82R21879 TRH-D

By: Bonnen H.B. No. 2250

Substitute the following for H.B. No. 2250:

By: King of Zavala C.S.H.B. No. 2250

A BILL TO BE ENTITLED

AN ACT

relating to the abolition of the Coastal Coordination Council and the transfer of its functions to the General Land Office.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 201.026(g), Agriculture Code, is amended to read as follows:

(g) In an area that the state board identifies as having or having the potential to develop agricultural or silvicultural nonpoint source water quality problems or an area within the "coastal zone" designated by the commissioner of the General Land Office [Coastal Coordination Council], the state board shall establish a water quality management plan certification program that provides, through local soil and water conservation districts, for the development, supervision, and monitoring of individual water quality management plans for agricultural and silvicultural lands. Each plan must be developed, maintained, and implemented under rules and criteria adopted by the state board and comply with state water quality standards established by the Texas Commission on Environmental Quality. The state board shall certify a plan that satisfies the state board's rules and criteria and complies with state water quality standards established by the Texas Commission on Environmental Quality under the commission's exclusive authority to set water quality standards for all water in the state.

SECTION 2. Section 33.004, Natural Resources Code, is amended by adding Subdivision (2-a) to read as follows:

(2-a) "Committee" means the Coastal Coordination Advisory Committee.

SECTION 3. Section 33.051, Natural Resources Code, is amended to read as follows:

Sec. 33.051. GENERAL DUTY. The board, the commissioner [council], the land office, and the network shall perform the duties provided in this subchapter.

SECTION 4. Section 33.052(a), Natural Resources Code, is amended to read as follows:

(a) The commissioner shall develop a continuing comprehensive coastal management program pursuant to the policies stated in Section 33.202 [of this code. The program is not effective until approved by a majority of the council under Section 33.204 of this code].

SECTION 5. Section 33.052(b), Natural Resources Code, as amended by Chapters 165 (S.B. 971) and 416 (H.B. 3226), Acts of the 74th Legislature, Regular Session, 1995, is reenacted and amended to read as follows:

(b) In developing the program, the land office shall act as the lead agency to coordinate and implement a comprehensive coastal management program [develop a long-term plan] for the management of uses affecting coastal natural resource areas, in cooperation with other state agencies that have duties relating to coastal matters[, including those agencies represented on the council]. The program shall implement the policies stated in Section 33.202 [of this code] and shall include the elements listed in Section 33.053 [of this code].

SECTION 6. Section 33.052(e), Natural Resources Code, is amended to read as follows:

(e) This section does not add to or subtract from the duties and responsibilities of a state agency other than the land office, the commissioner [council], and the board.

SECTION 7. Section 33.055, Natural Resources Code, is amended to read as follows:

Sec. 33.055. PUBLIC HEARINGS TO CONSIDER COASTAL MANAGEMENT PROGRAM. In developing, reviewing, or amending the coastal management program, after due notice to affected persons and the public generally, the commissioner [and the council] shall hold or have held public hearings as the commissioner determines [and the council determine] to be appropriate.

SECTION 8. Sections 33.204(a), (e), (f), and (g), Natural Resources Code, are amended to read as follows:

(a) The commissioner [council] by rule shall adopt goals and policies of the coastal management program. A goal or policy may not require an agency or subdivision to perform an action that would exceed the constitutional or statutory authority of the agency or subdivision to which the goal or policy applies.

(e) In conducting consistency reviews under Section 33.205 [of this code], the commissioner [council] shall receive and consider the oral or written testimony of any person regarding the coastal management program as the testimony relates to the agency or subdivision action or federal agency action or activity or outer continental shelf plan under review. The commissioner [council] may reasonably limit the length and format of the testimony and the time at which it will be received. Notice of the period during which the testimony will be received shall be published in the Texas Register and in a newspaper of general circulation in each county directly affected by the matter under review before the commencement of that period. The commissioner [council] shall consider only the record before the agency or subdivision involved in the matter under review, the agency's or subdivision's findings, applicable laws and rules, any additional information provided by that agency or subdivision, and public testimony under this subsection, provided that if the agency or subdivision did not hold a hearing, make a record, or make findings, the commissioner [council] may hold a hearing and make findings necessary to a complete and thorough review.

(f) [The land office shall assist the council in carrying out its duties. The council members may not receive compensation for services but may receive reimbursement for actual and necessary expenses.] The land office, in coordination with other agencies and subdivisions, shall prepare an annual report on the effectiveness of the coastal management program. [The land office shall submit the report to the council for approval.] On or before January 15 of each odd-numbered year, the land office shall send to the legislature each of the previous two annual reports.

