By: Wentworth S.B. No. 1136
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the authority of a political subdivision to prepare and
1-2 implement a regional habitat conservation plan or habitat
1-3 conservation plan or to enter into a conservation agreement.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 83, Parks and Wildlife Code, is amended
1-6 by designating Sections 83.001 through 83.004 as Subchapter A and
1-7 adding a heading to Subchapter A to read as follows:
1-8 SUBCHAPTER A. FEDERAL-STATE AGREEMENTS
1-9 SECTION 2. Subchapter A, Chapter 83, Parks and Wildlife
1-10 Code, as designated by this Act, is amended by adding Section
1-11 83.005 to read as follows:
1-12 Sec. 83.005. CONSERVATION AGREEMENTS FOR PROTECTION OF
1-13 SPECIES. (a) Any conservation agreement between a political
1-14 subdivision of the state and the United States Department of the
1-15 Interior must be developed in consultation with the Parks and
1-16 Wildlife Department and approved by the commission.
1-17 (b) In this section, "conservation agreement" includes an
1-18 agreement between the state or a political subdivision of the state
1-19 and the United States Department of the Interior under the federal
1-20 act that does not relate to a federal permit as defined by Section
1-21 83.011.
1-22 SECTION 3. Chapter 83, Parks and Wildlife Code, is amended
1-23 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 that does not require the regulation of non-habitat-preserve land
2-21 under which:
2-22 (A) the land to be used as habitat preserves in
2-23 the habitat conservation plan must be owned by a plan participant;
2-24 or
2-25 (B) each owner of land in the habitat preserve
3-1 or proposed habitat preserve must have contractually agreed to have
3-2 all or part of the owner's land used or managed as a habitat
3-3 preserve.
3-4 (7) "Habitat preserve" means land set aside or managed
3-5 for the protection of endangered species under a federal permit.
3-6 (8) "Harm" means significant habitat modification or
3-7 degradation that, by significantly impairing essential behavioral
3-8 patterns, including breeding, feeding, sheltering, or migrating, is
3-9 the proximate cause of:
3-10 (A) the death of a member of an endangered
3-11 species; or
3-12 (B) the physical injury of a member of an
3-13 endangered species.
3-14 (9) "Land development standards" means rules or
3-15 ordinances regulating the development of land, including impervious
3-16 cover limitations, building setbacks, zoning, floor-to-area ratios,
3-17 building coverage, water quality controls and regulations,
3-18 landscaping, building height, development setbacks, compatibility
3-19 standards, traffic analyses, driveway cuts, impact fees, and
3-20 transfer of development rights. The term does not include fire or
3-21 building codes.
3-22 (10) "Mitigation fee" means a charge or in-kind
3-23 contribution that is based on the amount of harm and is paid or
3-24 provided to a plan participant in exchange for mitigation credit to
3-25 be used to comply with the federal act.
4-1 (11) "Plan participant" means a governmental entity
4-2 that develops, attempts to develop, adopts, approves, or
4-3 participates in a regional habitat conservation plan or habitat
4-4 conservation plan.
4-5 (12) "Regional habitat conservation plan" means a plan
4-6 or program to protect endangered species by habitat preserves or
4-7 other protection strategies developed in order to obtain a federal
4-8 permit that requires the acquisition or regulation of lands not
4-9 owned by a plan participant.
4-10 Sec. 83.012. PURPOSE. The purpose of this subchapter is to:
4-11 (1) establish the requirements for and authority of a
4-12 governmental entity to regulate wildlife through the development,
4-13 financing, and implementation of a regional habitat conservation
4-14 plan or a habitat conservation plan;
4-15 (2) encourage governmental entities to use the
4-16 authority under this subchapter to develop and implement habitat
4-17 conservation plans instead of regional habitat conservation plans;
4-18 (3) coordinate, to the greatest extent practicable,
4-19 habitat preserves with lands set aside or to be set aside under
4-20 local, state, or federal laws or regulations;
4-21 (4) prohibit plan participants from devaluing property
4-22 containing endangered species or endangered species habitat through
4-23 plan participant actions; and
4-24 (5) require plan participants of existing regional
4-25 habitat conservation plans to comply with the requirements of this
5-1 subchapter so that existing regional habitat conservation plans
5-2 become habitat conservation plans as quickly as possible.
