1-1 By: Wentworth S.B. No. 1136 1-2 (In the Senate - Filed March 11, 1997; March 13, 1997, read 1-3 first time and referred to Committee on Natural Resources; 1-4 April 28, 1997, reported adversely, with favorable Committee 1-5 Substitute by the following vote: Yeas 8, Nays 0; April 28, 1997, 1-6 sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1136 By: Wentworth 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to the authority of a political subdivision to prepare and 1-11 implement a regional habitat conservation plan or habitat 1-12 conservation plan or to enter into a conservation agreement. 1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-14 SECTION 1. Chapter 83, Parks and Wildlife Code, is amended 1-15 by designating Sections 83.001 through 83.004 as Subchapter A and 1-16 adding a heading to Subchapter A to read as follows: 1-17 SUBCHAPTER A. FEDERAL-STATE AGREEMENTS 1-18 SECTION 2. Subchapter A, Chapter 83, Parks and Wildlife 1-19 Code, as designated by this Act, is amended by adding Section 1-20 83.005 to read as follows: 1-21 Sec. 83.005. CONSERVATION AGREEMENTS FOR PROTECTION OF 1-22 SPECIES. (a) Any conservation agreement between a political 1-23 subdivision of the state and the United States Department of the 1-24 Interior must be developed in consultation with the Parks and 1-25 Wildlife Department and approved by the commission. 1-26 (b) In this section, "conservation agreement" includes an 1-27 agreement between the state or a political subdivision of the state 1-28 and the United States Department of the Interior under the federal 1-29 act that does not relate to a federal permit as defined by Section 1-30 83.011. 1-31 SECTION 3. Chapter 83, Parks and Wildlife Code, is amended 1-32 by adding Subchapter B to read as follows: 1-33 SUBCHAPTER B. HABITAT PROTECTION BY POLITICAL SUBDIVISIONS 1-34 Sec. 83.011. DEFINITIONS. In this chapter: 1-35 (1) "Biological advisory team" means three or more 1-36 professional biologists retained to provide biological guidance to 1-37 plan participants. 1-38 (2) "Endangered species" means a species listed by the 1-39 United States Department of the Interior as endangered or 1-40 threatened under the federal act. 1-41 (3) "Federal act" means the federal Endangered Species 1-42 Act of 1973 (16 U.S.C. Section 1531 et seq.), as amended. 1-43 (4) "Federal permit" means a permit issued under 1-44 Section 7 or 10(a) of the federal act. 1-45 (5) "Governmental entity" means a political 1-46 subdivision of the state, including: 1-47 (A) a municipality; and 1-48 (B) a county. 1-49 (6) "Habitat conservation plan" means a plan to 1-50 protect endangered species by habitat preserves and other 1-51 protection strategies developed in order to obtain a federal permit 1-52 under which: 1-53 (A) the land to be used as habitat preserves in 1-54 the habitat conservation plan must by owned by a plan participant; 1-55 or 1-56 (B) each owner of land in the habitat preserve 1-57 or proposed habitat preserve must have contractually agreed to have 1-58 all or part of the owner's land used or managed as a habitat 1-59 preserve. 1-60 (7) "Habitat preserve" means land set aside or managed 1-61 for the protection of endangered species under a federal permit. 1-62 (8) "Harm" means significant habitat modification or 1-63 degradation that, by significantly impairing essential behavioral 1-64 patterns, including breeding, feeding, sheltering, or migrating, is 2-1 the proximate cause of: 2-2 (A) the death of a member of an endangered 2-3 species; or 2-4 (B) the physical injury of a member of an 2-5 endangered species. 2-6 (9) "Land development standards" means rules or 2-7 ordinances regulating the development of land, including impervious 2-8 cover limitations, building setbacks, zoning, floor-to-area ratios, 2-9 building coverage, water quality controls and regulations, 2-10 landscaping, building height, development setbacks, compatibility 2-11 standards, traffic analyses, driveway cuts, impact fees, and 2-12 transfer of development rights. The term does not include fire or 2-13 building codes. 2-14 (10) "Mitigation fee" means a charge or in-kind 2-15 contribution that is based on the amount of harm and is paid or 2-16 provided to a plan participant in exchange for mitigation credit to 2-17 be used to comply with the federal act. 2-18 (11) "Plan participant" means a governmental entity 2-19 that develops, attempts to develop, adopts, approves, or 2-20 participates in a regional habitat conservation plan or habitat 2-21 conservation plan. 2-22 (12) "Regional habitat conservation plan" means a plan 2-23 or program to protect endangered species by habitat preserves or 2-24 other protection strategies developed in order to obtain a federal 2-25 permit that requires the acquisition or regulation of lands not 2-26 owned by a plan participant. 