HBA-ALS, BTC H.B. 430 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 430
By: Turner, Bob
Land and Resource Management
2/11/1999
Introduced



BACKGROUND AND PURPOSE 

Under current law, local political subdivisions may develop and enter into
conservation agreements with federal agencies that are not subject to open
meetings requirements or state monitoring.  There is concern that these
conservation plans may acquire and encumber private land inhabited by
endangered species without notification or participation by the private
landowners.  H.B. 430 establishes guidelines for developing and
implementing habitat and regional habitat conservation plans  by local
government entities. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 83, Parks and Wildlife Code, by designating
Sections 83.001 through 83.004, as Subchapter A, and adding a heading, as
follows:  

SUBCHAPTER A.  FEDERAL-STATE AGREEMENTS

SECTION 2.  Amends Subchapter A, Chapter 83, Parks and Wildlife Code, by
adding Section 83.005, as follows:   

Sec. 83.005.  CONSERVATION AGREEMENTS FOR PROTECTION OF SPECIES. Provides
that  any conservation agreement between the state and the United States
Department of the Interior must be developed in consultation with the Parks
and Wildlife Department (department) and be approved by the Parks and
Wildlife Commission (commission).  Provides that "conservation agreement"
includes an agreement between the state or a political subdivision of the
state and the U.S. Department of the Interior under the federal act that
does not relate to a federal permit as defined by Sec. 83.011. 

SECTION 3.  Amends Chapter 83, Parks and Wildlife Code, by adding
Subchapter B, as follows: 

SUBCHAPTER B.  HABITAT PROTECTION BY POLITICAL SUBDIVISIONS

Sec. 83.011.  DEFINITIONS.  Defines:

(1)  "biological advisory team," to mean three or more professional
biologists retained to provide biological guidance to plan participants. 

(2) "endangered species" to mean a species listed by the United States
Department of the Interior as endangered or threatened under the federal
act.  

(3)  "federal act" to mean the federal Endangered Species Act of 1973 (16
U.S.C. Section 1531 et seq.), as amended. 

(4)  "federal permit" to mean a permit issued under Section 7 or 10 (a) of
the federal act. 
 
(5)  "governmental entity" to mean a political subdivision of the state,
including a municipality and a county. 

(6)  "habitat conservation plan" to mean a plan to protect endangered
species by habitat preserves and other strategies developed to obtain a
federal permit. 

(7)   "habitat preserve" to mean land set aside or managed for the
protection of endangered species under a federal permit. 

(8)  "harm" to mean significant habitat modification or degradation that,
by significantly impairing essential behavioral patterns, including
breeding, feeding, sheltering, or migrating, is the proximate cause of the
injury or death of an endangered species animal. 

(9)  "land development standards" to mean rules or ordinances, with the
exception of fire and building codes, which regulates the development of
land, including impervious cover limitations, building setbacks, zoning,
floor-to-area ratios, building coverage, water quality controls and
regulations, landscaping, building height, development setbacks,
compatibility standards, traffic analyses, driveway cuts, impact fees, and
transfer of development rights. 

(10)  "mitigation fee" to mean a charge or in-kind contribution that is
based on the amount of harm and is paid or provided to a plan participant
in exchange for mitigation credit to be used to comply with the federal
act. 

(11)  "plan participant" to mean a governmental entity that develops,
attempts to develop, adopts, approves, or participates in a regional
habitat conservation plan or habitat conservation plan. 

(12)  "regional habitat conservation plan" to mean a plan or program to
protect endangered species by habitat preserves or other strategies
developed in order to obtain a federal permit which is required for the
acquisition or regulation of land not owned by plan participant. 

Sec. 83.012.  PURPOSE.  Establishes that the purpose of this subchapter is
to:  

(1)  set forth the requirements for and authority of a governmental entity
to regulate wildlife through the development, financing, and implementation
of a regional habitat conservation plan or a habitat conservation plan; 

(2)  encourage governmental entities to develop and implement habitat
conservation plans; 

(3)  coordinate habitat preserves with lands set aside or to be set aside
under local, state, or federal laws or regulations; 

(4)  prohibit plan participants from devaluing property containing
endangered species or endangered species habitat through participant
actions; 

(5)  require plan participants of existing regional habitat conservation
plans to comply with these requirements so existing regional habitat
conservation plans quickly become habitat conservation plans. 

Sec. 83.013.  AUTHORITY OF DEPARTMENT OR POLITICAL SUBDIVISION.  (a)
Authorizes the department or a political subdivision to participate in the
study and preparation for and creation of a habitat conservation plan. 

(b)  Authorizes the department or a political subdivision to participate in
the study and preparation for and creation of a regional habitat
conservation plan.   
 
(c)  Authorizes political subdivisions, including municipalities acting
within corporate limits or extraterritorial jurisdiction, to purchase land,
easements, or leases and enter into an agreement with a landowner to
establish alternative land development standards for a tract of land in
order to facilitate the creation of habitat preserve and the setting aside
of land to protect a species protected under a conservation agreement. 

