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                                  * * * * *