(g) The commissioner [council] may award grants to projects that further the goals and policies of the coastal management program [council]. The commissioner [council] shall establish the procedures for making any determination related to awarding a grant.

SECTION 9. Section 33.2041, Natural Resources Code, is amended to read as follows:

Sec. 33.2041. COASTAL COORDINATION ADVISORY COMMITTEE [COMPOSITION OF COUNCIL; TERMS]. (a) The commissioner by rule shall establish the Coastal Coordination Advisory Committee to advise the commissioner on matters related to the coastal management program. The committee [council] shall consist of:

(1) a representative of each of the following entities designated by the presiding officer of that entity [ex officio members]:

(A) the land office [commissioner];

(B) the [presiding officer of the] Parks and Wildlife Department [Commission or a member of the commission designated by the presiding officer];

(C) the [presiding officer of the] Texas Commission on Environmental Quality [Natural Resource Conservation Commission or a member of the commission designated by the presiding officer];

(D) [a member of] the Railroad Commission of Texas [appointed by that commission];

(E) the [presiding officer of the] Texas Water Development Board [or a member of the board designated by the presiding officer];

(F) the [presiding officer of the] Texas Department of Transportation [Commission or a member of the commission designated by the presiding officer];

(G) [a member of] the State Soil and Water Conservation Board [appointed by that board]; and

(H) the [director of the] Texas [A&M University] Sea Grant College Program to serve as a nonvoting member; and

(2) the following members to be appointed by the commissioner [governor with the advice and consent of the senate to serve a two-year term]:

(A) a city or county elected official who resides in the coastal area;

(B) an owner of a business located in the coastal area who resides in the coastal area;

(C) a resident from the coastal area; and

(D) a representative of agriculture.

(b) The commissioner by rule shall establish the terms of office for and duties of committee members [terms of the positions on the council held by the city or county elected official who resides in the coastal area and the resident from the coastal area expire May 31 of each even-numbered year. The terms of the positions on the council held by the owner of a business located in the coastal area who resides in the coastal area and the representative of agriculture expire May 31 of each odd-numbered year].

(c) Chapter 2110, Government Code, does not apply to the size, composition, or duration of the committee [Appointments to the council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees].

SECTION 10. The heading to Section 33.205, Natural Resources Code, is amended to read as follows:

Sec. 33.205. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM; COMMISSIONER [COUNCIL] REVIEW.

SECTION 11. Section 33.205, Natural Resources Code, is amended by amending Subsections (b), (c), (d), (e), (f), (g), and (h) and adding Subsections (f-1) and (f-2) to read as follows:

(b) An agency or subdivision subject to the requirements of Subsection (a) shall affirm that it has taken into account the goals and policies of the coastal management program by issuing a written determination that a proposed agency or subdivision action described by Section 33.2051 or 33.2053 is consistent with the program goals and policies.

(c) The commissioner [council] may [not] review a proposed agency or subdivision action subject to the requirements of Subsections (a) and (b) [of this section] for consistency with the goals and policies of the coastal management program if [unless]:

(1) the consistency determination for the proposed action was contested by:

(A) a [council] member of the committee or an agency that was a party in a formal hearing under Chapter 2001, Government Code, or in an alternative dispute resolution process; or

(B) another [a council member or other] person by the filing of written comments with the agency before the action was proposed if the proposed action is one for which a formal hearing under Chapter 2001, Government Code, is not available; and

(2) a person described by Subdivision (1) [of this subsection] files a request for referral alleging a significant unresolved dispute regarding the proposed action's consistency with the goals and policies of the coastal management program[; and

[(3) any three members of the council other than the director of the Texas A&M University Sea Grant Program agree that there is a significant unresolved dispute regarding the proposed action's consistency with the goals and policies of the coastal management program and the matter is placed on the agenda for a council meeting].

(d) If consistency review thresholds are in effect under Section 33.2052, the commissioner [council] may not review a proposed action subject to the requirements of Subsections (a) and (b) for consistency with the goals and policies of the coastal management program unless the requirements of Subsection (c) are satisfied and:

(1) if the proposed action is one for which a formal hearing under Chapter 2001, Government Code, is available:

(A) the action exceeds the applicable thresholds and the agency's consistency determination was contested in a formal hearing or in an alternative dispute resolution process; or

(B) the action does not exceed the applicable thresholds but may directly and adversely affect a critical area, critical dune area, coastal park, wildlife management area or preserve, or gulf beach and a state agency contested the agency's consistency determination in a formal hearing; or

(2) if the proposed action is one for which a formal hearing under Chapter 2001, Government Code, is not available to contest the agency's determination, the action exceeds the applicable thresholds.

