By Turner of Coleman H.B. No. 430 76R684 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 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 and approved by the commission. 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: 5-7 (1) the qualified voters of a plan participant have 5-8 authorized the issuance of bonds or other debt financing in an 5-9 amount equal to the estimated cost of acquiring all land for 5-10 habitat preserves within the time required by this subchapter or 5-11 the plan participant has demonstrated to the commission adequate 5-12 sources of funding to acquire all land for habitat preserves within 5-13 the time required by this subchapter; and 5-14 (2) the requirements of Section 83.015(e) have been 5-15 met. 5-16 (e) A governmental entity may not implement a regional 5-17 habitat conservation plan or apply for a federal permit in 5-18 conjunction with a regional habitat conservation plan if: 5-19 (1) the federal act is repealed; or 5-20 (2) the endangered species that are subject to 5-21 conservation and protection under the federal permit cease to be 5-22 listed as endangered by the United States Department of the 5-23 Interior. 5-24 (f) A political subdivision may implement a regional habitat 5-25 conservation plan that received a federal permit on or after 5-26 January 1, 1999, but before September 1, 1999, only if the plan 5-27 participants comply with Sections 83.017(d), 83.018, and 83.019 6-1 within the time prescribed. If the plan participants of such a 6-2 regional habitat conservation plan do not meet a deadline 6-3 prescribed by Section 83.017(d), 83.018, or 83.019, the authority 6-4 of the plan participants to implement the regional habitat 6-5 conservation plan that received a federal permit on or after 6-6 January 1, 1999, but before September 1, 1999, or to implement any 6-7 other regional habitat conservation plan automatically terminates. 6-8 The plan participants may convert the regional habitat conservation 6-9 plan into a habitat conservation plan. 6-10 (g) Any owner of land within the boundaries of a regional 6-11 habitat conservation plan that received a federal permit on or 6-12 after January 1, 1999, but before September 1, 1999, may bring an 6-13 action against a plan participant of that regional habitat 6-14 conservation plan to enforce compliance with the requirements of 6-15 this subchapter or for actual damages proximately caused by the 6-16 plan participant's failure to comply with this subchapter. A 6-17 landowner who obtains a judgment to enforce this subchapter shall 6-18 recover reasonable attorney's fees from the plan participant. 6-19 (h) An amendment to a regional habitat conservation plan, 6-20 including a plan that received a federal permit on or after January 6-21 1, 1999, but before September 1, 1999, shall be reviewed and must 6-22 be approved by the department for compliance with the purposes and 6-23 requirements of this subchapter before the amendment is submitted 6-24 to the United States Fish and Wildlife Service. 6-25 Sec. 83.014. LIMITATION OF POWERS. (a) A governmental 6-26 entity may not impose a regulation, rule, or ordinance related to 6-27 endangered species unless the regulation, rule, or ordinance 7-1 relates to the operation or management of a habitat preserve owned 7-2 by a plan participant. 7-3 (b) A governmental entity may not discriminate against a 7-4 permit application, permit approval, or the provision of utility 7-5 service for property that: 7-6 (1) is or has been designated as habitat preserve or 7-7 potential habitat preserve in a regional habitat conservation plan 7-8 or habitat conservation plan; 7-9 (2) is designated as critical habitat under the 7-10 federal act; or 7-11 (3) has endangered species or endangered species 7-12 habitat. 7-13 (c) A governmental entity may not deny or limit available 7-14 water or wastewater service to property in the service area of the 7-15 governmental entity that has been designated as habitat preserve or 7-16 potential habitat preserve in a regional habitat conservation plan 7-17 or in a habitat conservation plan. For purposes of this 7-18 subsection, a governmental entity may not remove property from its 7-19 water or wastewater utility service areas after the date 7-20 established under Section 83.018(b). For a regional habitat 7-21 conservation plan that received a federal permit on or after 7-22 January 1, 1999, but before September 1, 1999, the plan participant 7-23 may not remove the property if the property was in the plan 7-24 participant's service area on January 1, 1998. Any property 7-25 subject to this subsection that has been removed from a plan 7-26 participant's service area shall be reinstated in the service area 7-27 within 120 days after the date on which this subchapter takes 8-1 effect. 