1-1 By: Wentworth S.B. No. 1272
1-2 (In the Senate - Filed March 11, 1999; March 11, 1999, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 14, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0; April 14, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1272 By: Armbrister
A BILL TO BE ENTITLED
1-8 AN ACT
1-9 relating to the authority of a political subdivision to prepare and
1-10 implement a regional habitat conservation plan or habitat
1-11 conservation plan or to enter into a conservation agreement.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Chapter 83, Parks and Wildlife Code, is amended
1-14 by designating Sections 83.001 through 83.004 as Subchapter A and
1-15 adding a heading to Subchapter A to read as follows:
1-16 SUBCHAPTER A. FEDERAL-STATE AGREEMENTS
1-17 SECTION 2. Subchapter A, Chapter 83, Parks and Wildlife
1-18 Code, as designated by this Act, is amended by adding Section
1-19 83.005 to read as follows:
1-20 Sec. 83.005. CONSERVATION AGREEMENTS FOR PROTECTION OF
1-21 SPECIES. (a) Any conservation agreement between a political
1-22 subdivision of the state and the United States Department of the
1-23 Interior must be developed in consultation with the Parks and
1-24 Wildlife Department.
1-25 (b) In this section, "conservation agreement" includes an
1-26 agreement between the state or a political subdivision of the state
1-27 and the United States Department of the Interior under the federal
1-28 act that does not relate to a federal permit as defined by Section
1-29 83.011.
1-30 SECTION 3. Chapter 83, Parks and Wildlife Code, is amended
1-31 by adding Subchapter B to read as follows:
1-32 SUBCHAPTER B. HABITAT PROTECTION BY POLITICAL SUBDIVISIONS
1-33 Sec. 83.011. DEFINITIONS. In this chapter:
1-34 (1) "Biological advisory team" means three or more
1-35 professional biologists retained to provide biological guidance to
1-36 plan participants.
1-37 (2) "Endangered species" means a species listed by the
1-38 United States Department of the Interior as endangered or
1-39 threatened under the federal act.
1-40 (3) "Federal act" means the federal Endangered Species
1-41 Act of 1973 (16 U.S.C. Section 1531 et seq.), as amended.
1-42 (4) "Federal permit" means a permit issued under
1-43 Section 7 or 10(a) of the federal act.
1-44 (5) "Governmental entity" means a political
1-45 subdivision of the state, including:
1-46 (A) a municipality; and
1-47 (B) a county.
1-48 (6) "Habitat conservation plan" means a plan or
1-49 program to protect endangered species by habitat preserves or other
1-50 protection strategies developed in order to obtain a federal
1-51 permit:
1-52 (A) that does not require the regulation of
1-53 non-habitat preserve land; and
1-54 (B) for which the land to be used as habitat
1-55 preserves, at the time of application for the federal permit:
1-56 (i) is owned by a plan participant; or
1-57 (ii) is subject to a contract agreed to by
1-58 each owner of land in the habitat preserve or proposed habitat
1-59 preserve providing that all or part of the owner's land be used or
1-60 managed as a habitat preserve.
1-61 (7) "Habitat preserve" means land set aside or managed
1-62 for the protection of endangered species under a federal permit.
1-63 (8) "Harm" means significant habitat modification or
1-64 degradation that, by significantly impairing essential behavioral
2-1 patterns, including breeding, feeding, sheltering, or migrating, is
2-2 the proximate cause of:
2-3 (A) the death of a member of an endangered
2-4 species; or
2-5 (B) the physical injury of a member of an
2-6 endangered species.
2-7 (9) "Land development standards" means rules or
2-8 ordinances regulating the development of land, including impervious
2-9 cover limitations, building setbacks, zoning, floor-to-area ratios,
2-10 building coverage, water quality controls and regulations,
2-11 landscaping, building height, development setbacks, compatibility
2-12 standards, traffic analyses, driveway cuts, impact fees, and
2-13 transfer of development rights. The term does not include fire or
2-14 building codes or restrictions on the withdrawal of groundwater.
2-15 (10) "Mitigation fee" means a charge or in-kind
2-16 contribution that is based on the amount of harm and is paid or
2-17 provided to a plan participant in exchange for mitigation credit to
2-18 be used to comply with the federal act.
2-19 (11) "Plan participant" means a governmental entity
2-20 that develops, attempts to develop, adopts, approves, or
2-21 participates in a regional habitat conservation plan or habitat
2-22 conservation plan.