(e) The commissioner [council] must consider and act on a matter referred under Subsection (c) or (d) before the 26th day after the date the agency or subdivision proposed the action. For purposes of this section, an action subject to the contested case provisions of Chapter 2001, Government Code, is proposed when notice of a decision or order is issued under Section 2001.142, Government Code.

(f) The commissioner [council] by rule shall establish a process by which an applicant for a permit or other proposed action described in Section 33.2053, or an agency or subdivision proposing an action, may request and receive a preliminary consistency review. The rules shall:

(1) create a permitting assistance group composed of representatives of committee [council] member agencies and other interested committee [council] members to coordinate the preliminary reviews; and

(2) require that the following written information be produced not later than the 45th day after the date of the request for preliminary review:

(A) a statement from each agency or subdivision required to permit or approve the project as to whether the agency or subdivision anticipates approving or denying the application;

(B) if an agency or subdivision intends to deny an application, the agency's or subdivision's explanation of the grounds for denial and recommendations for resolving the grounds in a way that would allow the application to be approved;

(C) if enough information is already available, a preliminary finding as to whether the project is likely to be found consistent with the goals and policies of the coastal management program; and

(D) if the project is likely to be found inconsistent with the goals and policies of the coastal management program, an explanation and recommendation for resolving the inconsistency in a way that would allow the project to be found consistent.

(f-1) Not later than January 1, 2012, the commissioner shall evaluate the functions, including any pending initiatives, membership, and usefulness of the permitting assistance group established under Subsection (f). The evaluation must include input from all members of the permitting assistance group and the committee. This subsection expires April 1, 2012.

(f-2) The commissioner may adopt rules as necessary to:

(1) restructure or abolish the permitting assistance group;

(2) expand the functions of the permitting assistance group; or

(3) add members to the permitting assistance group.

(g) The commissioner [council] by rule shall establish a process by which an individual or small business may request and receive assistance with filing applications for permits or other proposed actions described by Section 33.2053. The rules shall provide for:

(1) the coordination of preapplication assistance through the permitting assistance group; and

(2) the provision of the following, by the permitting assistance group, to an individual or a small business, on request:

(A) a list of the permits or other approvals necessary for the project;

(B) a simple, understandable statement of all permit requirements;

(C) a coordinated schedule for each agency's or subdivision's decision on the action;

(D) a list of all the information the agencies or subdivisions need to declare the applications for the permits or other approvals administratively complete;

(E) assistance in completing the applications as needed; and

(F) if enough information is already available, a preliminary finding as to whether the project is likely to be found consistent with the goals and policies of the coastal management program.

(h) If an agency, subdivision, or applicant has received a preliminary finding of consistency under Subsection (f)(2)(C) or (g)(2)(F) and a request for referral was filed on that action under Subsection (c)(2), the commissioner [council] may accept the request for referral only if the agency or subdivision has substantially changed the permit or proposed action since the preliminary finding was issued.

SECTION 12. Section 33.2051(e), Natural Resources Code, is amended to read as follows:

(e) The commissioner [council] may not review a proposed rule of the [Texas] Department of Agriculture.

SECTION 13. Section 33.2052, Natural Resources Code, is amended to read as follows:

Sec. 33.2052. CERTIFICATION OF AGENCY RULES; AGENCY ACTIONS CONSIDERED CONSISTENT. (a) The commissioner [council] by rule shall establish and may modify a process by which an agency may submit rules and rule amendments described by Section 33.2051 to the commissioner [council] for review and certification for consistency with the goals and policies of the coastal management program.

(b) The process must provide that an agency may submit to the commissioner [council] consistency review thresholds for the agency's actions described in Section 33.2053. After the commissioner [council] certifies that an agency's rules are consistent and approves the agency's thresholds, the agency's consistency determination under Section 33.205(b) for an action is final and is not subject to referral and review, except as provided by Section 33.205(d).

(c) The commissioner [council] by rule shall provide that the commissioner [council] may revoke a [its] certification under Subsection (b) if the commissioner [council] finds that an agency has:

(1) implemented certified rules in a manner that conflicts with the goals and policies of the coastal management program; or

(2) amended certified rules in a manner inconsistent with the goals and policies of the coastal management program.

