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By: Geren, Escobar H.B. No. 116
Substitute the following for H.B. No. 116:
By: Miller C.S.H.B. No. 116
A BILL TO BE ENTITLED
AN ACT
relating to the establishment of the farm and ranch lands
conservation program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 183, Natural Resources Code, is amended
by designating Sections 183.001-183.005 as Subchapter A, Chapter
183, Natural Resources Code, and by adding a heading for that
subchapter to read as follows:
SUBCHAPTER A. CONSERVATION EASEMENTS GENERALLY
SECTION 2. Chapter 183, Natural Resources Code, is amended
by adding Subchapter B to read as follows:
SUBCHAPTER B. TEXAS FARM AND RANCH LANDS CONSERVATION
PROGRAM
Sec. 183.051. PURPOSE. The purpose of this subchapter is to
enable and facilitate the purchase and donation of agricultural
conservation easements.
Sec. 183.052. DEFINITIONS. In this subchapter:
(1) "Agricultural conservation easement" means a
conservation easement as that term is defined in Section 183.001,
except that an easement established under this subchapter for the
specific purpose of conserving qualified land must accomplish one
or more of the following additional purposes:
(A) conserve water quality or quantity;
(B) conserve native wildlife species through
protection of their habitat;
(C) conserve rare or sensitive plant species; or
(D) conserve large tracts of qualified
open-space land that are threatened with fragmentation or
development.
(2) "Commissioner" means the commissioner of the
General Land Office.
(3) "Council" means the seven member Texas Farm and
Ranch Lands Conservation Advisory Council, appointed by the
governor, whose purpose is to provide recommendations to the
commissioner on the administration of the program.
(4) "Fund" means the Texas farm and ranch lands
conservation fund, an account of the land office dedicated to
funding the purchase of agricultural conservation easements
through grants to qualified easement holders under this subchapter.
(5) "Land office" means the General Land Office.
(6) "Program" means the Texas farm and ranch lands
conservation program of the land office, the purpose of which is to
conserve qualified lands through the purchase of agricultural
conservation easements.
(7) "Purchase of agricultural conservation easement"
means the purchase from a willing seller of an agricultural
conservation easement on qualified land either in perpetuity or for
a term of 30 years.
(8) "Qualified easement holder" means a "holder" as
defined by Section 183.001, except that for purposes of this
subchapter, only a state agency, a municipality or a Section
501(c)(3) organization that is organized for the purpose of
preserving agriculture, open space, or natural resources may
receive grants from the fund.
(9) "Qualified land" means qualified open-space land
as that term is defined by Section 23.51, Tax Code.
Sec. 183.053. TERMS OF AGRICULTURAL CONSERVATION EASEMENT.
The owner of qualified land and a potential purchaser of an
agricultural conservation easement should consider and negotiate
easement terms, including the following considerations:
(1) whether the landowner will receive a lump sum or
annual or monthly payments;
(2) whether the term of the easement shall be
perpetual or for a term of 30 years;
(3) whether a term easement is renewable;
(4) whether the landowner retains limited development
rights for personal or family residences on the land; and
(5) the market value of the easement.
Sec. 183.054. TERMINATION OF EASEMENT. (a) An easement
under this subchapter may not be assigned to or enforced by a third
party without the express written consent of the landowner.
(b) Any time after an agricultural conservation easement is
acquired with a grant awarded under this subchapter, the landowner
may request the commissioner to terminate the easement as provided
by this subchapter on the ground that the landowner is unable to
meet the conservation goals as described in this subchapter. The
termination request must contain a verifiable statement of
impossibility.
(c) Upon receipt of the request for termination, the
commissioner shall notify the easement holder and conduct an
inquiry. Within 180 days after receipt of the request the
commissioner shall notify the parties of the decision to grant or
deny the request for termination. Either party shall have 45 days
from the date of the notification to appeal the decision in district
court.
Sec. 183.055. REPURCHASE BY LANDOWNER. (a) If a
request for termination is granted, the commissioner shall order an
appraisal of the fair market value and the agricultural value of the
property subject to the easement. The landowner shall bear the cost
of the appraisal.
(b) For purposes of this section:
(1) "Fair market value" means the price as of the
appraisal date that a buyer willing, but not obligated, to buy would
pay for the land at its best and most beneficial use under any
obtainable development zoning category.
(2) "Agricultural value" means the price as of the
appraisal date a buyer willing, but not obligated, to buy would pay
for a farm or ranch unit with land comparable in quality and
composition to the subject property, but located in the nearest
location where profitable farming or ranching is feasible.
(c) Within 180 days of the appraisal, the landowner must pay
to the fund an amount equal to the difference between the current
fair market value and the agricultural value.
