By: Armbrister S.B. No. 1122
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of utilities to deny or limit service as
1-3 a condition of compliance with the federal Endangered Species Act
1-4 of 1973.
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 adding the definition of "utility," expanding the applicability
1-8 to all utilities as herein defined, and limiting the authority of
1-9 utilities as their activities and processes relate to the federal
1-10 Endangered Species Act of 1973 (16 U.S.C. Section 1531 et seq.).
1-11 SECTION 2. Section 83.011, Parks and Wildlife Code, is
1-12 amended by adding a new Subdivision (6) and renumbering existing
1-13 Subdivisions (6) through (12) to read as follows:
1-14 (6) "Utility" means a retail provider of water,
1-15 electric, television, cable, or telephone or telecommunications
1-16 services including but not limited to (i) "investor-owned utility,"
1-17 "utility," "water and sewer utility," "public utility," or "water
1-18 supply or sewer service corporation" as defined in Section 13.002,
1-19 Water Code, (ii) "district" and "special water authorities" as
1-20 defined in Chapter 49, Water Code, (iii) "water districts" as
1-21 defined in Chapters 51 and 54, Water Code, or (iv) "electric
1-22 utility" and "retail electric utility" as defined in Chapter 37,
1-23 Utilities Code.
1-24 (7) "Habitat conservation plan" means a plan or
1-25 program to protect endangered species by habitat preserves or other
2-1 protection strategies developed in order to obtain a federal
2-2 permit:
2-3 (A) that does not require the regulation of
2-4 non-habitat preserve land; and
2-5 (B) for which the land to be used as habitat
2-6 preserves, at the time of application for the federal permit:
2-7 (i) is owned by a plan participant; or
2-8 (ii) is subject to a contract agreed to by
2-9 each owner of land in the habitat preserve or proposed habitat
2-10 preserve providing that all or part of the owner's land be used or
2-11 managed as a habitat preserve.
2-12 (8) [(7)] "Habitat preserve" means land set aside or
2-13 managed for the protection of endangered species under a federal
2-14 permit.
2-15 (9) [(8)] "Harm" means significant habitat
2-16 modification or degradation that, by significantly impairing
2-17 essential behavioral patterns, including breeding, feeding,
2-18 sheltering, or migrating, is the proximate cause of:
2-19 (A) the death of a member of an endangered species; or
2-20 (B) the physical injury of a member of an endangered
2-21 species.
2-22 (10) [(9)] "Land development standards" means rules or
2-23 ordinances regulating the development of land, including impervious
2-24 cover limitations, building setbacks, zoning, floor-to-area ratios,
2-25 building coverage, water quality controls and regulations,
2-26 landscaping, building height, development setbacks, compatibility
3-1 standards, traffic analyses, driveway cuts, impact fees, and
3-2 transfer of development rights. The term does not include fire or
3-3 building codes or restrictions on the withdrawal of groundwater.
3-4 (11) [(10)] "Mitigation fee" means a charge or in-kind
3-5 contribution that is based on the amount of harm and is paid or
3-6 provided to a plan participant in exchange for mitigation credit to
3-7 be used to comply with the federal act.
3-8 (12) [(11)] "Plan participant" means a governmental
3-9 entity that develops, attempts to develop, adopts, approves, or
3-10 participates in a regional habitat conservation plan or habitat
3-11 conservation plan.
3-12 (13) [(12)] "Regional habitat conservation plan" means
3-13 a plan or program to protect endangered species by habitat
3-14 preserves or other protection strategies developed in order to
3-15 obtain a federal permit that requires the acquisition or regulation
3-16 of land or interests in land not owned by a plan participant at the
3-17 time of application for a federal permit.
3-18 SECTION 3. Section 83.012, Parks and Wildlife Code, is
3-19 amended to read as follows:
3-20 Sec. 83.012. PURPOSE. The purpose of this subchapter is to:
3-21 (1) establish the requirements for and authority of a
3-22 governmental entity to regulate wildlife through the development,
3-23 financing, and implementation of a regional habitat conservation
3-24 plan or a habitat conservation plan;
3-25 (2) encourage governmental entities to use the
3-26 authority under this subchapter to develop and implement habitat
4-1 conservation plans instead of regional habitat conservation plans;
4-2 (3) coordinate, to the greatest extent practicable,
4-3 habitat preserves with lands set aside or to be set aside under
4-4 local, state, or federal laws or regulations;
4-5 (4) prohibit plan participants from devaluing land
4-6 containing endangered species or endangered species habitat through
4-7 plan participant actions; [and]
4-8 (5) require plan participants of existing regional
4-9 habitat conservation plans to comply with the requirements of this
4-10 subchapter so that existing regional habitat conservation plans
4-11 become habitat conservation plans as quickly as possible; and
4-12 (6) to ensure basic utility services and obligations
4-13 are not conditioned upon a predetermination by the utility that the
4-14 utility customer needs authorization for incidental taking pursuant
4-15 to the federal act.
4-16 SECTION 4. Section 83.014, Parks and Wildlife Code, is
4-17 amended by adding Subsection (e) to read as follows:
4-18 (e) A utility may not deny service to any landowner,
4-19 business, political subdivision, utility, or other entity:
4-20 (1) as part of either a utility's individual habitat
4-21 conservation plan or any other type of habitat conservation plan
4-22 approved and implemented pursuant to the federal act;
4-23 (2) as part of any agreements entered into with the
4-24 federal government or an agent thereof pursuant to Section 7 of the
4-25 federal act; or
4-26 (3) otherwise condition the provision of utility
5-1 service to any landowner, business, political subdivision, utility,
5-2 or other entity on the basis of that entity having first obtained
5-3 an incidental take permit under Section 10 of the federal act or
5-4 having received authorization for the taking of an endangered
5-5 species under Section 7 of the federal act.
5-6 SECTION 5. This Act takes effect September 1, 2001.