SECTION 14. Sections 33.2053(j) and (k), Natural Resources Code, are amended to read as follows:

(j) An action to renew, amend, or modify an existing permit, certificate, lease, easement, approval, or other action is not an action under this section if the action is taken under a rule that the commissioner [council] has certified under Section 33.2052 and:

(1) for a wastewater discharge permit, if the action is not a major permit modification that would:

(A) increase pollutant loads to coastal waters; or

(B) result in relocation of an outfall to a critical area;

(2) for solid, hazardous, or nonhazardous waste permits, if the action is not a Class III modification under rules of the Texas [Natural Resource Conservation] Commission on Environmental Quality; or

(3) for any other action, if the action:

(A) only extends the period of the existing authorization and does not authorize new or additional work or activity; or

(B) is not directly relevant to Sections 33.205(a) and (b).

(k) The commissioner [council] shall establish a program boundary to limit the geographic area in which the requirements of Sections 33.205(a) and (b) apply. The boundary is the coastal facility designation line as defined by Appendix 1 to 31 TAC Section 19.2 as that appendix existed on the effective date of this section, as modified by Section 33.203(7). Except as provided by Subsections (f)(8)-(10), this subchapter does not apply to an agency action authorizing an activity outside the program boundary.

SECTION 15. Section 33.206, Natural Resources Code, is amended to read as follows:

Sec. 33.206. [COUNCIL] ACTION BY COMMISSIONER OR ATTORNEY GENERAL. (a) A proposed action is consistent with the goals and policies of the coastal management program and approved by the commissioner [council] unless[, on the affirmative vote of at least two-thirds of the members of the council,] the commissioner [council] determines the action to be inconsistent with the coastal management program and protests the action.

(b) If the commissioner [council] protests the proposed action, the commissioner [council] shall report the commissioner's [its] findings on the matter to the agency or subdivision. The report shall specify how the proposed action is inconsistent with the goals and policies of the coastal management program and include specific recommendations of the commissioner [council] regarding how the proposed action may be modified or amended to make it consistent with the program. Before the 21st day after the date the agency or subdivision receives the report, the agency or subdivision shall review the findings and recommendations and determine whether to modify or amend the proposed action to make it consistent with the goals and policies of the coastal management program and shall notify the commissioner [council] of its decision.

(c) If an agency or subdivision does not modify or amend a proposed action to be consistent with the goals and policies of the coastal management program, the commissioner [council] shall request the attorney general to issue an opinion on the consistency of the proposed action with the coastal management program. The agency or subdivision is stayed from taking the proposed action until the attorney general issues the opinion. The attorney general shall issue an opinion before the 26th day after the date the commissioner [council] requests the opinion.

(d) The commissioner [council] shall adopt guidance and procedural rules for the review of federal actions, activities, and outer continental shelf plans that incorporate the provisions of federal regulations governing those reviews. The guidance and rules shall provide that the commissioner [chair or any three members] may request additional information from a federal agency or additional time for review as provided by the federal regulations.

(e) The commissioner [council] shall review any federal action, activity, or outer continental shelf plan that the commissioner determines [any three members of the council agree] presents a significant unresolved issue regarding consistency with the goals and policies of the coastal management program [and place the matter on the agenda of a meeting of the council for review].

(f) [If an activity requiring an agency or subdivision action described by Section 33.2053 that falls below thresholds in effect under Section 33.2052 also requires an equivalent federal permit or license, the council may only determine the agency or subdivision action's consistency.] If an activity requiring an agency or subdivision action described by Section 33.2053 that falls above thresholds in effect under Section 33.2052 also requires an equivalent federal permit or license, the commissioner [council] may determine the consistency of the agency or subdivision action or the federal license or permit, but not both. The determination regarding the consistency of an action made by the commissioner [council] under this subsection constitutes the state's determination regarding consistency of the equivalent agency or subdivision action or federal action.

(g) Notwithstanding the other provisions of this subchapter, on request for referral, the commissioner may not review a consistency determination of the land office, the commissioner, or the board. The commissioner shall refer a request for a review of the consistency of such an action to the attorney general not later than the second day after the date the commissioner receives the request. The attorney general shall determine whether the action is consistent with the goals and policies of the coastal management program in accordance with the applicable provisions of this subchapter governing determinations by the commissioner. If the attorney general determines the action to be inconsistent with the goals and policies of the coastal management program, the attorney general may protest the action in accordance with the provisions of this subchapter governing protests by the commissioner. A protest by the attorney general has the same effect as a protest by the commissioner. The attorney general may adopt rules as necessary to implement this subsection [If, after review, the council finds a proposed federal agency action or activity or outer continental shelf plan is inconsistent with the coastal management program, and the federal agency does not modify the action, activity, or outer continental shelf plan to achieve consistency with the program, the governor, with the assistance of the chair of the council, may seek mediation of the matter in accordance with federal law].

