82R2118 TRH-D
 
  By: Bonnen 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 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 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 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 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 commissioner with regard
  to 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 committee members [The 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 (c), (d), (e), (f), (g), and (h) and
  adding Subsections (f-1) and (f-2) to read as follows:
         (c)  The commissioner [council] may not review a proposed
  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 unless:
               (1)  the consistency determination for the proposed
  action was contested by:
                     (A)  a member of the committee [a council member]
  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.  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 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 the commissioner's [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. (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 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 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 presents [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 commissioner [council] may only determine the agency
  or subdivision action's consistency. If an activity requiring an
  agency or subdivision action above thresholds 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)  If, after review, the commissioner [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 commissioner [chair of the
  council], may seek mediation of the matter in accordance with
  federal law.
         (h)  The commissioner [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 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.  Sections 33.004(13), 33.052(c), 33.203(20),
  33.204(b), (c), and (d), 33.2042, 33.2043, 33.2044, 33.2045,
  33.2053(g), 33.211, and 33.212, Natural Resources Code, are
  repealed.
         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.