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.