NLM S.B. 1272 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1272 By: Wentworth Land & Resource Management 5/3/1999 Engrossed 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. S.B. 1272 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-NLM, S.B.1272 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, as designated by this Act, 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 that does not require the regulation of non-habitat preserve land, and the land to be used as a habitat preserve is owned by a plan participant or is subject to contract with private landowners. (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. This term does not include fire or building codes or restrictions on the withdrawal of groundwater. (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 or imposes restrictions on groundwater withdrawals. (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, as a condition for the issuance of a permit, approval, or service, require a person to pay a mitigation fee to a plan participant; set aside, lease, or convey land as habitat preserve; or pay a mitigation fee for land set aide or restricted from development under local, state, or federal law or regulation. 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, and serve 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) Requires the plan participants to appoint one additional landowner who owns land within the proposed habitat preserve system to the citizens advisory committee no later than the 90th day after the initial identification of the proposed preserve system for the regional habitat conservation plan. (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 requires completion of the acquisition 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.