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.