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.