HBA-ALS C.S.H.B. 430 76(R) BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 430 By: Turner, Bob Land & Resource Management 2/26/1999 Committee Report (Substituted) HBA-ALS C.S.H.B. 430 76(R) 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 governmental 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 HBA-ALS, BTC H.B. 430 76(R) 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). 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 Parks and Wildlife Commission (commission) in which to acquire all land for habitat preserves within the time required by this subchapter. (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. 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). 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. 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 for 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. 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 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 non-acquired 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. 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. Sec. 83.020. GRIEVANCE WITH DEVELOPMENT OF REGIONAL HABITAT. (a) Authorizes an individual who is appointed to a citizens advisory committee under Section 83.016(b), to file a grievance with the commission if the individual believes that the regional habitat conservation plan is being developed in violation of this subchapter. Provides that the individual filing the grievance must have been a member of the citizens advisory committee for the plan named in the grievance. (b) Provides that the grievance must cite each provision of this subchapter alleged to have been violated during the plan's development and must describe each act that allegedly violated this subchapter. (c) Requires the commission to review a grievance to determine if the plan is being developed in compliance with this subchapter and authorizes the commission to dismiss the grievance if it finds that the grievance has no merit. Requires the commission to hold a public hearing in accordance with Chapter 551, Government Code (Open Meetings), if it finds that the grievance has merit. Requires the commission to take testimony from each plan participant and the individual filing the grievance. Requires the commission to vote, at the conclusion of the testimony, on whether to approve or dismiss the grievance or to schedule a public hearing by the 30th day after the conclusion of the initial hearing and to vote whether to approve or dismiss the grievance. (d) Requires the commission to instruct the plan participant(s) to amend the plan in compliance with this subchapter, if the grievance is approved. Prohibits the plan participant from submitting an application for a federal permit until the commission is satisfied that its instructions to amend the plan have been met. (e) Prohibits a plan participant in a plan that is the subject of a filed grievance from submitting an application for a federal permit before the commission has dismissed the grievance or the commission has determined that the recommended amendments to the plan have been made, if the commission approves the grievance. (f) Prohibits an individual who files a grievance from filing a subsequent grievance. Provides that if an individual files a grievance, no other member of the citizens advisory committee for the same plan may file a subsequent grievance. SECTION 4. Repealer: Section 83.006, Parks and Wildlife Code (Regional Plans for Endangered Species Protection). SECTION 5.(a) Makes application of this Act prospective, except as provided by Subsection (b) of this section. (b) Provides that Sections 83.018(a) and (b), Parks and Wildlife Code, as added by this Act, apply to the acquisition of land by a regional habitat conservation plan for which a federal permit was issued before September 1, 1999, regardless of the date that the application was submitted. SECTION 6. Effective date: September 1, 1999. SECTION 7. Emergency clause. COMPARISON OF ORIGINAL SUBSTITUTE SECTION 2. Deletes language requiring the Parks and Wildlife Commission (commission) to approve any conservation agreement between the state and the United States Department of the Interior. SECTION 3. Sec. 83.013. Deletes language to make a conforming change with respect to the deletion of Subsection 83.015(e) in its entirety. Deletes Subsection (f) which authorized 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. Deleted Subsection (f) which also provided 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, and authorized participants to convert the regional habitat conservation plan into a habitat conservation plan. Deletes Subsection (g) which authorized 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. Deletes Subsection (h) which required 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. Deletes language prohibiting 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. Deletes language requiring 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. Deletes Subsection(e) which required 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. Deleted Subsection (e) which also provided that the commission concur on the calculation of harm used in the plan, as well as size and configuration of habitat preserves. Sec. 83.017. Deletes Subsection (d) which required that notice pursuant to Subsection (c) be mailed no 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. Deletes Subsection (d), which required 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. Deleted Subsection (d), which also provided that acquisition of habitat preserves must be completed by September 1, 2001, and required 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. Deleted Subsection (d), which prohibited 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, and provided 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. Furthermore, the deleted subsection required 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. The subsection also required that upon removal of the property as such, plan participants cease describing, in any fashion, the property as such. Deletes language to make a conforming change with respect to the deletion of Subsection 83.018(d) in its entirety. Sec. 83.020. Authorizes an individual who is appointed to a citizens advisory committee under Section 83.016(b), to file a grievance with the commission if the individual believes that the regional habitat conservation plan is being developed in violation of this subchapter. Provides that the individual filing the grievance must have been a member of the citizens advisory committee for the plan named in the grievance. Provides that the grievance must cite each provision of this subchapter alleged to have been violated during the plan's development and must describe each act that allegedly violated this subchapter. Requires the commission to review a grievance to determine if the plan is being developed in compliance with this subchapter and authorizes the commission to dismiss the grievance if it finds that the grievance has no merit. Requires the commission to hold a public hearing in accordance with Chapter 551, Government Code (Open Meetings), if it finds that the grievance has merit. Requires the commission to take testimony from each plan participant and the individual filing the grievance. Requires the commission to vote, at the conclusion of the testimony, on whether to approve or dismiss the grievance or to schedule a public hearing by the 30th day after the conclusion of the initial hearing and to vote whether to approve or dismiss the grievance. Requires the commission to instruct the plan participant(s) to amend the plan in compliance with this subchapter, if the grievance is approved. Prohibits the plan participant from submitting an application for a federal permit until the commission is satisfied that its instructions to amend the plan have been met. Prohibits a plan participant in a plan that is the subject of a filed grievance from submitting an application for a federal permit before the commission has dismissed the grievance or the commission has determined that the recommended amendments to the plan have been made, if the commission approves the grievance. Prohibits an individual who files a grievance from filing a subsequent grievance. Provides that if an individual files a grievance, no other member of the citizens advisory committee for the same plan may file a subsequent grievance. SECTION 5. Makes application of this Act prospective, except as provided by Subsection (b) of this section. Provides that Sections 83.018(a) and (b), Parks and Wildlife Code, as added by this Act, apply to the acquisition of land by a regional habitat conservation plan for which a federal permit was issued before September 1, 1999, regardless of the date that the application was submitted. SECTION 6. Provides that this Act takes effect September 1, 1999. Deletes emergency clause. SECTION 7. Adds this section to include an emergency clause.