(d)  Authorizes a plan participant to apply for a federal permit in
conjunction with a regional habitat conservation plan only if the qualified
voters of a plan participant have authorized the issuance of bonds or other
debt financing in an amount equal to the estimated cost of acquiring all
land for habitat preserves within the time required by this subchapter or
the plan participant has demonstrated adequate sources of funding to the
commission in which to acquire all land for habitat preserves within the
time required by this subchapter, and the requirements of Section 83.015
(e) have been met.   

(e)  Prohibits a governmental entity from implementing a regional
conservation plan or applying for a federal permit in conjunction with a
regional habitat conservation plan if the federal act is repealed or the
endangered species that are subject to conservation and protection under
the federal permit cease to be on the endangered species list.   

(f)  Authorizes a political subdivision to implement a regional habitat
conservation plan that received a federal permit between January 1, 1999,
and September 1, 1999, only if the plan participants comply with Sections
83.017(d), 83.018, and 83.019 within the prescribed time.  Provides that if
the plan participants do not meet a deadline pursuant to the previously set
guidelines, plan participants' authority to implement the plan
automatically terminates.  Authorizes participants to convert the regional
habitat conservation plan into a habitat conservation plan. 

(g)  Authorizes any owner of land within regional habitat conservation plan
boundaries, that received a federal permit between January 1, 1999 and
September 1, 1999, to bring an action against that plan participant to
enforce compliance with this subchapter or to seek actual damages
proximately caused by the plan participant's failure to comply and provides
that reasonable attorney's fees are recoverable if a landowner obtains a
judgment to enforce this chapter. 

(h)  Requires that an amendment to a regional habitat conservation plan be
reviewed and provides that it must be approved by the department for
compliance with the purposes and requirements of this subchapter prior to
submission to the United States Fish and Wildlife Service. 

Sec. 83.014.  LIMITATION OF POWERS.  (a)  Prohibits a governmental entity
from imposing a regulation, rule, or ordinance related to endangered
species unless it relates to the operation or management of a habitat
preserve owned by a plan participant. 

(b)  Prohibits a governmental entity from discriminating against a permit
application, permit approval, or the provision of utility service for
property that is or has been designated as habitat preserve or potential
habitat preserve in a regional habitat conservation plan or habitat
conservation plan; is designated as critical habitat under the federal act;
or has endangered species or endangered species habitat. 

(c)  Prohibits a governmental entity from denying or limiting available
water or wastewater service to property in the service area of the entity
that has been designated as habitat preserve or potential habitat preserve
in a regional habitat conservation plan or in a habitat conservation plan.
Prohibits a governmental entity from removing property from its water or
wastewater utility service areas after the date established under Section
83.018 (b). Prohibits a plan participant from removing property situated in
the participant's service area on January 1, 1998, if the regional habitat
conservation plan received a federal permit between January 1, 1999 and
September 1, 1999.  Requires any property subject to this section that has
been removed from the area to be reinstated in the  service area within 120
days after the effective date of this subchapter.   

Sec. 83.015.  BIOLOGICAL REVIEW; CRITERIA.  Requires a regional habitat
conservation plan, including any mitigation fee, and the size of proposed
habitat preserves to be based on the amount of harm to each endangered
species protected under the plan. Requires the plan participants, together
with the commission and landowner members of the citizens advisory
committee, to appoint a biological advisory team.  Requires that at least
one member of the team be appointed by the commission, who serves as
presiding officer of the team, and one member by the landowner members of
the citizens advisory committee. Requires the team to assist in the
calculation of harm to the endangered species and the sizing and
configuration of the habitat preserves.  Establishes that meetings and work
product of the team are subject to the open meetings law, Chapter 551,
Government Code, (Open Meetings) and open records law, Chapter 552,
Government Code, (Public Information), respectively.  Requires a regional
habitat conservation plan to be reviewed for compliance with this
subchapter and be approved by the commission before an application for a
federal permit is submitted.  Provides that the commission concur on the
calculation of harm used in the plan, as well as size and configuration of
habitat preserves. 

Sec.  83.016.  CITIZENS ADVISORY COMMITTEE.  (a)  Requires plan
participants to appoint a citizens advisory committee to assist in the
preparation of  a regional habitat conservation plan and the application of
a federal permit. 

(b)  Provides that at least four members or 33 percent of the committee,
whichever is greater, must own undeveloped property or property in
agricultural use in the regional habitat conservation plan area.  Prohibits
a landowner member from being an employee or elected official of a plan
participant or any other local, state, or federal governmental entity. 

(c)  Establishes that one-half of the landowner members appointed under
Subsection (b) or, if an odd number of members exist, the smallest number
of landowner members that constitutes a majority, are prohibited from
affiliation with any commonly recognized environmental group. 

(d)  Requires the commission to appoint one representative who is a voting
member, to the committee. 