5-3 Sec. 83.013. AUTHORITY OF DEPARTMENT OR POLITICAL
5-4 SUBDIVISION. (a) The department or a political subdivision may
5-5 participate in the study and preparation for and creation of a
5-6 habitat conservation plan.
5-7 (b) Subject to this subchapter, the department or a
5-8 political subdivision may participate in the study and preparation
5-9 for and creation of a regional habitat conservation plan.
5-10 (c) Subject to this subchapter, a political subdivision,
5-11 including a municipality acting within its corporate limits or its
5-12 extraterritorial jurisdiction, in order to facilitate the creation
5-13 of a habitat preserve and the setting aside of land to protect a
5-14 species protected under a conservation agreement, may:
5-15 (1) purchase land, easements, or leases; and
5-16 (2) enter into an agreement with a landowner to
5-17 establish alternative land development standards for a tract of
5-18 land.
5-19 (d) A plan participant may apply for a federal permit in
5-20 conjunction with a regional habitat conservation plan only if:
5-21 (1) the qualified voters of a plan participant have
5-22 authorized the issuance of bonds or other debt financing in an
5-23 amount equal to the estimated cost of acquiring all land for
5-24 habitat preserves within the time required by this subchapter or
5-25 the plan participant has demonstrated to the commission adequate
6-1 sources of funding to acquire all land for habitat preserves within
6-2 the times required by this subchapter; and
6-3 (2) the requirements of Section 83.015(e) have been
6-4 met.
6-5 (e) A governmental entity may not implement a regional
6-6 habitat conservation plan or apply for a federal permit in
6-7 conjunction with a regional habitat conservation plan if:
6-8 (1) the federal act is repealed; or
6-9 (2) the endangered species that are subject to
6-10 conservation and protection under the federal permit cease to be
6-11 listed as endangered by the United States Department of the
6-12 Interior.
6-13 (f) A political subdivision may implement a regional habitat
6-14 conservation plan that received a federal permit on or before
6-15 January 1, 1997, only if the plan participants comply with Sections
6-16 83.017(d), 83.018, and 83.019 within the time prescribed. If the
6-17 plan participants of such a regional habitat conservation plan do
6-18 not meet a deadline prescribed by Section 83.017(d), 83.018, or
6-19 83.019, the authority of the plan participants to implement and
6-20 operate the regional habitat conservation plan that received a
6-21 federal permit on or before January 1, 1997, or to implement any
6-22 other regional habitat conservation plan automatically terminates.
6-23 The plan participants may convert the regional habitat conservation
6-24 plan into a habitat conservation plan.
6-25 (g) Any owner of land within the boundaries of a regional
7-1 habitat conservation plan that received a federal permit on or
7-2 before January 1, 1997, may bring an action against a plan
7-3 participant of that regional habitat conservation plan to enforce
7-4 compliance with the requirements of this subchapter or for actual
7-5 damages proximately caused by the plan participant's failure to
7-6 comply with this subchapter. A landowner who obtains a judgment to
7-7 enforce this subchapter shall recover reasonable attorney's fees
7-8 from the plan participant.
7-9 (h) An amendment to a regional habitat conservation plan,
7-10 including a plan that received a federal permit on or before
7-11 January 1, 1997, shall be reviewed and must be approved by the
7-12 department for compliance with the purposes and requirements of
7-13 this subchapter before the amendment is submitted to the United
7-14 States Fish and Wildlife Service.
7-15 Sec. 83.014. LIMITATION OF POWERS; EXCLUSION AND INCLUSION
7-16 OF LAND. (a) A governmental entity may not impose a regulation,
7-17 rule, or ordinance related to endangered species unless the
7-18 regulation, rule, or ordinance relates to the management of a
7-19 habitat preserve owned by a plan participant.