2-27 Sec. 83.012. PURPOSE. The purpose of this subchapter is to: 2-28 (1) establish the requirements for and authority of a 2-29 governmental entity to regulate wildlife through the development, 2-30 financing, and implementation of a regional habitat conservation 2-31 plan or a habitat conservation plan; 2-32 (2) encourage governmental entities to use the 2-33 authority under this subchapter to develop and implement habitat 2-34 conservation plans instead of regional habitat conservation plans; 2-35 (3) coordinate, to the greatest extent practicable, 2-36 habitat preserves with lands set aside or to be set aside under 2-37 local, state, or federal laws or regulations; 2-38 (4) prohibit plan participants from devaluing property 2-39 containing endangered species or endangered species habitat through 2-40 plan participant actions; and 2-41 (5) require plan participants of existing regional 2-42 habitat conservation plans to comply with the requirements of this 2-43 subchapter so that existing regional habitat conservation plans 2-44 become habitat conservation plans as quickly as possible. 2-45 Sec. 83.013. AUTHORITY OF DEPARTMENT OR POLITICAL 2-46 SUBDIVISION. (a) The department or a political subdivision may 2-47 participate in the study and preparation for and creation of a 2-48 habitat conservation plan. 2-49 (b) Subject to this subchapter, the department or a 2-50 political subdivision may participate in the study and preparation 2-51 for and creation of a regional habitat conservation plan. 2-52 (c) Subject to this subchapter, a political subdivision, 2-53 including a municipality acting within its corporate limits or its 2-54 extraterritorial jurisdiction, in order to facilitate the creation 2-55 of a habitat preserve and the setting aside of land to protect a 2-56 species protected under a conservation agreement, may: 2-57 (1) purchase land, easements, or leases; and 2-58 (2) enter into an agreement with a landowner to 2-59 establish alternative land development standards for a tract of 2-60 land. 2-61 (d) A plan participant may apply for a federal permit in 2-62 conjunction with a regional habitat conservation plan only if: 2-63 (1) the qualified voters of a plan participant have 2-64 authorized the issuance of bonds or other debt financing in an 2-65 amount equal to the estimated cost of acquiring all land for 2-66 habitat preserves within the time required by this subchapter or 2-67 the plan participant has demonstrated to the commission adequate 2-68 sources of funding to acquire all land for habitat preserves within 2-69 the times required by this subchapter; and 3-1 (2) the requirements of Section 83.015(e) have been 3-2 met. 3-3 (e) A governmental entity may not implement a regional 3-4 habitat conservation plan or apply for a federal permit in 3-5 conjunction with a regional habitat conservation plan if: 3-6 (1) the federal act is repealed; or 3-7 (2) the endangered species that are subject to 3-8 conservation and protection under the federal permit cease to be 3-9 listed as endangered by the United States Department of the 3-10 Interior. 3-11 (f) A political subdivision may implement a regional habitat 3-12 conservation plan that received a federal permit on or before 3-13 January 1, 1997, only if the plan participants comply with Sections 3-14 83.017(d), 83.018, and 83.019 within the time prescribed. If the 3-15 plan participants of such a regional habitat conservation plan do 3-16 not meet a deadline prescribed by Section 83.017(d), 83.018, or 3-17 83.019, the authority of the plan participants to implement and 3-18 operate the regional habitat conservation plan that received a 3-19 federal permit on or before January 1, 1997, or to implement any 3-20 other regional habitat conservation plan automatically terminates. 3-21 The plan participants may convert the regional habitat conservation 3-22 plan into a habitat conservation plan. 3-23 (g) Any owner of land within the boundaries of a regional 3-24 habitat conservation plan that received a federal permit on or 3-25 before January 1, 1997, may bring an action against a plan 3-26 participant of that regional habitat conservation plan to enforce 3-27 compliance with the requirements of this subchapter or for actual 3-28 damages proximately caused by the plan participant's failure to 3-29 comply with this subchapter. A landowner who obtains a judgment to 3-30 enforce this subchapter shall recover reasonable attorney's fees 3-31 from the plan participant. 3-32 (h) An amendment to a regional habitat conservation plan, 3-33 including a plan that received a federal permit on or before 3-34 January 1, 1997, shall be reviewed and must be approved by the 3-35 department for compliance with the purposes and requirements of 3-36 this subchapter before the amendment is submitted to the United 3-37 States Fish and Wildlife Service. 3-38 Sec. 83.014. LIMITATION OF POWERS; EXCLUSION AND INCLUSION 3-39 OF LAND. (a) A governmental entity may not impose a regulation, 3-40 rule, or ordinance related to endangered species unless the 3-41 regulation, rule, or ordinance relates to the management of a 3-42 habitat preserve owned by a plan participant. 