(d) Within 30 days of payment as described by Subsection (c)
of this section the easement holder shall terminate the easement.
(e) If the request for termination is denied, or the owner
fails to repurchase the easement within 180 days of the appraisal,
the owner may not subsequently request termination until the
expiration of five years from the date of the last request.
Sec. 183.056. PROTECTED LAND; NOTICE OF TAKING. (a) A
department or agency of this state, a county, a municipality, or
other political subdivision may not approve any program or project
that requires the use or taking through eminent domain of private
land encumbered by an agricultural conservation easement purchased
under this subchapter unless the governmental entity acting through
its governing body or officers determines that:
(1) there is no feasible and prudent alternative to
the use or taking of the land; and
(2) the program or project includes all reasonable
planning to minimize harm to the land resulting from the use or
taking.
(b) A finding required by Subsection (a) may be made only at
a properly noticed public hearing.
(c) The governing body or officer shall consider clearly
enunciated local preferences, and the provisions of this subchapter
do not constitute a mandatory prohibition against the use of the
area if the findings are made that justify the approval of a program
or project.
(d) Any department or agency of this state, a county, a
municipality, or other political subdivision exercising the power
of eminent domain in accordance with the provisions of this
subchapter on land encumbered by an agricultural conservation
easement purchased under this subchapter shall:
(1) pay to the fund an amount equal to the original
amount granted from the fund for the purchase of the easement; and
(2) pay to the landowner the sum of the fair market
value and the agricultural value less an amount equal to the
original grant from the fund for the purchase of the easement.
Sec. 183.057. TEXAS FARM AND RANCH LANDS CONSERVATION FUND.
(a) The Texas agricultural lands conservation fund is established
as an account of the land office dedicated to funding the purchase
of agricultural conservation easements through grants to qualified
easement holders under this subchapter. The fund may not be used
for grants to purchase or acquire any right or interest in property
by eminent domain. The fund consists of:
(1) money appropriated by the legislature to the fund;
(2) public or private grants, gifts, donations or
contributions; or
(3) funds from any other source, including proceeds
from the sale of bonds, state or federal mitigation funds, or funds
from any local, state, or federal program.
(b) The Texas farm and ranch lands conservation program is
established as a program of the land office for the purpose of
administering the assistance to be provided by the fund.
(c) The fund may be used only:
(1) to award grants for the purchase of agricultural
conservation easements, the value of which shall be determined by a
site–specific estimate–of–value appraisal performed by a licensed,
qualified appraiser;
(2) to pay transaction costs related to the purchase
of agricultural conservation easements, which may include
reimbursement of appraisal costs; and
(3) to pay not more than five percent of the money in
the fund for associated administrative costs of the land office.
Sec. 183.058. ADMINISTRATION OF THE FUND. (a) The fund
shall be managed and administered by the commissioner to achieve
the goals of the program. The commissioner may:
(1) in consultation with the council adopt rules
necessary to perform program duties under this subchapter;
(2) request, accept, and use gifts, loans, donations,
aid, appropriations, guaranties, subsidies, grants, or
contributions of any item of value for the furtherance of any
purposes of this subchapter;
(3) establish, charge, and collect fees, charges, and
penalties in connection with the programs, services, and activities
provided for by this subchapter;
(4) make, enter into, and enforce contracts and
agreements, and take other actions as may accomplish any of the
purposes of this subchapter;
(5) seek ways to coordinate and leverage public and
private sources of funding;
(6) adopt best practices and enforcement standards for
the evaluation of easements purchased through grants from the fund;
(7) establish a protocol for the purchase of
agricultural conservation easements and for the distribution of
funds to approved applicants;
(8) evaluate selection and eligibility based on
criteria established by this subchapter and administer grants
awarded to successful applicants;
(9) ensure that agricultural conservation easements
purchased under this subchapter are not inconsistent with the
preservation of open space and the conservation of wildlife habitat
or water; and
(10) award grants and approve the termination of
easements and take any other action necessary to further the goals
of the program.
(b) To receive a grant from the fund under this subchapter,
an applicant who is qualified to be an easement holder under this
subchapter must submit an application to the commissioner. The
application must:
(1) set out the parties' clear conservation goals
consistent with the program;
(2) include a site–specific estimate–of–value
appraisal by a licensed appraiser qualified to determine the market
value of the easement;
(3) demonstrate that the applicant is able to match 50
percent of the amount of the grant being sought, considering that
the council may choose to allow a donation of part of the appraised
value of the easement to be considered as in-kind matching funds;
and
(4) include a memorandum of understanding from the
landowner and signed by the applicant indicating intent to sell a
conservation easement and the terms of the contract.