8-2 Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A regional 8-3 habitat conservation plan, including any mitigation fee, shall be 8-4 based on the amount of harm to each endangered species to be 8-5 protected under the regional habitat conservation plan. 8-6 (b) The size of proposed habitat preserves shall be based 8-7 solely on the amount of harm to the endangered species to be 8-8 protected in the regional habitat conservation plan. 8-9 (c) The plan participants, together with the commission and 8-10 the landowner members of the citizens advisory committee, shall 8-11 appoint a biological advisory team. At least one member shall be 8-12 appointed by the commission and one member by the landowner members 8-13 of the citizens advisory committee. The member appointed by the 8-14 commission serves as presiding officer of the team. The team shall 8-15 assist in: 8-16 (1) the calculation of harm to the endangered species; 8-17 and 8-18 (2) the sizing and configuring of the habitat 8-19 preserves. 8-20 (d) Meetings of the biological advisory team are subject to 8-21 the open meetings law, Chapter 551, Government Code, and all work 8-22 product of the biological advisory team is subject to the open 8-23 records law, Chapter 552, Government Code. 8-24 (e) A regional habitat conservation plan shall be reviewed 8-25 for compliance with this subchapter and must be approved by the 8-26 commission before an application for a federal permit is submitted. 8-27 The commission must concur with the calculation of harm used in the 9-1 regional habitat conservation plan and the size and configuration 9-2 of habitat preserves. 9-3 Sec. 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan 9-4 participants shall appoint a citizens advisory committee to assist 9-5 in preparing the regional habitat conservation plan and the 9-6 application for a federal permit. 9-7 (b) At least four members or 33 percent of the citizens 9-8 advisory committee, whichever is greater in number, must own 9-9 undeveloped property or property in agricultural use in the 9-10 regional habitat conservation plan area. A landowner member may 9-11 not be an employee or elected official of a plan participant or any 9-12 other local, state, or federal governmental entity. 9-13 (c) One-half of the landowner members appointed under 9-14 Subsection (b) or, if the number of landowner members appointed is 9-15 odd, the smallest number of landowner members that constitutes a 9-16 majority may not be affiliated with any commonly recognized 9-17 environmental group. 9-18 (d) The commission shall appoint one representative to the 9-19 citizens advisory committee. The commission's representative is a 9-20 voting member of the committee. 9-21 Sec. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION 9-22 PLAN. (a) Meetings of the citizens advisory committee and 9-23 meetings of the plan participants regarding planning, development, 9-24 and implementation of the regional habitat conservation plan are 9-25 subject to the open meetings law, Chapter 551, Government Code. 9-26 (b) All data, reports, and other information regarding the 9-27 regional habitat conservation plan, including field notes, lab 10-1 notes, and any other information relied on by the biological 10-2 advisory team, are subject to the open records law, Chapter 552, 10-3 Government Code. 10-4 (c) The plan participants shall notify in writing each owner 10-5 of land identified by the plan participants as habitat preserve or 10-6 potential habitat preserve. The plan participants shall use the 10-7 county tax rolls to identify the owners of land identified as 10-8 habitat preserve or potential habitat preserve. The written notice 10-9 must include at least the following information: 10-10 (1) the tax identification and parcel numbers; 10-11 (2) the owner's name and address; 10-12 (3) an explanation of the designation or possible 10-13 designation of the tract as habitat preserve or potential habitat 10-14 preserve under the regional habitat conservation plan; 10-15 (4) identification of the citizens advisory committee 10-16 members, including telephone numbers, addresses, and the group that 10-17 each committee member represents; 10-18 (5) identification of employees or agents of plan 10-19 participants who can provide information about the regional habitat 10-20 conservation plan; 10-21 (6) the date of the next citizens advisory committee 10-22 meeting or plan participant meeting regarding the regional habitat 10-23 conservation plan; and 10-24 (7) a description of the status of the regional 10-25 habitat conservation plan. 10-26 (d) For a regional habitat conservation plan that received a 10-27 federal permit on or after January 1, 1999, but before September 1, 11-1 1999, notice required by Subsection (c) shall be mailed not later 11-2 than October 1, 1999, to each landowner whose property has been 11-3 designated under that plan as habitat preserve or potential habitat 11-4 preserve. 11-5 Sec. 83.018. PRESERVE ACQUISITION. (a) The designation of 11-6 a tract of land as habitat preserve or potential habitat preserve 11-7 or the presence of endangered species or endangered species habitat 11-8 may not be considered in determining the fair market value of the 11-9 property for acquisition as a habitat preserve. 