3-43 (b) If property under common ownership lies both inside and 3-44 outside the area subject to a regional habitat conservation plan, 3-45 including a regional habitat conservation plan that received a 3-46 federal permit on or before January 1, 1997, the property shall be 3-47 excluded from the regional habitat conservation plan unless the 3-48 owners make a written request to include all or part of their 3-49 property in the regional habitat conservation plan. On receipt of 3-50 a written request to include or exclude property described in this 3-51 subsection, the plan participants shall submit and support an 3-52 appropriate amendment to the federal permit to include or exclude 3-53 the property. The approval or participation of a governmental 3-54 entity within the jurisdiction of which the property lies is not 3-55 required before including property outside the regional habitat 3-56 conservation plan boundaries or submitting an amendment to the 3-57 federal permit if the governmental entity is not a plan 3-58 participant. A written request to include land must be submitted 3-59 to a plan participant and the plan participants must submit the 3-60 necessary application to amend the federal permit not later than 3-61 the 90th day after the date of receipt of the written request. 3-62 (c) A governmental entity may not require a person to: 3-63 (1) pay a mitigation fee to a plan participant; 3-64 (2) set aside, lease, or convey real property as 3-65 habitat preserve; 3-66 (3) make the contribution or setting aside of real 3-67 property as habitat preserve a requirement for or condition of a 3-68 service provided or permit issued by the governmental entity; or 3-69 (4) pay a mitigation fee for property set aside or 4-1 restricted from development in any way under local, state, or other 4-2 federal law or regulation. 4-3 (d) A governmental entity may not spend money for the 4-4 development or implementation of a regional habitat conservation 4-5 plan or habitat conservation plan if that money is assessed or 4-6 collected under Subchapter C, Chapter 402, Local Government Code, 4-7 or is dedicated under other state law. 4-8 (e) A governmental entity may not discriminate against a 4-9 permit application, permit approval, or the provision of utility 4-10 service for property that: 4-11 (1) is or has been designated as habitat preserve or 4-12 potential habitat preserve in a regional habitat conservation plan 4-13 or habitat conservation plan; 4-14 (2) is designated as critical habitat under the 4-15 federal act; or 4-16 (3) has endangered species or endangered species 4-17 habitat. 4-18 (f) A governmental entity may not deny or limit available 4-19 water or wastewater service to property in the service area of the 4-20 governmental entity that has been designated as habitat preserve or 4-21 potential habitat preserve in a regional habitat conservation plan 4-22 or in a habitat conservation plan. For purposes of this 4-23 subsection, a governmental entity may not remove property from its 4-24 water or wastewater utility service areas after the date 4-25 established under Section 83.018(b). For a regional habitat 4-26 conservation plan that received a federal permit on or before 4-27 January 1, 1997, the plan participant may not remove the property 4-28 if the property was in the plan participant's service area on 4-29 January 1, 1996. Any property subject to this subsection that has 4-30 been removed from a plan participant's service area shall be 4-31 reinstated in the service area within 120 days after the date on 4-32 which this subchapter takes effect. 4-33 Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A regional 4-34 habitat conservation plan, including any mitigation fee, shall be 4-35 based on the amount of harm to each endangered species to be 4-36 protected under the regional habitat conservation plan. 4-37 (b) The size of proposed habitat preserves shall be based 4-38 solely on the amount of harm to the endangered species to be 4-39 protected in the regional habitat conservation plan. 4-40 (c) The plan participants, together with the commission and 4-41 the landowner members of the citizens advisory committee, shall 4-42 appoint a biological advisory team. At least one member shall be 4-43 appointed by the commission and one member by the landowner members 4-44 of the citizens advisory committee. The member appointed by the 4-45 commission serves as presiding officer of the team. The team shall 4-46 assist in: 4-47 (1) the calculation of harm to the endangered species; 4-48 and 4-49 (2) the sizing and configuring of the habitat 4-50 preserves. 4-51 (d) Meetings of the biological advisory team are subject to 4-52 the open meetings law, Chapter 551, Government Code, and all work 4-53 product of the biological advisory team is subject to the open 4-54 records law, Chapter 552, Government Code. 4-55 (e) A regional habitat conservation plan shall be reviewed 4-56 for compliance with this subchapter and must be approved by the 4-57 commission before an application for a federal permit is submitted. 