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.