2-23 (12) "Regional habitat conservation plan" means a plan
2-24 or program to protect endangered species by habitat preserves or
2-25 other protection strategies developed in order to obtain a federal
2-26 permit that requires the acquisition or regulation of land or
2-27 interests in land not owned by a plan participant at the time of
2-28 application for a federal permit.
2-29 Sec. 83.012. PURPOSE. The purpose of this subchapter is to:
2-30 (1) establish the requirements for and authority of a
2-31 governmental entity to regulate wildlife through the development,
2-32 financing, and implementation of a regional habitat conservation
2-33 plan or a habitat conservation plan;
2-34 (2) encourage governmental entities to use the
2-35 authority under this subchapter to develop and implement habitat
2-36 conservation plans instead of regional habitat conservation plans;
2-37 (3) coordinate, to the greatest extent practicable,
2-38 habitat preserves with lands set aside or to be set aside under
2-39 local, state, or federal laws or regulations;
2-40 (4) prohibit plan participants from devaluing land
2-41 containing endangered species or endangered species habitat through
2-42 plan participant actions; and
2-43 (5) require plan participants of existing regional
2-44 habitat conservation plans to comply with the requirements of this
2-45 subchapter so that existing regional habitat conservation plans
2-46 become habitat conservation plans as quickly as possible.
2-47 Sec. 83.013. AUTHORITY OF DEPARTMENT OR POLITICAL
2-48 SUBDIVISION. (a) The department or a political subdivision may
2-49 participate in the study and preparation for and creation of a
2-50 habitat conservation plan.
2-51 (b) Subject to this subchapter, the department or a
2-52 political subdivision may participate in the study and preparation
2-53 for and creation of a regional habitat conservation plan.
2-54 (c) Subject to this subchapter, a political subdivision,
2-55 including a municipality acting within its corporate limits or its
2-56 extraterritorial jurisdiction, in order to facilitate the creation
2-57 of a habitat preserve and the setting aside of land to protect a
2-58 species protected under a conservation agreement, may:
2-59 (1) purchase land, easements, or leases; and
2-60 (2) enter into an agreement with a landowner to
2-61 establish alternative land development standards for a tract of
2-62 land.
2-63 (d) A plan participant may apply for a federal permit in
2-64 conjunction with a regional habitat conservation plan only if the
2-65 qualified voters of a plan participant have authorized the issuance
2-66 of bonds or other debt financing in an amount equal to the
2-67 estimated cost of acquiring all land for habitat preserves within
2-68 the time required by this subchapter or the plan participant has
2-69 demonstrated that adequate sources of funding exist to acquire all
3-1 land for habitat preserves within the time required by this
3-2 subchapter.
3-3 (e) A governmental entity may not implement a regional
3-4 habitat conservation plan or apply for a federal permit in
3-5 conjunction with a regional habitat conservation plan if:
3-6 (1) the federal act is repealed; or
3-7 (2) the endangered species that are subject to
3-8 conservation and protection under the federal permit cease to be
3-9 listed as endangered by the United States Department of the
3-10 Interior.
3-11 Sec. 83.014. LIMITATION OF POWERS. (a) A governmental
3-12 entity may not impose a regulation, rule, or ordinance related to
3-13 endangered species unless the regulation, rule, or ordinance
3-14 relates to the operation or management of a habitat preserve owned
3-15 by or on behalf of a plan participant.
3-16 (b) A governmental entity may not discriminate against a
3-17 permit application, permit approval, or the provision of utility
3-18 service for land that:
3-19 (1) is or has been designated as habitat preserve or
3-20 potential habitat preserve in a regional habitat conservation plan
3-21 or habitat conservation plan;
3-22 (2) is designated as critical habitat under the
3-23 federal act; or
3-24 (3) has endangered species or endangered species
3-25 habitat.
3-26 (c) A governmental entity may not deny or limit available
3-27 water or wastewater service to land in the service area of the
3-28 governmental entity that has been designated as habitat preserve or
3-29 potential habitat preserve in a regional habitat conservation plan
3-30 or in a habitat conservation plan. For purposes of this
3-31 subsection, a governmental entity may not remove land from its
3-32 water or wastewater utility service areas after the date
3-33 established under Section 83.018(b).
3-34 (d) A governmental entity may not, as a condition for the
3-35 issuance of a permit, approval, or service, require a person to:
3-36 (1) pay a mitigation fee to a plan participant;
3-37 (2) set aside, lease, or convey land as habitat
3-38 preserve; or
3-39 (3) pay a mitigation fee for land set aside or
3-40 restricted from development under local, state, or federal law or
3-41 regulation.