4-58 The commission must concur with the calculation of harm used in the 4-59 regional habitat conservation plan and the size and configuration 4-60 of habitat preserves. 4-61 Sec. 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan 4-62 participants shall appoint a citizens advisory committee to assist 4-63 in preparing the regional habitat conservation plan and the 4-64 application for a federal permit. 4-65 (b) At least four members or 33 percent of the citizens 4-66 advisory committee, whichever is greater in number, must own 4-67 undeveloped property or property in agricultural use in the 4-68 regional habitat conservation plan area. A landowner member may 4-69 not: 5-1 (1) be an employee or elected official of a plan 5-2 participant or any other local, state, or federal governmental 5-3 entity; or 5-4 (2) be affiliated with any commonly recognized 5-5 environmental group. 5-6 (c) After proposed habitat preserves have been identified, 5-7 the plan participants shall appoint one additional landowner to the 5-8 citizens advisory committee. The additional landowner must comply 5-9 with Subsection (b). 5-10 (d) The commission shall appoint one representative to the 5-11 citizens advisory committee. The commission's representative is a 5-12 voting member of the committee. 5-13 Sec. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION 5-14 PLAN. (a) Meetings of the citizens advisory committee and 5-15 meetings of the plan participants regarding planning, development, 5-16 and implementation of the regional habitat conservation plan are 5-17 subject to the open meetings law, Chapter 551, Government Code. 5-18 (b) All data, reports, and other information regarding the 5-19 regional habitat conservation plan, including field notes, lab 5-20 notes, and any other information relied on by the biological 5-21 advisory team, are subject to the open records law, Chapter 552, 5-22 Government Code. 5-23 (c) The plan participants shall notify in writing each owner 5-24 of land identified by the plan participants as habitat preserve or 5-25 potential habitat preserve. The plan participants shall use the 5-26 county tax rolls to identify the owners of land identified as 5-27 habitat preserve or potential habitat preserve. The written notice 5-28 must include at least the following information: 5-29 (1) the tax identification and parcel numbers; 5-30 (2) the owner's name and address; 5-31 (3) an explanation of the designation or possible 5-32 designation of the tract as habitat preserve or potential habitat 5-33 preserve under the regional habitat conservation plan; 5-34 (4) identification of the citizens advisory committee 5-35 members, including telephone numbers, addresses, and the group that 5-36 each committee member represents; 5-37 (5) identification of employees or agents of plan 5-38 participants who can provide information about the regional habitat 5-39 conservation plan; 5-40 (6) the date of the next citizens advisory committee 5-41 meeting or plan participant meeting regarding the regional habitat 5-42 conservation plan; and 5-43 (7) a description of the status of the regional 5-44 habitat conservation plan. 5-45 (d) For a regional habitat conservation plan that received a 5-46 federal permit on or before January 1, 1997, notice required by 5-47 Subsection (c) shall be mailed not later than October 1, 1997, to 5-48 each landowner whose property has been designated under that plan 5-49 as habitat preserve or potential habitat preserve. 5-50 Sec. 83.018. PRESERVE ACQUISITION. (a) The designation of 5-51 a tract of land as habitat preserve or potential habitat preserve 5-52 or the presence of endangered species or endangered species habitat 5-53 may not be considered in determining the fair market value of the 5-54 property for acquisition as a habitat preserve. 5-55 (b) A change to plan participant rules and regulations, 5-56 including land development standards, that occurs after the 5-57 earliest date that the biological advisory team, citizen advisory 5-58 committee, or plan participant initially identifies a tract of land 5-59 as habitat preserve or potential habitat preserve may not be 5-60 considered in determining the fair market value of the property for 5-61 acquisition as a habitat preserve. 5-62 (c) Except as provided by Subsection (d), the plan 5-63 participants shall make offers based on fair market value to the 5-64 landowners for the acquisition of fee simple or other property 5-65 interest in land designated in the regional habitat conservation 5-66 plan as habitat preserve not later than two years after the 5-67 issuance of the federal permit or three years after the initial 5-68 application for the federal permit, whichever is earlier. 5-69 Acquisition of all habitat preserves must be completed not later 6-1 than the fourth anniversary of the date on which the federal permit 6-2 was issued. A plan participant subject to this subsection who does 6-3 not meet an applicable deadline shall file an application to amend 6-4 the federal permit to remove the nonacquired habitat preserve 6-5 property from the regional habitat conservation plan as a habitat 6-6 preserve not later than the 60th day after the fourth anniversary 6-7 of the date on which the federal permit was issued. 