By: Wentworth S.B. No. 1272
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 or
2-18 program to protect endangered species by habitat preserves or other
2-19 protection strategies developed in order to obtain a federal
2-20 permit:
2-21 (A) that does not require the regulation of
2-22 non-habitat preserve land; and
2-23 (B) for which the land to be used as habitat
2-24 preserves, at the time of application for the federal permit:
2-25 (i) is owned by a plan participant; or
2-26 (ii) is subject to a contract agreed to by
3-1 each owner of land in the habitat preserve or proposed habitat
3-2 preserve providing that all or part of the owner's land be used or
3-3 managed as a habitat preserve.
3-4 (7) "Habitat preserve" means land set aside or managed
3-5 for the protection of endangered species under a federal permit.
3-6 (8) "Harm" means significant habitat modification or
3-7 degradation that, by significantly impairing essential behavioral
3-8 patterns, including breeding, feeding, sheltering, or migrating, is
3-9 the proximate cause of:
3-10 (A) the death of a member of an endangered
3-11 species; or
3-12 (B) the physical injury of a member of an
3-13 endangered species.
3-14 (9) "Land development standards" means rules or
3-15 ordinances regulating the development of land, including impervious
3-16 cover limitations, building setbacks, zoning, floor-to-area ratios,
3-17 building coverage, water quality controls and regulations,
3-18 landscaping, building height, development setbacks, compatibility
3-19 standards, traffic analyses, driveway cuts, impact fees, and
3-20 transfer of development rights. The term does not include fire or
3-21 building codes or restrictions on the withdrawal of groundwater.
3-22 (10) "Mitigation fee" means a charge or in-kind
3-23 contribution that is based on the amount of harm and is paid or
3-24 provided to a plan participant in exchange for mitigation credit to
3-25 be used to comply with the federal act.
3-26 (11) "Plan participant" means a governmental entity
4-1 that develops, attempts to develop, adopts, approves, or
4-2 participates in a regional habitat conservation plan or habitat
4-3 conservation plan.
4-4 (12) "Regional habitat conservation plan" means a plan
4-5 or program to protect endangered species by habitat preserves or
4-6 other protection strategies developed in order to obtain a federal
4-7 permit that requires the acquisition or regulation of land or
4-8 interests in land not owned by a plan participant at the time of
4-9 application for a federal permit.
4-10 Sec. 83.012. PURPOSE. The purpose of this subchapter is to:
4-11 (1) establish the requirements for and authority of a
4-12 governmental entity to regulate wildlife through the development,
4-13 financing, and implementation of a regional habitat conservation
4-14 plan or a habitat conservation plan;
4-15 (2) encourage governmental entities to use the
4-16 authority under this subchapter to develop and implement habitat
4-17 conservation plans instead of regional habitat conservation plans;
4-18 (3) coordinate, to the greatest extent practicable,
4-19 habitat preserves with lands set aside or to be set aside under
4-20 local, state, or federal laws or regulations;
4-21 (4) prohibit plan participants from devaluing land
4-22 containing endangered species or endangered species habitat through
4-23 plan participant actions; and
4-24 (5) require plan participants of existing regional
4-25 habitat conservation plans to comply with the requirements of this
4-26 subchapter so that existing regional habitat conservation plans
5-1 become habitat conservation plans as quickly as possible.
5-2 Sec. 83.013. AUTHORITY OF DEPARTMENT OR POLITICAL
5-3 SUBDIVISION. (a) The department or a political subdivision may
5-4 participate in the study and preparation for and creation of a
5-5 habitat conservation plan.
5-6 (b) Subject to this subchapter, the department or a
5-7 political subdivision may participate in the study and preparation
5-8 for and creation of a regional habitat conservation plan.
5-9 (c) Subject to this subchapter, a political subdivision,
5-10 including a municipality acting within its corporate limits or its
5-11 extraterritorial jurisdiction, in order to facilitate the creation
5-12 of a habitat preserve and the setting aside of land to protect a
5-13 species protected under a conservation agreement, may:
5-14 (1) purchase land, easements, or leases; and
5-15 (2) enter into an agreement with a landowner to
5-16 establish alternative land development standards for a tract of
5-17 land.
