76R3939 MI-F
By Turner of Coleman, Keel H.B. No. 430
Substitute the following for H.B. No. 430:
By Turner of Coleman C.S.H.B. No. 430
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 habitat
1-4 conservation plan or to enter into a conservation agreement.
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 PROTECTION OF
1-14 SPECIES. (a) Any conservation agreement between a political
1-15 subdivision of the state and the United States Department of the
1-16 Interior must be developed in consultation with the Parks and
1-17 Wildlife Department.
1-18 (b) In this section, "conservation agreement" includes an
1-19 agreement between the state or a political subdivision of the state
1-20 and the United States Department of the Interior under the federal
1-21 act that does not relate to a federal permit as defined by Section
1-22 83.011.
1-23 SECTION 3. Chapter 83, Parks and Wildlife Code, is amended
1-24 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
2-20 permit.
2-21 (7) "Habitat preserve" means land set aside or managed
2-22 for the protection of endangered species under a federal permit.
2-23 (8) "Harm" means significant habitat modification or
2-24 degradation that, by significantly impairing essential behavioral
2-25 patterns, including breeding, feeding, sheltering, or migrating, is
2-26 the proximate cause of:
2-27 (A) the death of a member of an endangered
3-1 species; or
3-2 (B) the physical injury of a member of an
3-3 endangered species.
3-4 (9) "Land development standards" means rules or
3-5 ordinances regulating the development of land, including impervious
3-6 cover limitations, building setbacks, zoning, floor-to-area ratios,
3-7 building coverage, water quality controls and regulations,
3-8 landscaping, building height, development setbacks, compatibility
3-9 standards, traffic analyses, driveway cuts, impact fees, and
3-10 transfer of development rights. The term does not include fire or
3-11 building codes.
3-12 (10) "Mitigation fee" means a charge or in-kind
3-13 contribution that is based on the amount of harm and is paid or
3-14 provided to a plan participant in exchange for mitigation credit to
3-15 be used to comply with the federal act.
3-16 (11) "Plan participant" means a governmental entity
3-17 that develops, attempts to develop, adopts, approves, or
3-18 participates in a regional habitat conservation plan or habitat
3-19 conservation plan.
3-20 (12) "Regional habitat conservation plan" means a plan
3-21 or program to protect endangered species by habitat preserves or
3-22 other protection strategies developed in order to obtain a federal
3-23 permit that requires the acquisition or regulation of lands not
3-24 owned by a plan participant.
3-25 Sec. 83.012. PURPOSE. The purpose of this subchapter is to:
3-26 (1) establish the requirements for and authority of a
3-27 governmental entity to regulate wildlife through the development,
4-1 financing, and implementation of a regional habitat conservation
4-2 plan or a habitat conservation plan;
4-3 (2) encourage governmental entities to use the
4-4 authority under this subchapter to develop and implement habitat
4-5 conservation plans instead of regional habitat conservation plans;
4-6 (3) coordinate, to the greatest extent practicable,
4-7 habitat preserves with lands set aside or to be set aside under
4-8 local, state, or federal laws or regulations;
4-9 (4) prohibit plan participants from devaluing property
4-10 containing endangered species or endangered species habitat through
4-11 plan participant actions; and
4-12 (5) require plan participants of existing regional
4-13 habitat conservation plans to comply with the requirements of this
4-14 subchapter so that existing regional habitat conservation plans
4-15 become habitat conservation plans as quickly as possible.
4-16 Sec. 83.013. AUTHORITY OF DEPARTMENT OR POLITICAL
4-17 SUBDIVISION. (a) The department or a political subdivision may
4-18 participate in the study and preparation for and creation of a
4-19 habitat conservation plan.
4-20 (b) Subject to this subchapter, the department or a
4-21 political subdivision may participate in the study and preparation
4-22 for and creation of a regional habitat conservation plan.
4-23 (c) Subject to this subchapter, a political subdivision,
4-24 including a municipality acting within its corporate limits or its
4-25 extraterritorial jurisdiction, in order to facilitate the creation
4-26 of a habitat preserve and the setting aside of land to protect a
4-27 species protected under a conservation agreement, may:
5-1 (1) purchase land, easements, or leases; and
5-2 (2) enter into an agreement with a landowner to
5-3 establish alternative land development standards for a tract of
5-4 land.
5-5 (d) A plan participant may apply for a federal permit in
5-6 conjunction with a regional habitat conservation plan only if the
5-7 qualified voters of a plan participant have authorized the issuance
5-8 of bonds or other debt financing in an amount equal to the
5-9 estimated cost of acquiring all land for habitat preserves within
5-10 the time required by this subchapter or the plan participant has
5-11 demonstrated that adequate sources of funding exist to acquire all
5-12 land for habitat preserves within the time required by this
5-13 subchapter.
5-14 (e) A governmental entity may not implement a regional
5-15 habitat conservation plan or apply for a federal permit in
5-16 conjunction with a regional habitat conservation plan if:
5-17 (1) the federal act is repealed; or
5-18 (2) the endangered species that are subject to
5-19 conservation and protection under the federal permit cease to be
5-20 listed as endangered by the United States Department of the
5-21 Interior.