7-20 (b) If property under common ownership lies both inside and
7-21 outside the area subject to a regional habitat conservation plan,
7-22 including a regional habitat conservation plan that received a
7-23 federal permit on or before January 1, 1997, the property shall be
7-24 excluded from the regional habitat conservation plan unless the
7-25 owners make a written request to include all or part of their
8-1 property in the regional habitat conservation plan. On receipt of
8-2 a written request to include or exclude property described in this
8-3 subsection, the plan participants shall submit and support an
8-4 appropriate amendment to the federal permit to include or exclude
8-5 the property. The approval or participation of a governmental
8-6 entity within the jurisdiction of which the property lies is not
8-7 required before including property outside the regional habitat
8-8 conservation plan boundaries or submitting an amendment to the
8-9 federal permit if the governmental entity is not a plan
8-10 participant. A written request to include land must be submitted
8-11 to a plan participant and the plan participants must submit the
8-12 necessary application to amend the federal permit not later than
8-13 the 90th day after the date of receipt of the written request.
8-14 (c) A governmental entity may not require a person to:
8-15 (1) pay a mitigation fee to a plan participant;
8-16 (2) set aside, lease, or convey real property as
8-17 habitat preserve;
8-18 (3) make the contribution or setting aside of real
8-19 property as habitat preserve a requirement for or condition of a
8-20 service provided or permit issued by the governmental entity; or
8-21 (4) pay a mitigation fee for property set aside or
8-22 restricted from development in any way under local, state, or other
8-23 federal law or regulation.
8-24 (d) A governmental entity may not spend money for the
8-25 development or implementation of a regional habitat conservation
9-1 plan or habitat conservation plan if that money is assessed or
9-2 collected under Subchapter C, Chapter 402, Local Government Code,
9-3 or is dedicated under other state law.
9-4 (e) A governmental entity may not discriminate against a
9-5 permit application, permit approval, or the provision of utility
9-6 service for property that:
9-7 (1) is or has been designated as habitat preserve or
9-8 potential habitat preserve in a regional habitat conservation plan
9-9 or habitat conservation plan;
9-10 (2) is designated as critical habitat under the
9-11 federal act; or
9-12 (3) has endangered species or endangered species
9-13 habitat.
9-14 (f) A governmental entity may not deny or limit available
9-15 water or wastewater service to property in the service area of the
9-16 governmental entity that has been designated as habitat preserve or
9-17 potential habitat preserve in a regional habitat conservation plan
9-18 or in a habitat conservation plan. For purposes of this
9-19 subsection, a governmental entity may not remove property from its
9-20 water or wastewater utility service areas after the date
9-21 established under Section 83.018(b). For a regional habitat
9-22 conservation plan that received a federal permit on or before
9-23 January 1, 1997, the plan participant may not remove the property
9-24 if the property was in the plan participant's service area on
9-25 January 1, 1996. Any property subject to this subsection that has
10-1 been removed from a plan participant's service area shall be
10-2 reinstated in the service area within 120 days after the date on
10-3 which this subchapter takes effect.
10-4 Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A regional
10-5 habitat conservation plan, including any mitigation fee, shall be
10-6 based on the amount of harm to each endangered species to be
10-7 protected under the regional habitat conservation plan.
10-8 (b) The size of proposed habitat preserves shall be based
10-9 solely on the amount of harm to the endangered species to be
10-10 protected in the regional habitat conservation plan.
10-11 (c) The plan participants, together with the commission and
10-12 the landowner members of the citizens advisory committee, shall
10-13 appoint a biological advisory team. At least one member shall be
10-14 appointed by the commission and one member by the landowner members
10-15 of the citizens advisory committee. The member appointed by the
10-16 commission serves as presiding officer of the team. The team shall
10-17 assist in:
10-18 (1) the calculation of harm to the endangered species;
10-19 and
10-20 (2) the sizing and configuring of the habitat
10-21 preserves.
10-22 (d) Meetings of the biological advisory team are subject to
10-23 the open meetings law, Chapter 551, Government Code, and all work
10-24 product of the biological advisory team is subject to the open
10-25 records law, Chapter 552, Government Code.
11-1 (e) A regional habitat conservation plan shall be reviewed
11-2 for compliance with this subchapter and must be approved by the
11-3 commission before an application for a federal permit is submitted.
11-4 The commission must concur with the calculation of harm used in the
11-5 regional habitat conservation plan and the size and configuration
11-6 of habitat preserves.
11-7 Sec. 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan
11-8 participants shall appoint a citizens advisory committee to assist
11-9 in preparing the regional habitat conservation plan and the
11-10 application for a federal permit.