5-18 (d) A plan participant may apply for a federal permit in
5-19 conjunction with a regional habitat conservation plan only if the
5-20 qualified voters of a plan participant have authorized the issuance
5-21 of bonds or other debt financing in an amount equal to the
5-22 estimated cost of acquiring all land for habitat preserves within
5-23 the time required by this subchapter or the plan participant has
5-24 demonstrated that adequate sources of funding exist to acquire all
5-25 land for habitat preserves within the time required by this
5-26 subchapter.
6-1 (e) A governmental entity may not implement a regional
6-2 habitat conservation plan or apply for a federal permit in
6-3 conjunction with a regional habitat conservation plan if:
6-4 (1) the federal act is repealed; or
6-5 (2) the endangered species that are subject to
6-6 conservation and protection under the federal permit cease to be
6-7 listed as endangered by the United States Department of the
6-8 Interior.
6-9 Sec. 83.014. LIMITATION OF POWERS. (a) A governmental
6-10 entity may not impose a regulation, rule, or ordinance related to
6-11 endangered species unless the regulation, rule, or ordinance:
6-12 (1) relates to the operation or management of a
6-13 habitat preserve owned by or on behalf of a plan participant; or
6-14 (2) relates to or imposes restrictions on groundwater
6-15 withdrawals.
6-16 (b) A governmental entity may not discriminate against a
6-17 permit application, permit approval, or the provision of utility
6-18 service for land that:
6-19 (1) is or has been designated as habitat preserve or
6-20 potential habitat preserve in a regional habitat conservation plan
6-21 or habitat conservation plan;
6-22 (2) is designated as critical habitat under the
6-23 federal act; or
6-24 (3) has endangered species or endangered species
6-25 habitat.
6-26 (c) A governmental entity may not deny or limit available
7-1 water or wastewater service to land in the service area of the
7-2 governmental entity that has been designated as habitat preserve or
7-3 potential habitat preserve in a regional habitat conservation plan
7-4 or in a habitat conservation plan. For purposes of this
7-5 subsection, a governmental entity may not remove land from its
7-6 water or wastewater utility service areas after the date
7-7 established under Section 83.018(b).
7-8 (d) A governmental entity may not, as a condition for the
7-9 issuance of a permit, approval, or service, require a person to:
7-10 (1) pay a mitigation fee to a plan participant;
7-11 (2) set aside, lease, or convey land as habitat
7-12 preserve; or
7-13 (3) pay a mitigation fee for land set aside or
7-14 restricted from development under local, state, or federal law or
7-15 regulation.
7-16 Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A regional
7-17 habitat conservation plan, including any mitigation fee, shall be
7-18 based on the amount of harm to each endangered species to be
7-19 protected under the regional habitat conservation plan.
7-20 (b) The size of proposed habitat preserves shall be based
7-21 solely on the amount of harm to the endangered species to be
7-22 protected in the regional habitat conservation plan.
7-23 (c) The plan participants, together with the commission and
7-24 the landowner members of the citizens advisory committee, shall
7-25 appoint a biological advisory team. At least one member shall be
7-26 appointed by the commission and one member by the landowner members
8-1 of the citizens advisory committee. The member appointed by the
8-2 commission serves as presiding officer of the team. The team shall
8-3 assist in:
8-4 (1) the calculation of harm to the endangered species;
8-5 and
8-6 (2) the sizing and configuring of the habitat
8-7 preserves.
8-8 (d) Meetings of the biological advisory team are subject to
8-9 the open meetings law, Chapter 551, Government Code, and all work
8-10 product of the biological advisory team is subject to the open
8-11 records law, Chapter 552, Government Code.
8-12 Sec. 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan
8-13 participants shall appoint a citizens advisory committee to assist
8-14 in preparing the regional habitat conservation plan and the
8-15 application for a federal permit.