5-22 Sec. 83.014. LIMITATION OF POWERS. (a) A governmental
5-23 entity may not impose a regulation, rule, or ordinance related to
5-24 endangered species unless the regulation, rule, or ordinance
5-25 relates to the operation or management of a habitat preserve owned
5-26 by a plan participant.
5-27 (b) A governmental entity may not discriminate against a
6-1 permit application, permit approval, or the provision of utility
6-2 service for property that:
6-3 (1) is or has been designated as habitat preserve or
6-4 potential habitat preserve in a regional habitat conservation plan
6-5 or habitat conservation plan;
6-6 (2) is designated as critical habitat under the
6-7 federal act; or
6-8 (3) has endangered species or endangered species
6-9 habitat.
6-10 (c) A governmental entity may not deny or limit available
6-11 water or wastewater service to property in the service area of the
6-12 governmental entity that has been designated as habitat preserve or
6-13 potential habitat preserve in a regional habitat conservation plan
6-14 or in a habitat conservation plan. For purposes of this
6-15 subsection, a governmental entity may not remove property from its
6-16 water or wastewater utility service areas after the date
6-17 established under Section 83.018(b).
6-18 Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A regional
6-19 habitat conservation plan, including any mitigation fee, shall be
6-20 based on the amount of harm to each endangered species to be
6-21 protected under the regional habitat conservation plan.
6-22 (b) The size of proposed habitat preserves shall be based
6-23 solely on the amount of harm to the endangered species to be
6-24 protected in the regional habitat conservation plan.
6-25 (c) The plan participants, together with the commission and
6-26 the landowner members of the citizens advisory committee, shall
6-27 appoint a biological advisory team. At least one member shall be
7-1 appointed by the commission and one member by the landowner members
7-2 of the citizens advisory committee. The member appointed by the
7-3 commission serves as presiding officer of the team. The team shall
7-4 assist in:
7-5 (1) the calculation of harm to the endangered species;
7-6 and
7-7 (2) the sizing and configuring of the habitat
7-8 preserves.
7-9 (d) Meetings of the biological advisory team are subject to
7-10 the open meetings law, Chapter 551, Government Code, and all work
7-11 product of the biological advisory team is subject to the open
7-12 records law, Chapter 552, Government Code.
7-13 Sec. 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan
7-14 participants shall appoint a citizens advisory committee to assist
7-15 in preparing the regional habitat conservation plan and the
7-16 application for a federal permit.
7-17 (b) At least four members or 33 percent of the citizens
7-18 advisory committee, whichever is greater in number, must own
7-19 undeveloped property or property in agricultural use in the
7-20 regional habitat conservation plan area. A landowner member may
7-21 not be an employee or elected official of a plan participant or any
7-22 other local, state, or federal governmental entity.
7-23 (c) One-half of the landowner members appointed under
7-24 Subsection (b) or, if the number of landowner members appointed is
7-25 odd, the smallest number of landowner members that constitutes a
7-26 majority may not be affiliated with any commonly recognized
7-27 environmental group.
8-1 (d) The commission shall appoint one representative to the
8-2 citizens advisory committee. The commission's representative is a
8-3 voting member of the committee.
8-4 Sec. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION
8-5 PLAN. (a) Meetings of the citizens advisory committee and
8-6 meetings of the plan participants regarding planning, development,
8-7 and implementation of the regional habitat conservation plan are
8-8 subject to the open meetings law, Chapter 551, Government Code.
8-9 (b) All data, reports, and other information regarding the
8-10 regional habitat conservation plan, including field notes, lab
8-11 notes, and any other information relied on by the biological
8-12 advisory team, are subject to the open records law, Chapter 552,
8-13 Government Code.
8-14 (c) The plan participants shall notify in writing each owner
8-15 of land identified by the plan participants as habitat preserve or
8-16 potential habitat preserve. The plan participants shall use the
8-17 county tax rolls to identify the owners of land identified as
8-18 habitat preserve or potential habitat preserve. The written notice
8-19 must include at least the following information:
8-20 (1) the tax identification and parcel numbers;
8-21 (2) the owner's name and address;
8-22 (3) an explanation of the designation or possible
8-23 designation of the tract as habitat preserve or potential habitat
8-24 preserve under the regional habitat conservation plan;
8-25 (4) identification of the citizens advisory committee
8-26 members, including telephone numbers, addresses, and the group that
8-27 each committee member represents;
9-1 (5) identification of employees or agents of plan
9-2 participants who can provide information about the regional habitat
9-3 conservation plan;
9-4 (6) the date of the next citizens advisory committee
9-5 meeting or plan participant meeting regarding the regional habitat
9-6 conservation plan; and
9-7 (7) a description of the status of the regional
9-8 habitat conservation plan.
9-9 Sec. 83.018. PRESERVE ACQUISITION. (a) The designation of
9-10 a tract of land as habitat preserve or potential habitat preserve
9-11 or the presence of endangered species or endangered species habitat
9-12 may not be considered in determining the fair market value of the
9-13 property for acquisition as a habitat preserve.
