered and the basis for

4-24     selecting the requested location;

4-25                       (B)  the design and operating plans for the

4-26     facility, including plans for disease control, waste water

4-27     management and prevention of the creation of nuisance conditions;

 5-1                       (C)  the existing environmental conditions at the

 5-2     proposed site, including conditions in waters of the state from

 5-3     which any diversion of water is planned or into which a discharge

 5-4     is proposed; and

 5-5                       (D)  any potential impacts of water intake, waste

 5-6     discharges, dredging and any other significant activity related to

 5-7     the construction and operation of the facility on sensitive aquatic

 5-8     habitats in the areas of the proposed site and alternative sites

 5-9     that were evaluated.

5-10     All or a part of the requirements of this subsection for an

5-11     environmental report may be waived by the commission for

5-12     applications filed after January 1, 2002, if, by rule, the

5-13     commission provides for waiver and making a formal finding, based

5-14     on a factual record that, as a result of the development of

5-15     adequate experience and expertise, the commission is able to

5-16     adequately evaluate sites proposed for such facilities without all

5-17     or a part of the environmental reports.

5-18                 (4)  A description of the best management practices

5-19     that the applicant proposes for use in minimizing potential impacts

5-20     to the environment from activities including water intake and

5-21     entrainment, pond management at the facility for water and bottom

5-22     sediments, routine water exchange, management of water during

5-23     harvests, feeding regimes to minimize waste, and stocking

5-24     densities.

5-25           (c)  The commission shall give priority in its application

5-26     review process to any application for a facility described in

5-27     Subsection (a) above if

 6-1                 (1)  the governmental body of the county and city, if

 6-2     any, in which the facility is located has passed a resolution

 6-3     supporting the location and operations of the facility; or

 6-4                 (2)  the facility has limited its request for

 6-5     authorization to the production of native species of aquatic life,

 6-6     and will stock with only commercially raised animals.

 6-7           (d)  The commission may grant a discharge permit to a

 6-8     facility described in Subsection (a) above only if it finds:

 6-9                 (1)  the discharge will not cause a violation of any

6-10     water quality standard or other appropriate requirements imposed

6-11     pursuant to this chapter;

6-12                 (2)  the operator of the facility will use appropriate

6-13     best management practices adequate to minimize adverse effects to

6-14     the environment;

6-15                 (3)  the applicant has made reasonable efforts to

6-16     locate the facility in a manner that minimizes adverse impacts on

6-17     sensitive aquatic habitats;

6-18                 (4)  the operator will post a bond or provide other

6-19     appropriate financial assurance to the benefit of the commission,

6-20     if the permit authorizes the production of any exotic species.  The

6-21     amount of the financial assurance shall be sufficient to provide

6-22     the resources needed by the commission to quarantine the facility,

6-23     disinfect the facility of any viruses, dispose of any wastes and

6-24     return the land to a condition suitable for its prior uses, in case

6-25     of abandonment of the facility by the operator; and

6-26                 (5)  the permit provides

6-27                       (A)  a prohibition on any discharge of water from

 7-1     a facility if any disease is suspected or confirmed in any exotic

 7-2     species being raised or if the executive director or the executive

 7-3     director of the Texas Parks and Wildlife Department notifies the

 7-4     operator in writing that there is good cause to suspect the

 7-5     existence of disease at the facility.  The prohibition must remain

 7-6     in effect until the executive director of the Texas Parks and

 7-7     Wildlife Department issues a written order that discharges can

 7-8     begin;

 7-9                       (B)  a requirement that any unit in the facility

7-10     in which disease has been identified must be put in a condition of

7-11     quarantine with no movement of water or animals to or from the unit

7-12     until a written approval for the movement of water or species to or

7-13     from the unit is issued by the executive director of the Texas

7-14     Parks and Wildlife Department; and

7-15                       (C)  notwithstanding Section 481.143(a) of the

7-16     Government Code, that the operator will comply with the best

7-17     management practices applicable to facilities subject to this

7-18     section as determined by the commission, including amendments to

7-19     those best management practices adopted by the commission during

7-20     the pendency of the permit.

7-21                       (D)  that the facility must have and implement a

7-22     disease monitoring and response plan that includes:

7-23                             (i)  a periodic disease monitoring program;

7-24                             (ii)  immediate reporting of any indication

7-25     of disease or detection of disease to the executive director and

7-26     the executive director of the Texas Parks and Wildlife Department;

7-27                             (iii)  for any pond in which disease is

 8-1     suspected or confirmed, provisions for the use of netting or other

 8-2     similar steps to minimize the removal of diseased organisms by

 8-3     birds and other animals; and

 8-4                             (iv)  the immediate quarantine of any area

 8-5     in which disease is suspected or confirmed to assure that there is

 8-6     no release of water or animals from the area until authorized by

 8-7     the executive director of the Texas Parks and Wildlife Department.

 8-8           (e)  In this section, the term "mariculture" has the meaning

 8-9     assigned to it in Section 11.1421 of this code.

8-10           (f)  Construction of new facility or expansion of an existing

8-11     facility for the commercial production of shrimp or any exotic

8-12     species in any county bordering on the Gulf of Mexico or bordering

8-13     on the tidewater limits of the Gulf is prohibited until the permit

8-14     required under this chapter has been issued.

8-15           SECTION 3.  Chapter 66, Parks and Wildlife Code, is amended

8-16     to add a new Section 66.0071 to read as follows:

8-17           Sec. 66.0071.  LIMITATIONS ON ISSUANCE OF CERTAIN LICENSES

8-18     FOR EXOTIC SPECIES.  No license or other authorizations may be

8-19     issued or renewed for the possession of any exotic species of

8-20     shrimp for purposes of commercial production in any county

8-21     bordering on the Gulf of Mexico or on the tidewater limits of the

8-22     Gulf unless the applicant for the license, renewal or other

8-23     authorization proves to the department through a letter from the

8-24     Texas Natural Resource Conservation Commission stating that

8-25     facility to be used for commercial production

8-26           (a)  has all required discharge permits or other

8-27     authorizations from the Texas Natural Resource Conservation

 9-1     Commission for the discharge of waste waters from the production

 9-2     facility or

 9-3           (b)  does not need a discharge permit or other authorization

 9-4     since the production facility is adequately designed to operate

 9-5     without any discharge of waste waters.

 9-6           SECTION 4.  The importance of this legislation and the

 9-7     crowded condition of the calendars in both houses create an

 9-8     emergency and an imperative public necessity that the

 9-9     constitutional rule requiring bills to be read on three several

9-10     days in each house be suspended, and this rule is hereby suspended,

9-11     and that this Act take effect and be in force from and after its

9-12     passage, and it is so enacted.