8-16 (b) At least four members or 33 percent of the citizens
8-17 advisory committee, whichever is greater in number, must own
8-18 undeveloped land or land in agricultural use in the regional
8-19 habitat conservation plan area. A landowner member may not be an
8-20 employee or elected official of a plan participant or any other
8-21 local, state, or federal governmental entity.
8-22 (c) Not later than the 90th day after the initial
8-23 identification of the proposed preserve system for the regional
8-24 habitat conservation plan, the plan participants shall appoint one
8-25 additional landowner, who owns land within the proposed habitat
8-26 preserve system, to the citizens advisory committee. The
9-1 additional landowner member must comply with Subsection (b).
9-2 (d) The commission shall appoint one representative to the
9-3 citizens advisory committee. The commission's representative is a
9-4 voting member of the committee.
9-5 Sec. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION
9-6 PLAN. (a) Meetings of the citizens advisory committee and
9-7 meetings of the plan participants regarding planning, development,
9-8 and implementation of the regional habitat conservation plan are
9-9 subject to the open meetings law, Chapter 551, Government Code.
9-10 (b) All data, reports, and other information regarding the
9-11 regional habitat conservation plan, including field notes, lab
9-12 notes, and any other information relied on by the biological
9-13 advisory team, are subject to the open records law, Chapter 552,
9-14 Government Code.
9-15 (c) Not later than the 60th day after the initial
9-16 identification of the proposed habitat preserve system for the
9-17 federal permit, the plan participants shall notify in writing each
9-18 owner of land identified by the plan participants as habitat
9-19 preserve or potential habitat preserve. The plan participants
9-20 shall use the county tax rolls to identify the owners of land
9-21 identified as habitat preserve or potential habitat preserve. The
9-22 written notice must include at least the following information:
9-23 (1) the tax identification and parcel numbers;
9-24 (2) the owner's name and address;
9-25 (3) an explanation of the designation or possible
9-26 designation of the tract as habitat preserve or potential habitat
10-1 preserve under the regional habitat conservation plan;
10-2 (4) identification of the citizens advisory committee
10-3 members, including telephone numbers, addresses, and the group that
10-4 each committee member represents;
10-5 (5) identification of employees or agents of plan
10-6 participants who can provide information about the regional habitat
10-7 conservation plan;
10-8 (6) the date of the next citizens advisory committee
10-9 meeting or plan participant meeting regarding the regional habitat
10-10 conservation plan; and
10-11 (7) a description of the status of the regional
10-12 habitat conservation plan.
10-13 Sec. 83.018. PRESERVE ACQUISITION. (a) The designation of
10-14 a tract of land as habitat preserve or potential habitat preserve
10-15 or the presence of endangered species or endangered species habitat
10-16 may not be considered in determining the fair market value of the
10-17 property for acquisition as a habitat preserve.
10-18 (b) A change to plan participant rules and regulations,
10-19 including land development standards, that occurs after the
10-20 earliest date that the biological advisory team, citizens advisory
10-21 committee, or plan participant initially identifies a tract of land
10-22 as habitat preserve or potential habitat preserve may not be
10-23 considered in determining the fair market value of the land for
10-24 acquisition as a habitat preserve.
10-25 (c) The plan participants shall make offers based on fair
10-26 market value to the landowners for the acquisition of fee simple or
11-1 other interest in land designated in the regional habitat
11-2 conservation plan as habitat preserve not later than two years
11-3 after the issuance of the federal permit or three years after the
11-4 initial application for the federal permit, whichever is earlier.
11-5 Acquisition of all habitat preserves must be completed not later
11-6 than the fourth anniversary of the date on which the federal permit
11-7 was issued. A plan participant subject to this subsection who does
11-8 not meet an applicable deadline shall file an application to amend
11-9 the federal permit to remove the nonacquired habitat preserve land
11-10 from the regional habitat conservation plan as a habitat preserve
11-11 not later than the 60th day after the fourth anniversary of the
11-12 date on which the federal permit was issued.