Sec. 183.059. CRITERIA FOR AWARDING GRANTS. The
commissioner shall adopt a scoring process that considers the
following:
(1) maintenance of landscape and watershed integrity
to conserve water and natural resources;
(2) protection of highly productive agricultural
lands;
(3) protection of habitats for native plant and animal
species, including habitats for endangered, threatened, rare, or
sensitive species;
(4) susceptibility of the subject property to
subdivision, fragmentation, or other development;
(5) potential for leveraging state money allocated to
the program with additional public or private money;
(6) proximity of the subject property to other
protected lands;
(7) term of the proposed easement, whether perpetual
or for a specified term of years; and
(8) resource management plan agreed to by both parties
and approved by the commissioner.
Sec. 183.060. TEXAS FARM AND RANCH LANDS CONSERVATION
ADVISORY COUNCIL. (a) The Texas Farm and Ranch Lands Conservation
Advisory Council is established to advise and assist the
commissioner with administration of the program established within
the land office and consists of:
(1) one member who operates a family farm or ranch in
this state;
(2) one member who is the designated representative of
an agricultural banking or lending organization and who has
significant experience lending for farms and ranches and lands
encumbered by conservation easements;
(3) one member who is a licensed real estate appraiser
in good standing and who has significant experience appraising
farms and ranches and lands encumbered by conservation easements;
(4) two members who are the designated representatives
of statewide agricultural organizations in existence in this state
for at least ten years;
(5) one member who has significant experience with
water policy and management issues;
(6) one member from a state institution of higher
education who has significant experience with wildlife management
issues; and
(7) One ex-officio member is the state conservationist
of the U.S.D.A. Natural Resource Conservation Service or a designee
of that person.
(b) Members of the council serve staggered terms of six
years, with two or three of the members' terms expiring February 1
of each odd-numbered year.
(c) Appointments to and removal from the council shall be
made by the governor without regard to the race, color, disability,
sex, religion, age, or national origin of the appointees.
(d) The commissioner shall designate two members of the
council as the chair and the vice chair of the council to serve in
those capacities at the will of the commissioner. The council may
choose from its members other officers as the council considers
necessary.
(e) A member of the council is not entitled to compensation
for service on the council but is entitled to reimbursement of the
necessary and reasonable travel expenses incurred by the member
while conducting the business of the council, as provided for state
employees by the General Appropriations Act.
(f) The council shall meet not less than twice each year.
(g) In this section, "Texas trade association" means a
cooperative and voluntarily joined statewide association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest. A person may not be appointed as a council member
or general counsel to the council if the person or the person's
spouse:
(1) is employed by or participates in the management
of a business entity or other organization receiving money from the
council;
(2) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization receiving money from the council;
(3) uses or receives a substantial amount of tangible
goods, services, or money from the council other than compensation
or reimbursement authorized by law for council membership,
attendance, or expenses;
(4) the person is an officer, employee, or paid
consultant of a Texas trade association for an occupation or
profession with an interest in land conservation that is related to
the occupation or profession;
(5) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association for an occupation or
profession with an interest in land conservation that is related to
that occupation or profession; or
(6) the person is required to register as a lobbyist
under Chapter 305, Government Code, because of the person's
activities for compensation on behalf of an occupation or
profession with an interest in land conservation that is related to
that occupation or profession.
(h) It is a ground for removal from the council if a member:
(1) is ineligible for membership under this section;
(2) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(3) is absent from more than half of the regularly
scheduled council meetings that the member is eligible to attend
during a calendar year without an excuse approved by a majority vote
of the council.
(i) The validity of an action of the council is not affected
by the fact that it is taken when a ground for removal of a
participating council member exists.
(j) If the presiding officer has knowledge that a potential
ground for removal exists, the presiding officer shall notify the
commissioner and the governor that a potential ground for removal
exists.
(k) The presiding officer or the presiding officer's
designee, with the assistance of staff of the land office, shall
provide to members of the council information regarding a member's
responsibilities under applicable laws relating to standards of
conduct for state officers.
(l) A person who is appointed to and qualifies for office as
a member of the council may not vote, deliberate, or be counted as a
member in attendance at a meeting of the council until the person
completes a training program that complies with this section. The
training program must provide the person with information
regarding:
(1) the legislation that created the council;
(2) the program to be administered under this
subchapter;
(3) the role and functions of the council;
(4) the rules of the council, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the council;
(6) the results of the most recent formal audit of the
council;
(7) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the public information law, Chapter 552,
Government Code;
(C) the administrative procedure law, Chapter
2001, Government Code; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable policies adopted by the council or
the Texas Ethics Commission.
(m) A person appointed to the council is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
SECTION 3. This Act takes effect September 1, 2005.