11-11 (b) At least four members or 33 percent of the citizens
11-12 advisory committee, whichever is greater in number, must own
11-13 undeveloped property or property in agricultural use in the
11-14 regional habitat conservation plan area. A landowner member may
11-15 not:
11-16 (1) be an employee or elected official of a plan
11-17 participant or any other local, state, or federal governmental
11-18 entity; or
11-19 (2) be affiliated with any commonly recognized
11-20 environmental group.
11-21 (c) After proposed habitat preserves have been identified,
11-22 the plan participants shall appoint one additional landowner to the
11-23 citizens advisory committee. The additional landowner must comply
11-24 with Subsection (b).
11-25 (d) The commission shall appoint one representative to the
12-1 citizens advisory committee. The commission's representative is a
12-2 voting member of the committee.
12-3 Sec. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION
12-4 PLAN. (a) Meetings of the citizens advisory committee and
12-5 meetings of the plan participants regarding planning, development,
12-6 and implementation of the regional habitat conservation plan are
12-7 subject to the open meetings law, Chapter 551, Government Code.
12-8 (b) All data, reports, and other information regarding the
12-9 regional habitat conservation plan, including field notes, lab
12-10 notes, and any other information relied on by the biological
12-11 advisory team, are subject to the open records law, Chapter 552,
12-12 Government Code.
12-13 (c) The plan participants shall notify in writing each owner
12-14 of land identified by the plan participants as habitat preserve or
12-15 potential habitat preserve. The plan participants shall use the
12-16 county tax rolls to identify the owners of land identified as
12-17 habitat preserve or potential habitat preserve. The written notice
12-18 must include at least the following information:
12-19 (1) the tax identification and parcel numbers;
12-20 (2) the owner's name and address;
12-21 (3) an explanation of the designation or possible
12-22 designation of the tract as habitat preserve or potential habitat
12-23 preserve under the regional habitat conservation plan;
12-24 (4) identification of the citizens advisory committee
12-25 members, including telephone numbers, addresses, and the group that
13-1 each committee member represents;
13-2 (5) identification of employees or agents of plan
13-3 participants who can provide information about the regional habitat
13-4 conservation plan;
13-5 (6) the date of the next citizens advisory committee
13-6 meeting or plan participant meeting regarding the regional habitat
13-7 conservation plan; and
13-8 (7) a description of the status of the regional
13-9 habitat conservation plan.
13-10 (d) For a regional habitat conservation plan that received a
13-11 federal permit on or before January 1, 1997, notice required by
13-12 Subsection (c) shall be mailed not later than October 1, 1997, to
13-13 each landowner whose property has been designated under that plan
13-14 as habitat preserve or potential habitat preserve.
13-15 Sec. 83.018. PRESERVE ACQUISITION. (a) The designation of
13-16 a tract of land as habitat preserve or potential habitat preserve
13-17 or the presence of endangered species or endangered species habitat
13-18 may not be considered in determining the fair market value of the
13-19 property for acquisition as a habitat preserve.
13-20 (b) A change to plan participant rules and regulations,
13-21 including land development standards, that occurs after the
13-22 earliest date that the biological advisory team, citizens advisory
13-23 committee, or plan participant initially identifies a tract of land
13-24 as habitat preserve or potential habitat preserve may not be
13-25 considered in determining the fair market value of the property for
14-1 acquisition as a habitat preserve.
14-2 (c) Except as provided by Subsection (d), the plan
14-3 participants shall make offers based on fair market value to the
14-4 landowners for the acquisition of fee simple or other property
14-5 interest in land designated in the regional habitat conservation
14-6 plan as habitat preserve not later than two years after the
14-7 issuance of the federal permit or three years after the initial
14-8 application for the federal permit, whichever is earlier.
14-9 Acquisition of all habitat preserves must be completed not later
14-10 than the fourth anniversary of the date on which the federal permit
14-11 was issued. A plan participant subject to this subsection who does
14-12 not meet an applicable deadline shall file an application to amend
14-13 the federal permit to remove the nonacquired habitat preserve
14-14 property from the regional habitat conservation plan as a habitat
14-15 preserve not later than the 60th day after the fourth anniversary
14-16 of the date on which the federal permit was issued.