3-42 Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A regional
3-43 habitat conservation plan, including any mitigation fee, shall be
3-44 based on the amount of harm to each endangered species to be
3-45 protected under the regional habitat conservation plan.
3-46 (b) The size of proposed habitat preserves shall be based
3-47 solely on the amount of harm to the endangered species to be
3-48 protected in the regional habitat conservation plan.
3-49 (c) The plan participants, together with the commission and
3-50 the landowner members of the citizens advisory committee, shall
3-51 appoint a biological advisory team. At least one member shall be
3-52 appointed by the commission and one member by the landowner members
3-53 of the citizens advisory committee. The member appointed by the
3-54 commission serves as presiding officer of the team. The team shall
3-55 assist in:
3-56 (1) the calculation of harm to the endangered species;
3-57 and
3-58 (2) the sizing and configuring of the habitat
3-59 preserves.
3-60 (d) Meetings of the biological advisory team are subject to
3-61 the open meetings law, Chapter 551, Government Code, and all work
3-62 product of the biological advisory team is subject to the open
3-63 records law, Chapter 552, Government Code.
3-64 Sec. 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan
3-65 participants shall appoint a citizens advisory committee to assist
3-66 in preparing the regional habitat conservation plan and the
3-67 application for a federal permit.
3-68 (b) At least four members or 33 percent of the citizens
3-69 advisory committee, whichever is greater in number, must own
4-1 undeveloped land or land in agricultural use in the regional
4-2 habitat conservation plan area. A landowner member may not be an
4-3 employee or elected official of a plan participant or any other
4-4 local, state, or federal governmental entity.
4-5 (c) Not later than the 90th day after the initial
4-6 identification of the proposed preserve system for the regional
4-7 habitat conservation plan, the plan participants shall appoint one
4-8 additional landowner, who owns land within the proposed habitat
4-9 preserve system, to the citizens advisory committee. The
4-10 additional landowner member must comply with Subsection (b).
4-11 (d) The commission shall appoint one representative to the
4-12 citizens advisory committee. The commission's representative is a
4-13 voting member of the committee.
4-14 Sec. 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION
4-15 PLAN. (a) Meetings of the citizens advisory committee and
4-16 meetings of the plan participants regarding planning, development,
4-17 and implementation of the regional habitat conservation plan are
4-18 subject to the open meetings law, Chapter 551, Government Code.
4-19 (b) All data, reports, and other information regarding the
4-20 regional habitat conservation plan, including field notes, lab
4-21 notes, and any other information relied on by the biological
4-22 advisory team, are subject to the open records law, Chapter 552,
4-23 Government Code.
4-24 (c) Not later than the 60th day after the initial
4-25 identification of the proposed habitat preserve system for the
4-26 federal permit, the plan participants shall notify in writing each
4-27 owner of land identified by the plan participants as habitat
4-28 preserve or potential habitat preserve. The plan participants
4-29 shall use the county tax rolls to identify the owners of land
4-30 identified as habitat preserve or potential habitat preserve. The
4-31 written notice must include at least the following information:
4-32 (1) the tax identification and parcel numbers;
4-33 (2) the owner's name and address;
4-34 (3) an explanation of the designation or possible
4-35 designation of the tract as habitat preserve or potential habitat
4-36 preserve under the regional habitat conservation plan;
4-37 (4) identification of the citizens advisory committee
4-38 members, including telephone numbers, addresses, and the group that
4-39 each committee member represents;
4-40 (5) identification of employees or agents of plan
4-41 participants who can provide information about the regional habitat
4-42 conservation plan;
4-43 (6) the date of the next citizens advisory committee
4-44 meeting or plan participant meeting regarding the regional habitat
4-45 conservation plan; and
4-46 (7) a description of the status of the regional
4-47 habitat conservation plan.
4-48 Sec. 83.018. PRESERVE ACQUISITION. (a) The designation of
4-49 a tract of land as habitat preserve or potential habitat preserve
4-50 or the presence of endangered species or endangered species habitat
4-51 may not be considered in determining the fair market value of the
4-52 property for acquisition as a habitat preserve.
4-53 (b) A change to plan participant rules and regulations,
4-54 including land development standards, that occurs after the
4-55 earliest date that the biological advisory team, citizens advisory
4-56 committee, or plan participant initially identifies a tract of land
4-57 as habitat preserve or potential habitat preserve may not be
4-58 considered in determining the fair market value of the land for
4-59 acquisition as a habitat preserve.