Sec. 83.017.  DEVELOPMENT OF REGIONAL HABITAT CONSERVATION PLAN.  (a)
Establishes that the meetings of the citizens advisory committee and plan
participants regarding planning, development, and implementation of the
regional habitat conservation plan are subject to the open meetings law,
Chapter 551, Government Code (Open Meetings).  
(b)  Provides that all data, reports, and other information regarding the
regional habitat conservation plan, including field notes, lab notes, and
any other information relied on by the biological advisory team, are
subject to the open records law, Chapter 552, Government Code (Public
Information).   

(c)  Requires the plan participants to notify, in writing, each owner of
land identified by the plan participants, using county tax rolls, as
habitat preserve or potential habitat preserve.  Provides that the written
notice must include the tax identification and parcel numbers; the owner's
name and address;  an explanation of the designation or possible
designation of the tract as habitat preserve or potential habitat preserve
under the regional habitat conservation plan; the identification of the
citizens advisory committee members, including phone numbers, addresses,
and the group each member represents; the identification of employees or
agents of plan participants who can provide information about the regional
habitat conservation plan; the date of the next citizens advisory committee
meeting or plan participant meeting regarding the regional habitat
conservation plan; and a description of the status of the plan. 

(d)  Requires notice pursuant to Subsection (c) to be mailed not later than
October 1,  1999, to each landowner whose property has been designated
under a plan for habitat preserve or potential habitat preserve, for a plan
that received a federal permit between January 1, 1999, and September 1,
1999. 

Sec.  83.018.  PRESERVE ACQUISITION.  (a)  Prohibits the consideration of
the designation of a tract of land as habitat preserve or potential habitat
preserve or the presence of endangered species or endangered species
habitat in determining the fair market value of the property acquisition as
a habitat preserve. 

(b)  Prohibits the consideration of a change to plan participant rules and
regulations, including land development standards, that occurs after the
earliest date that the biological advisory team, citizens advisory
committee, or plan participant initially identifies a tract of land as
habitat preserve or potential habitat preserve, in determining the fair
market value of the property for acquisition as a habitat preserve. 

(c)  Requires, except as provided by Subsection (d), plan participants to
make offers based on fair market value to the landowners for the
acquisition of fee simple or other property interest in land designated in
the regional habitat conservation plan as habitat preserve not later than
two years after the issuance of the federal permit, or three years after
the initial application for the permit, whichever is earlier, but
completion of the acquisition is to be finalized no later than the fourth
anniversary of the date on which the federal permit was issued.  Requires a
plan participant subject to this subsection, who does not meet an
applicable deadline, to file an application to amend the federal permit to
remove the nonacquired habitat preserve property from the regional habitat
conservation plan as a habitat preserve not later than the 60th day after
the fourth anniversary of the permit issuance date. 

(d)  Requires plan participants to make offers based on fair market value
to the landowner for acquisition of fee simple or other property interest
of land designated in the federal permit as habitat preserve or potential
habitat preserve no later than January 1, 2001 for a regional habitat
conservation plan that received a federal permit between January 1, 1999,
and September 1, 1999.  Provides that acquisition of habitat preserves must
be completed by September 1, 2001.  Requires a plan participant who does
not meet required deadlines in this subsection to amend the federal permit
to remove the non-acquired habitat preserve property from the regional
habitat conservation plan and the federal permit as a habitat preserve no
later than September 1, 2001, for property not receiving a fair market
value offer by January 1, 2001, or not acquired by September 1, 2001.
Prohibits property removed as a habitat preserve or potential habitat
preserve from being removed from the regional habitat conservation plan or
habitat conservation plan areas eligible to pay mitigation fees or
otherwise being denied the right to pay a mitigation fee and receive
corresponding credit.  Provides that all or part of the property removed be
excluded from the regional habitat conservation plan if the owners make a
written request to be excluded.  Requires the plan participants to provide
written notice to the owner of property removed as a habitat preserve or
potential habitat preserve not later than the applicable deadline
established by this subsection wherein they are informed of their right to
withdraw all or part of the land from the regional habitat conservation
plan within six months after the date of receipt of notice.  Requires that
upon removal of the property as such, plan participants cease describing,
in any fashion, the property as such. 

Sec. 83.019.  NOTICE AND HEARING REQUIREMENTS.  (a)  Requires a plan
participant to comply with the notice and hearing requirements of this
section before adopting any regional habitat conservation plan, plan
amendment, ordinance, budget, fee schedule, rule, regulation, or order to
implement this subchapter.   

(b)  Requires a plan participant, individually or through interlocal
contract, to publish a notice, including a brief description of the
proposed action and the time and place of a public hearing on the proposed
action, no later than the 30th day before the public hearing in the
newspaper of largest general circulation in the county in which the plan
participant proposing the action is located. 
 
(c)  Requires a public hearing on the proposed action to be held at the
time and place specified in the notice. 

SECTION 4.   Repealer:  Section 83.006, Parks and Wildlife Code (Regional
Plans for Endangered 
  Species Protection).

SECTION 5.  Effective date:  September 1, 1999.

SECTION 6.  Emergency clause.