11-10 (b) A change to plan participant rules and regulations, 11-11 including land development standards, that occurs after the 11-12 earliest date that the biological advisory team, citizens advisory 11-13 committee, or plan participant initially identifies a tract of land 11-14 as habitat preserve or potential habitat preserve may not be 11-15 considered in determining the fair market value of the property for 11-16 acquisition as a habitat preserve. 11-17 (c) Except as provided by Subsection (d), the plan 11-18 participants shall make offers based on fair market value to the 11-19 landowners for the acquisition of fee simple or other property 11-20 interest in land designated in the regional habitat conservation 11-21 plan as habitat preserve not later than two years after the 11-22 issuance of the federal permit or three years after the initial 11-23 application for the federal permit, whichever is earlier. 11-24 Acquisition of all habitat preserves must be completed not later 11-25 than the fourth anniversary of the date on which the federal permit 11-26 was issued. A plan participant subject to this subsection who does 11-27 not meet an applicable deadline shall file an application to amend 12-1 the federal permit to remove the nonacquired habitat preserve 12-2 property from the regional habitat conservation plan as a habitat 12-3 preserve not later than the 60th day after the fourth anniversary 12-4 of the date on which the federal permit was issued. 12-5 (d) For a regional habitat conservation plan that received a 12-6 federal permit on or after January 1, 1999, but before September 1, 12-7 1999, the plan participants shall make offers based on fair market 12-8 value to the landowners for acquisition of fee simple or other 12-9 property interest of land designated in the federal permit as 12-10 habitat preserve or potential habitat preserve not later than 12-11 January 1, 2001. Acquisition of habitat preserves must be 12-12 completed by September 1, 2001. A plan participant subject to this 12-13 subsection who does not meet the deadlines specified in this 12-14 subsection shall amend the federal permit to remove the nonacquired 12-15 habitat preserve property from the regional habitat conservation 12-16 plan and the federal permit as a habitat preserve not later than 12-17 September 1, 2001, for property not receiving a fair market value 12-18 offer by January 1, 2001, or not acquired by September 1, 2001. 12-19 Except as otherwise provided by this subsection, property removed 12-20 as a habitat preserve or potential habitat preserve may not be 12-21 removed from the regional habitat conservation plan or habitat 12-22 conservation plan areas eligible to pay mitigation fees or 12-23 otherwise be denied the right to pay a mitigation fee and receive 12-24 corresponding credit. All or part of property that has been 12-25 removed as a habitat preserve or potential habitat preserve shall 12-26 be excluded from the regional habitat conservation plan if the 12-27 owners make a written request to be excluded from the regional 13-1 habitat conservation plan. The plan participants shall provide 13-2 written notice to the owner of property removed as a habitat 13-3 preserve or potential habitat preserve not later than the 13-4 applicable deadline established by this subsection. The notice 13-5 must inform the landowner of the right to withdraw all or part of 13-6 the land from the regional habitat conservation plan within six 13-7 months after the date of receipt of the notice. On removal of 13-8 property from a regional habitat conservation plan as a habitat 13-9 preserve or potential habitat preserve, the plan participants shall 13-10 cease describing, in any fashion, that property as habitat preserve 13-11 or potential habitat preserve. 13-12 Sec. 83.019. NOTICE AND HEARING REQUIREMENTS. (a) A plan 13-13 participant must comply with the notice and hearing requirements of 13-14 this section before adopting any regional habitat conservation 13-15 plan, plan amendment, ordinance, budget, fee schedule, rule, 13-16 regulation, or order to implement this subchapter. 13-17 (b) The plan participant, individually or through interlocal 13-18 contract, shall publish a notice, including a brief description of 13-19 the proposed action and the time and place of a public hearing on 13-20 the proposed action, not later than the 30th day before the public 13-21 hearing in the newspaper of largest general circulation in the 13-22 county in which the plan participant proposing the action is 13-23 located. 13-24 (c) A public hearing on the proposed action shall be held at 13-25 the time and place specified in the notice. 13-26 SECTION 4. Section 83.006, Parks and Wildlife Code, is 13-27 repealed. 14-1 SECTION 5. This Act takes effect September 1, 1999. 14-2 SECTION 6. The importance of this legislation and the 14-3 crowded condition of the calendars in both houses create an 14-4 emergency and an imperative public necessity that the 14-5 constitutional rule requiring bills to be read on three several 14-6 days in each house be suspended, and this rule is hereby suspended.