9-14 (b) A change to plan participant rules and regulations,
9-15 including land development standards, that occurs after the
9-16 earliest date that the biological advisory team, citizens advisory
9-17 committee, or plan participant initially identifies a tract of land
9-18 as habitat preserve or potential habitat preserve may not be
9-19 considered in determining the fair market value of the property for
9-20 acquisition as a habitat preserve.
9-21 (c) The plan participants shall make offers based on fair
9-22 market value to the landowners for the acquisition of fee simple or
9-23 other property interest in land designated in the regional habitat
9-24 conservation plan as habitat preserve not later than two years
9-25 after the issuance of the federal permit or three years after the
9-26 initial application for the federal permit, whichever is earlier.
9-27 Acquisition of all habitat preserves must be completed not later
10-1 than the fourth anniversary of the date on which the federal permit
10-2 was issued. A plan participant subject to this subsection who does
10-3 not meet an applicable deadline shall file an application to amend
10-4 the federal permit to remove the nonacquired habitat preserve
10-5 property from the regional habitat conservation plan as a habitat
10-6 preserve not later than the 60th day after the fourth anniversary
10-7 of the date on which the federal permit was issued.
10-8 Sec. 83.019. NOTICE AND HEARING REQUIREMENTS. (a) A plan
10-9 participant must comply with the notice and hearing requirements of
10-10 this section before adopting any regional habitat conservation
10-11 plan, plan amendment, ordinance, budget, fee schedule, rule,
10-12 regulation, or order to implement this subchapter.
10-13 (b) The plan participant, individually or through interlocal
10-14 contract, shall publish a notice, including a brief description of
10-15 the proposed action and the time and place of a public hearing on
10-16 the proposed action, not later than the 30th day before the public
10-17 hearing in the newspaper of largest general circulation in the
10-18 county in which the plan participant proposing the action is
10-19 located.
10-20 (c) A public hearing on the proposed action shall be held at
10-21 the time and place specified in the notice.
10-22 Sec. 83.020. GRIEVANCE WITH DEVELOPMENT OF REGIONAL HABITAT
10-23 CONSERVATION PLAN. (a) An individual appointed to a citizens
10-24 advisory committee under Section 83.016(b) may file a grievance
10-25 with the commission regarding the development of a regional habitat
10-26 conservation plan under this subchapter if the individual believes
10-27 that the plan is being developed in violation of this subchapter.
11-1 The individual filing the grievance must have been a member of the
11-2 citizens advisory committee for the plan named in the grievance.
11-3 (b) The grievance must cite each provision of this
11-4 subchapter alleged to have been violated during the development of
11-5 the plan and must describe each act alleged to have violated this
11-6 subchapter.
11-7 (c) The commission shall review a grievance filed under this
11-8 section to determine whether the plan is being developed in
11-9 compliance with this subchapter. If after reviewing the grievance
11-10 the commission finds that the grievance has no merit, the
11-11 commission may dismiss the grievance. If the commission finds that
11-12 the grievance does have merit, the commission must hold a public
11-13 hearing in accordance with Chapter 551, Government Code. The
11-14 commission shall take testimony from each plan participant and
11-15 from the individual filing the grievance. On conclusion of
11-16 testimony, the commission shall vote on whether to approve or
11-17 dismiss the grievance or to schedule a public hearing not later
11-18 than the 30th day after the conclusion of the initial public
11-19 hearing and to vote after the conclusion of that hearing whether to
11-20 approve or dismiss the grievance.
11-21 (d) If the commission approves the grievance, the commission
11-22 shall instruct the plan participant or participants to amend the
11-23 plan so that it will comply with this subchapter. The plan
11-24 participant may not submit an application for a federal permit
11-25 until the commission is satisfied its instructions to amend the
11-26 plan to comply with this subchapter have been met.
11-27 (e) A plan participant in a plan that is the subject of a
12-1 grievance filed with the commission may not submit an application
12-2 for a federal permit before the commission:
12-3 (1) has dismissed the grievance; or
12-4 (2) if the commission approves the grievance, has
12-5 determined that the commission's recommended amendments to the plan
12-6 have been made.
12-7 (f) If an individual files a grievance under this section:
12-8 (1) that individual may not file a subsequent
12-9 grievance; and
12-10 (2) no other member of the citizens advisory
12-11 committee for the same plan may file a subsequent grievance.
12-12 SECTION 4. Section 83.006, Parks and Wildlife Code, is
12-13 repealed.
12-14 SECTION 5. (a) Except as provided by Subsection (b) of this
12-15 section, this Act applies only to a regional habitat conservation
12-16 plan for which an application for a federal permit was submitted on
12-17 or after January 1, 1999.
12-18 (b) Sections 83.018(a) and (b), Parks and Wildlife Code, as
12-19 added by this Act, apply to the acquisition of land by a regional
12-20 habitat conservation plan for which a federal permit was issued
12-21 before September 1, 1999, regardless of the date the application
12-22 was submitted.
12-23 SECTION 6. This Act takes effect September 1, 1999.
12-24 SECTION 7. 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.