[(h) The council may not protest a proposed action by an agency or subdivision pertaining to an application filed with that agency or subdivision before the date the coastal management program is adopted.]

SECTION 16. Section 33.207, Natural Resources Code, is amended to read as follows:

Sec. 33.207. COMMISSIONER [COUNCIL] RECOMMENDATIONS. In addition to the report required by Section 33.206, the commissioner [council]:

(1) may periodically submit recommendations to an agency or subdivision designed to encourage the agency or subdivision to carry out its functions in a manner consistent with the coastal management program, including recommendations for methods to simplify governmental procedures and changes in applicable rules or statutes; and

(2) shall report to the legislature on:

(A) recommended statutory changes needed to make more effective and efficient use of public funds and provide for more effective and efficient management of coastal natural resource areas, including recommendations on methods to simplify governmental procedures;

(B) agency or subdivision actions that are not consistent with the coastal management program; and

(C) population growth of, infrastructure needs of, and use of resources on the coast.

SECTION 17. Sections 33.208(b) and (c), Natural Resources Code, are amended to read as follows:

(b) If the attorney general issues an opinion under Section 33.206(c) that a proposed agency or subdivision action is inconsistent with the coastal management program and the agency or subdivision fails to implement the commissioner's [council's] recommendation regarding the action, the attorney general shall file suit in a district court of Travis County to enforce this subchapter. The court shall consider the attorney general's opinion in determining whether the proposed action is consistent with the coastal management program.

(c) Notwithstanding the request of an opinion from, or the filing of suit by, the attorney general, the commissioner [council] and the agency or subdivision may enter into a settlement agreement with regard to the proposed agency or subdivision action. If the commissioner [council] and the agency or subdivision enter into a settlement agreement, the commissioner [council] may rescind the commissioner's [its] request for an opinion from the attorney general.

SECTION 18. Section 33.209, Natural Resources Code, is amended to read as follows:

Sec. 33.209. PROHIBITION ON SPECIAL AREA MANAGEMENT PLANS. The land office [council] may not develop or approve a special area management plan, including a plan for an area designated under the national estuary program.

SECTION 19. The following provisions of the Natural Resources Code are repealed:

(1) Section 33.004(13);

(2) Section 33.052(c);

(3) Section 33.203(20);

(4) Sections 33.204(b), (c), and (d);

(5) Section 33.2042;

(6) Section 33.2043;

(7) Section 33.2044;

(8) Section 33.2045;

(9) Section 33.2053(g);

(10) Section 33.211; and

(11) Section 33.212.

SECTION 20. (a) Effective September 1, 2011, the Coastal Coordination Council is abolished and the powers and duties of the council are transferred to the General Land Office in accordance with Chapter 33, Natural Resources Code, as amended by this Act.

(b) As soon as possible after the effective date of this Act, the presiding officers of the appropriate entities shall appoint the members of the Coastal Coordination Advisory Committee in accordance with Section 33.2041, Natural Resources Code, as amended by this Act.

(c) All rules of the Coastal Coordination Council are continued in effect as rules of the General Land Office until superseded by a rule of the land office. A certification issued by the council is continued in effect as provided by the law in effect immediately before the effective date of this Act. A complaint, investigation, contested case, or other proceeding pending on the effective date of this Act is continued without change in status after the effective date of this Act. An activity conducted by the council is considered to be an activity conducted by the land office.

(d) A reference in another law or an administrative rule to the Coastal Coordination Council means the General Land Office.

(e) On September 1, 2011, or as soon as is possible after that date, the commissioner of the General Land Office shall adopt a comprehensive plan to ensure the smooth transition of all programs operated by the Coastal Coordination Council before September 1, 2011, from the council to the land office. During the transition, the General Land Office shall consult with the National Oceanic and Atmospheric Administration as necessary to ensure continued compliance with federal requirements and to maintain federal approval of the Texas Coastal Management Program.

(f) All money, records, property, and equipment in the possession of the Coastal Coordination Council on September 1, 2012, shall be transferred to the possession of the General Land Office on September 1, 2012, or as soon as possible after that date.

SECTION 21. This Act takes effect September 1, 2011.