14-17 (d) For a regional habitat conservation plan that received a
14-18 federal permit on or before January 1, 1997, the plan participants
14-19 shall make offers based on fair market value to the landowners for
14-20 acquisition of fee simple or other property interest of land
14-21 designated in the federal permit as habitat preserve or potential
14-22 habitat preserve not later than January 1, 1998. Acquisition of
14-23 habitat preserves must be completed by January 1, 1999. A plan
14-24 participant subject to this subsection who does not meet the
14-25 deadlines specified in this subsection shall amend the federal
15-1 permit to remove the nonacquired habitat preserve property from the
15-2 regional habitat conservation plan and the federal permit as a
15-3 habitat preserve not later than March 1, 1998, for property not
15-4 receiving a fair market value offer by January 1, 1998, and not
15-5 later than March 1, 1999, for property not acquired by January 1,
15-6 1999. Except as otherwise provided by this subsection, property
15-7 removed as a habitat preserve or potential habitat preserve may not
15-8 be removed from the regional habitat conservation plan or habitat
15-9 conservation plan areas eligible to pay mitigation fees or
15-10 otherwise be denied the right to pay a mitigation fee and receive
15-11 corresponding credit. All or part of property that has been
15-12 removed as a habitat preserve or potential habitat preserve shall
15-13 be excluded from the regional habitat conservation plan if the
15-14 owners make a written request to be excluded from the regional
15-15 habitat conservation plan. The plan participants shall provide
15-16 written notice to the owner of property removed as a habitat
15-17 preserve or potential habitat preserve not later than the
15-18 applicable deadline established by this subsection. The notice
15-19 must inform the landowner of the right to withdraw all or part of
15-20 the land from the regional habitat conservation plan within six
15-21 months after the date of receipt of the notice. On removal of
15-22 property from a regional habitat conservation plan as a habitat
15-23 preserve or potential habitat preserve, the plan participants shall
15-24 cease describing, in any fashion, that property as habitat preserve
15-25 or potential habitat preserve.
16-1 (e) For a regional habitat conservation plan that received a
16-2 federal permit on or before January 1, 1997, the plan participants
16-3 shall request, not later than October 1, 1997, that the regional
16-4 habitat conservation plan and federal permit be amended so that the
16-5 total fee amount, including mitigation fees, administrative costs,
16-6 operation and maintenance costs, and filing fees, assessed or
16-7 charged under the regional habitat conservation plan may not exceed
16-8 $500 an acre of land to be modified in a manner that constitutes
16-9 harm. Notwithstanding Section 83.014(c), plan participants of a
16-10 regional habitat conservation plan that received a federal permit
16-11 on or before January 1, 1997, may amend the regional habitat
16-12 conservation plan to allow land in an adjacent county to
16-13 participate in the regional habitat conservation plan by paying a
16-14 mitigation fee. After October 1, 1997, plan participants of a
16-15 regional habitat conservation plan that received a federal permit
16-16 on or before January 1, 1997, may not charge, assess, or collect a
16-17 mitigation fee in an amount greater than the amount authorized by
16-18 this subsection.
16-19 Sec. 83.019. NOTICE AND HEARING REQUIREMENTS. (a) A plan
16-20 participant must comply with the notice and hearing requirements of
16-21 this section before adopting any regional habitat conservation
16-22 plan, plan amendment, ordinance, budget, fee schedule, rule,
16-23 regulation, or order to implement this subchapter.
16-24 (b) The plan participant, individually or through interlocal
16-25 contract, shall publish a notice, including a brief description of
17-1 the proposed action and the time and place of a public hearing on
17-2 the proposed action, not later than the 30th day before the public
17-3 hearing in the newspaper of largest general circulation in the
17-4 county in which the plan participant proposing the action is
17-5 located.
17-6 (c) A public hearing on the proposed action shall be held at
17-7 the time and place specified in the notice.
17-8 SECTION 4. Section 83.006, Parks and Wildlife Code, is
17-9 repealed.
17-10 SECTION 5. The importance of this legislation and the
17-11 crowded condition of the calendars in both houses create an
17-12 emergency and an imperative public necessity that the
17-13 constitutional rule requiring bills to be read on three several
17-14 days in each house be suspended, and this rule is hereby suspended,
17-15 and that this Act take effect and be in force from and after its
17-16 passage, and it is so enacted.