11-13 Sec. 83.019. NOTICE AND HEARING REQUIREMENTS. (a) A plan
11-14 participant must comply with the notice and hearing requirements of
11-15 this section before adopting any regional habitat conservation
11-16 plan, plan amendment, ordinance, budget, fee schedule, rule,
11-17 regulation, or order to implement this subchapter.
11-18 (b) The plan participant, individually or through interlocal
11-19 contract, shall publish a notice, including a brief description of
11-20 the proposed action and the time and place of a public hearing on
11-21 the proposed action, not later than the 30th day before the public
11-22 hearing in the newspaper of largest general circulation in the
11-23 county in which the plan participant proposing the action is
11-24 located.
11-25 (c) A public hearing on the proposed action shall be held at
11-26 the time and place specified in the notice.
12-1 Sec. 83.020. GRIEVANCE WITH DEVELOPMENT OF REGIONAL HABITAT
12-2 CONSERVATION PLAN. (a) An individual appointed to a citizens
12-3 advisory committee under Section 83.016(b) may file a grievance
12-4 with the commission regarding the development of a regional habitat
12-5 conservation plan under this subchapter if the individual believes
12-6 that the plan is being developed in violation of this subchapter.
12-7 The individual filing the grievance must have been a member of the
12-8 citizens advisory committee for the plan named in the grievance.
12-9 (b) A grievance must be filed under this section not later
12-10 than the 60th day after the date the plan is approved by the plan
12-11 participants. The grievance must cite each provision of this
12-12 subchapter alleged to have been violated during the development of
12-13 the plan and must describe each act alleged to have violated this
12-14 subchapter.
12-15 (c) The commission shall review a grievance filed under this
12-16 section to determine whether the plan is being developed in
12-17 compliance with this subchapter. If after reviewing the grievance
12-18 the commission finds that the grievance has no merit, the
12-19 commission may dismiss the grievance. If the commission finds that
12-20 the grievance does have merit, the commission must hold a public
12-21 hearing in accordance with Chapter 551, Government Code. The
12-22 commission shall take testimony from each plan participant and
12-23 from the individual filing the grievance. On conclusion of
12-24 testimony, the commission shall vote on whether to approve or
12-25 dismiss the grievance or to schedule a public hearing not later
12-26 than the 30th day after the conclusion of the initial public
13-1 hearing and to vote after the conclusion of that hearing whether to
13-2 approve or dismiss the grievance.
13-3 (d) If the commission approves the grievance, the commission
13-4 shall instruct the plan participant or participants to amend the
13-5 plan so that it will comply with this subchapter. The plan
13-6 participant may not submit an application for a federal permit
13-7 until the commission is satisfied that its instructions to amend
13-8 the plan to comply with this subchapter have been carried out.
13-9 (e) A plan participant in a plan that is the subject of a
13-10 grievance filed with the commission may not submit an application
13-11 for a federal permit before the commission:
13-12 (1) has dismissed the grievance; or
13-13 (2) if the commission approves the grievance, has
13-14 determined that the commission's recommended amendments to the plan
13-15 have been made.
13-16 (f) If an individual files a grievance under this section,
13-17 that individual may not file a subsequent grievance.
13-18 SECTION 4. Section 83.006, Parks and Wildlife Code, is
13-19 repealed.
13-20 SECTION 5. (a) Except as provided by Subsection (b) of this
13-21 section, this Act applies only to a regional habitat conservation
13-22 plan for which an application for a federal permit was submitted on
13-23 or after January 1, 1999.
13-24 (b) Subsections (a) and (b), Section 83.018, Parks and
13-25 Wildlife Code, as added by this Act, apply to the acquisition of
13-26 land by a regional habitat conservation plan for which a federal
14-1 permit was issued before September 1, 1999, regardless of the date
14-2 the application was submitted.
14-3 SECTION 6. This Act takes effect September 1, 1999.