By: Armbrister S.B. No. 1122
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
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 SECTION 1. Chapter 83, Parks and Wildlife Code, is amended
1-5 by adding the definition of "utility", expanding the applicability
1-6 to all utilities as herein defined, and limiting the authority of
1-7 utilities as their activities and processes related to the federal
1-8 Endangered Species Act.
1-9 SECTION 2. Chapter 83, parks and Wildlife Code, is amended
1-10 to read as follows:
1-11 (6) "Utility" means a retail provider of water,
1-12 electric, television, cable, telephone or telecommunications
1-13 services including but not limited (a) to investor-owner utility,
1-14 "utility", "water or sewer utility", "public utility" or "water
1-15 supply or sewer service corporation" as defined in Chapter 13.002
1-16 Texas Water Code, or (b) "districts" and "special water
1-17 authorities" as defined in Chapter 49, Texas Water Code, or
1-18 (c) water districts as defined in Chapters 51 and 54 Texas Water
1-19 Code, or (d) "electric utility" and "retail electric utility" as
1-20 defined in Chapter 37 of the Texas Utilities Code.
1-21 [(6)](7) "Habitat conservation plan" means a plan or program
1-22 to protect endangered species by habitat preserves or other
1-23 protection strategies developed in order to obtain a federal
2-1 permit:
2-2 (A) that does not require the regulation of non-habitat
2-3 preserve land; and
2-4 (B) for which the land to be used as habitat preserves, at
2-5 the time of application for the federal permit:
2-6 (i) is owned by a plan participant; or
2-7 (ii) is subject to a contract agreed to by each owner of
2-8 land in the habitat preserve or proposed habitat preserve providing
2-9 that all or part of the owner's land be used or managed as a
2-10 habitat preserve.
2-11 [(7)](8) "Habitat preserve" means land set aside or managed
2-12 for the protection of endangered species under a federal permit.
2-13 [(8)](9) "Harm" means significant habitat modification or
2-14 degradation that, by significantly impairing essential behavioral
2-15 patterns, including breeding, feeding, sheltering, or migrating, is
2-16 the proximate cause of:
2-17 (A) the death of a member of an endangered species; or
2-18 (B) the physical injury of a member of an endangered
2-19 species.
2-20 [(9)](10) "Land development standards" means rules or
2-21 ordinances regulating the development of land, including impervious
2-22 cover limitations, building setbacks, zoning, floor-to-area ratios,
2-23 building coverage, water quality controls and regulations,
2-24 landscaping, building height, development setbacks, compatibility
2-25 standards, traffic analyses, driveway cuts, impact fees, and
2-26 transfer of development rights. The term does not include fire or
3-1 building codes or restrictions on the withdrawal of groundwater.
3-2 [(10)](11) "Mitigation fee" means a charge or in-kind
3-3 contribution that is based on the amount of harm and is paid or
3-4 provided to a plan participant in exchange for mitigation credit to
3-5 be used to comply with the federal act.
3-6 [(11)](12) "Plan participant" means a governmental entity that
3-7 develops, attempts to develop, adopts, approves, or participates in
3-8 a regional habitat conservation plan or habitat conservation plan.
3-9 [(12)](13) "Regional habitat conservation plan" means a plan
3-10 or program to protect endangered species by habitat preserves or
3-11 other protection strategies developed in order to obtain a federal
3-12 permit that requires the acquisition or regulation of land or
3-13 interests in land not owned by a plan participant at the time of
3-14 application for a federal permit.
3-15 Sec. 83.012. PURPOSE. The purpose of this subchapter is to:
3-16 (1) establish the requirements for and authority of a
3-17 governmental entity to regulate wildlife through the development,
3-18 financing, and implementation of a regional habitat conservation
3-19 plan or a habitat conservation plan;
3-20 (2) encourage governmental entities to use the
3-21 authority under this subchapter to develop and implement habitat
3-22 conservation plans instead of regional habitat conservation plans;
3-23 (3) coordinate, to the greatest extent practicable,
3-24 habitat preserves with lands set aside or to be set aside under
3-25 local, state, or federal laws or regulations;
3-26 (4) prohibit plan participants from devaluing land
4-1 containing endangered species or endangered species habitat through
4-2 plan participant actions; [and]
4-3 (5) require plan participants of existing regional
4-4 habitat conservation plans to comply with the requirements of this
4-5 subchapter so that existing regional habitat conservation plans
4-6 become habitat conservation plans as quickly as possible[.]; and
4-7 (6) to insure basic utility services and obligations
4-8 are not conditioned upon a predetermination by the utility that the
4-9 utility customer is need of authorization for incidental take
4-10 pursuant to the federal Endangered Species Act.
4-11 Section 83.014 LIMITATION OF POWERS.
4-12 (e) A utility may not deny service to any landowner,
4-13 business, political subdivision, utility or other entity:
4-14 (1) as part of either a utility's individual habitat
4-15 conservation plan or any other type of habitat conservation plan
4-16 approved and implemented pursuant to the federal Endangered Species
4-17 Act, as amended; or
4-18 (2) as part of any agreements entered into with the
4-19 federal government or an agent thereof pursuant to Section 7 of the
4-20 federal Endangered Species Act; or
4-21 (3) otherwise condition the provision of utility
4-22 service to any landowner, business, political subdivision, utility
4-23 or other entity on the basis of that entity having first obtained
4-24 an incidental take permit under Section 10 of the federal
4-25 Endangered Species Act or having received authorization for take of
4-26 an endangered species under Section 7 of the federal Endangered
5-1 Species Act.
5-2 SECTION 4. This Act takes effect September 1, 2001.