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 * * * * *