By Wentworth                                    S.B. No. 1136

      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.