6-8 (d) For a regional habitat conservation plan that received a 6-9 federal permit on or before January 1, 1997, the plan participants 6-10 shall make offers based on fair market value to the landowners for 6-11 acquisition of fee simple or other property interest of land 6-12 designated in the federal permit as habitat preserve or potential 6-13 habitat preserve not later than January 1, 1998. Acquisition of 6-14 habitat preserves must be completed by January 1, 1999. A plan 6-15 participant subject to this subsection who does not meet the 6-16 deadlines specified in this subsection shall amend the federal 6-17 permit to remove the nonacquired habitat preserve property from the 6-18 regional habitat conservation plan and the federal permit as a 6-19 habitat preserve not later than March 1, 1998, for property not 6-20 receiving a fair market value offer by January 1, 1998, and not 6-21 later than March 1, 1999, for property not acquired by January 1, 6-22 1999. Except as otherwise provided by this subsection, property 6-23 removed as a habitat preserve or potential habitat preserve may not 6-24 be removed from the regional habitat conservation plan or habitat 6-25 conservation plan areas eligible to pay mitigation fees or 6-26 otherwise be denied the right to pay a mitigation fee and receive 6-27 corresponding credit. All or part of property that has been 6-28 removed as a habitat preserve or potential habitat preserve shall 6-29 be excluded from the regional habitat conservation plan if the 6-30 owners make a written request to be excluded from the regional 6-31 habitat conservation plan. The plan participants shall provide 6-32 written notice to the owner of property removed as a habitat 6-33 preserve or potential habitat preserve not later than the 6-34 applicable deadline established by this subsection. The notice 6-35 must inform the landowner of the right to withdraw all or part of 6-36 the land from the regional habitat conservation plan within six 6-37 months after the date of receipt of the notice. On removal of 6-38 property from a regional habitat conservation plan as a habitat 6-39 preserve or potential habitat preserve, the plan participants shall 6-40 cease describing, in any fashion, that property as habitat preserve 6-41 or potential habitat preserve. 6-42 (e) For a regional habitat conservation plan that received a 6-43 federal permit on or before January 1, 1997, the plan participants 6-44 shall request, not later than October 1, 1997, that the regional 6-45 habitat conservation plan and federal permit be amended so that the 6-46 total fee amount, including mitigation fees, administrative costs, 6-47 operation and maintenance costs, and filing fees, assessed or 6-48 charged under the regional habitat conservation plan may not exceed 6-49 $500 an acre of land to be modified in a manner that constitutes 6-50 harm. Notwithstanding Section 83.014(c), plan participants of a 6-51 regional habitat conservation plan that received a federal permit 6-52 on or before January 1, 1997, may amend the regional habitat 6-53 conservation plan to allow land in an adjacent county to 6-54 participate in the regional habitat conservation plan by paying a 6-55 mitigation fee. After October 1, 1997, plan participants may not 6-56 charge, assess, or collect a mitigation fee in an amount greater 6-57 than the amount authorized by this subsection. 6-58 Sec. 83.019. NOTICE AND HEARING REQUIREMENTS. (a) A plan 6-59 participant must comply with the notice and hearing requirements of 6-60 this section before adopting any regional habitat conservation 6-61 plan, plan amendment, ordinance, budget, fee schedule, rule, 6-62 regulation, or order to implement this subchapter. 6-63 (b) The plan participant, individually or through interlocal 6-64 contract, shall publish a notice, including a brief description of 6-65 the proposed action and the time and place of a public hearing on 6-66 the proposed action, not later than the 30th day before the public 6-67 hearing in the newspaper of largest general circulation in the 6-68 county in which the plan participant proposing the action is 6-69 located. 7-1 (c) A public hearing on the proposed action shall be held at 7-2 the time and place specified in the notice. 7-3 SECTION 4. Section 83.006, Parks and Wildlife Code, is 7-4 repealed. 7-5 SECTION 5. The importance of this legislation and the 7-6 crowded condition of the calendars in both houses create an 7-7 emergency and an imperative public necessity that the 7-8 constitutional rule requiring bills to be read on three several 7-9 days in each house be suspended, and this rule is hereby suspended, 7-10 and that this Act take effect and be in force from and after its 7-11 passage, and it is so enacted. 7-12 * * * * *