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.