4-60 (c) The plan participants shall make offers based on fair
4-61 market value to the landowners for the acquisition of fee simple or
4-62 other interest in land designated in the regional habitat
4-63 conservation plan as habitat preserve not later than two years
4-64 after the issuance of the federal permit or three years after the
4-65 initial application for the federal permit, whichever is earlier.
4-66 Acquisition of all habitat preserves must be completed not later
4-67 than the fourth anniversary of the date on which the federal permit
4-68 was issued. A plan participant subject to this subsection who does
4-69 not meet an applicable deadline shall file an application to amend
5-1 the federal permit to remove the nonacquired habitat preserve land
5-2 from the regional habitat conservation plan as a habitat preserve
5-3 not later than the 60th day after the fourth anniversary of the
5-4 date on which the federal permit was issued.
5-5 Sec. 83.019. NOTICE AND HEARING REQUIREMENTS. (a) A plan
5-6 participant must comply with the notice and hearing requirements of
5-7 this section before adopting any regional habitat conservation
5-8 plan, plan amendment, ordinance, budget, fee schedule, rule,
5-9 regulation, or order to implement this subchapter.
5-10 (b) The plan participant, individually or through interlocal
5-11 contract, shall publish a notice, including a brief description of
5-12 the proposed action and the time and place of a public hearing on
5-13 the proposed action, not later than the 30th day before the public
5-14 hearing in the newspaper of largest general circulation in the
5-15 county in which the plan participant proposing the action is
5-16 located.
5-17 (c) A public hearing on the proposed action shall be held at
5-18 the time and place specified in the notice.
5-19 Sec. 83.020. GRIEVANCE WITH DEVELOPMENT OF REGIONAL HABITAT
5-20 CONSERVATION PLAN. (a) An individual appointed to a citizens
5-21 advisory committee under Section 83.016(b) may file a grievance
5-22 with the commission regarding the development of a regional habitat
5-23 conservation plan under this subchapter if the individual believes
5-24 that the plan is being developed in violation of this subchapter.
5-25 The individual filing the grievance must have been a member of the
5-26 citizens advisory committee for the plan named in the grievance.
5-27 (b) A grievance must be filed under this section not later
5-28 than the 60th day after the date the plan is approved by the plan
5-29 participants. The grievance must cite each provision of this
5-30 subchapter alleged to have been violated during the development of
5-31 the plan and must describe each act alleged to have violated this
5-32 subchapter.
5-33 (c) The commission shall review a grievance filed under this
5-34 section to determine whether the plan is being developed in
5-35 compliance with this subchapter. If after reviewing the grievance
5-36 the commission finds that the grievance has no merit, the
5-37 commission may dismiss the grievance. If the commission finds that
5-38 the grievance does have merit, the commission must hold a public
5-39 hearing in accordance with Chapter 551, Government Code. The
5-40 commission shall take testimony from each plan participant and
5-41 from the individual filing the grievance. On conclusion of
5-42 testimony, the commission shall vote on whether to approve or
5-43 dismiss the grievance or to schedule a public hearing not later
5-44 than the 30th day after the conclusion of the initial public
5-45 hearing and to vote after the conclusion of that hearing whether to
5-46 approve or dismiss the grievance.
5-47 (d) If the commission approves the grievance, the commission
5-48 shall instruct the plan participant or participants to amend the
5-49 plan so that it will comply with this subchapter. The plan
5-50 participant may not submit an application for a federal permit
5-51 until the commission is satisfied that its instructions to amend
5-52 the plan to comply with this subchapter have been carried out.
5-53 (e) A plan participant in a plan that is the subject of a
5-54 grievance filed with the commission may not submit an application
5-55 for a federal permit before the commission:
5-56 (1) has dismissed the grievance; or
5-57 (2) if the commission approves the grievance, has
5-58 determined that the commission's recommended amendments to the plan
5-59 have been made.
5-60 (f) If an individual files a grievance under this section,
5-61 that individual may not file a subsequent grievance.
5-62 SECTION 4. Section 83.006, Parks and Wildlife Code, is
5-63 repealed.
5-64 SECTION 5. (a) Except as provided by Subsection (b) of this
5-65 section, this Act applies only to a regional habitat conservation
5-66 plan for which an application for a federal permit was submitted on
5-67 or after January 1, 1999.
5-68 (b) Subsections (a) and (b), Section 83.018, Parks and
5-69 Wildlife Code, as added by this Act, apply to the acquisition of
6-1 land by a regional habitat conservation plan for which a federal
6-2 permit was issued before September 1, 1999, regardless of the date
6-3 the application was submitted.
6-4 SECTION 6. This Act takes effect September 1, 1999.
6-5 * * * * *