1-1     By:  Armbrister                                       S.B. No. 1122
 1-2           (In the Senate - Filed March 6, 2001; March 7, 2001, read
 1-3     first time and referred to Committee on Business and Commerce;
 1-4     May 3, 2001, reported favorably by the following vote:  Yeas 4,
 1-5     Nays 0; May 3, 2001, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to the authority of utilities to deny or limit service as
 1-9     a condition of compliance with the federal Endangered Species Act
1-10     of 1973.
1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12           SECTION 1.  Chapter 83, Parks and Wildlife Code, is amended
1-13     by adding the definition of "utility," expanding the applicability
1-14     to all utilities as herein defined, and limiting the authority of
1-15     utilities as their activities and processes relate to the federal
1-16     Endangered Species Act of 1973 (16 U.S.C. Section 1531 et seq.).
1-17           SECTION 2.  Section 83.011, Parks and Wildlife Code, is
1-18     amended by adding a new Subdivision (6) and renumbering existing
1-19     Subdivisions (6) through (12) to read as follows:
1-20                 (6)  "Utility" means a retail provider of water,
1-21     electric, television, cable, or telephone or telecommunications
1-22     services including but not limited to (i)  "investor-owned
1-23     utility," "utility," "water and sewer utility," "public utility,"
1-24     or "water supply or sewer service corporation" as defined in
1-25     Section 13.002, Water Code, (ii)  "district" and "special water
1-26     authorities" as defined in Chapter 49, Water Code, (iii)  "water
1-27     districts" as defined in Chapters 51 and 54, Water Code, or
1-28     (iv)  "electric utility" and "retail electric utility" as defined
1-29     in Chapter 37, Utilities Code.
1-30                 (7)  "Habitat conservation plan" means a plan or
1-31     program to protect endangered species by habitat preserves or other
1-32     protection strategies developed in order to obtain a federal
1-33     permit:
1-34                       (A)  that does not require the regulation of
1-35     non-habitat preserve land; and
1-36                       (B)  for which the land to be used as habitat
1-37     preserves, at the time of application for the federal permit:
1-38                             (i)  is owned by a plan participant; or
1-39                             (ii)  is subject to a contract agreed to by
1-40     each owner of land in the habitat preserve or proposed habitat
1-41     preserve providing that all or part of the owner's land be used or
1-42     managed as a habitat preserve.
1-43                 (8) [(7)]  "Habitat preserve" means land set aside or
1-44     managed for the protection of endangered species under a federal
1-45     permit.
1-46                 (9) [(8)]  "Harm" means significant habitat
1-47     modification or degradation that, by significantly impairing
1-48     essential behavioral patterns, including breeding, feeding,
1-49     sheltering, or migrating, is the proximate cause of:
1-50           (A)  the death of a member of an endangered species; or
1-51           (B)  the physical injury of a member of an endangered
1-52     species.
1-53                 (10) [(9)]  "Land development standards" means rules or
1-54     ordinances regulating the development of land, including impervious
1-55     cover limitations, building setbacks, zoning, floor-to-area ratios,
1-56     building coverage, water quality controls and regulations,
1-57     landscaping, building height, development setbacks, compatibility
1-58     standards, traffic analyses, driveway cuts, impact fees, and
1-59     transfer of development rights.  The term does not include fire or
1-60     building codes or restrictions on the withdrawal of groundwater.
1-61                 (11) [(10)]  "Mitigation fee" means a charge or in-kind
1-62     contribution that is based on the amount of harm and is paid or
1-63     provided to a plan participant in exchange for mitigation credit to
1-64     be used to comply with the federal act.
 2-1                 (12) [(11)]  "Plan participant" means a governmental
 2-2     entity that develops, attempts to develop, adopts, approves, or
 2-3     participates in a regional habitat conservation plan or habitat
 2-4     conservation plan.
 2-5                 (13) [(12)]  "Regional habitat conservation plan" means
 2-6     a plan or program to protect endangered species by habitat
 2-7     preserves or other protection strategies developed in order to
 2-8     obtain a federal permit that requires the acquisition or regulation
 2-9     of land or interests in land not owned by a plan participant at the
2-10     time of application for a federal permit.
2-11           SECTION 3.  Section 83.012, Parks and Wildlife Code, is
2-12     amended to read as follows:
2-13           Sec. 83.012.  PURPOSE.  The purpose of this subchapter is to:
2-14                 (1)  establish the requirements for and authority of a
2-15     governmental entity to regulate wildlife through the development,
2-16     financing, and implementation of a regional habitat conservation
2-17     plan or a habitat conservation plan;
2-18                 (2)  encourage governmental entities to use the
2-19     authority under this subchapter to develop and implement habitat
2-20     conservation plans instead of regional habitat conservation plans;
2-21                 (3)  coordinate, to the greatest extent practicable,
2-22     habitat preserves with lands set aside or to be set aside under
2-23     local, state, or federal laws or regulations;
2-24                 (4)  prohibit plan participants from devaluing land
2-25     containing endangered species or endangered species habitat through
2-26     plan participant actions; [and]
2-27                 (5)  require plan participants of existing regional
2-28     habitat conservation plans to comply with the requirements of this
2-29     subchapter so that existing regional habitat conservation plans
2-30     become habitat conservation plans as quickly as possible; and
2-31                 (6)  to ensure basic utility services and obligations
2-32     are not conditioned upon a predetermination by the utility that the
2-33     utility customer needs authorization for incidental taking pursuant
2-34     to the federal act.
2-35           SECTION 4.  Section 83.014, Parks and Wildlife Code, is
2-36     amended by adding Subsection (e) to read as follows:
2-37           (e)  A utility may not deny service to any landowner,
2-38     business, political subdivision, utility, or other entity:
2-39                 (1)  as part of either a utility's individual habitat
2-40     conservation plan or any other type of habitat conservation plan
2-41     approved and implemented pursuant to the federal act;
2-42                 (2)  as part of any agreements entered into with the
2-43     federal government or an agent thereof pursuant to Section 7 of the
2-44     federal act; or
2-45                 (3)  otherwise condition the provision of utility
2-46     service to any landowner, business, political subdivision, utility,
2-47     or other entity on the basis of that entity having first obtained
2-48     an incidental take permit under Section 10 of the federal act or
2-49     having received authorization for the taking of an endangered
2-50     species under Section 7 of the federal act.
2-51           SECTION 5.  This Act takes effect September 1, 2001.
2-52                                  * * * * *