PARKS AND WILDLIFE CODE
CHAPTER 83. FEDERAL-STATE AGREEMENTS
SUBCHAPTER A. FEDERAL-STATE AGREEMENTS
§ 83.001. FISH RESTORATION PROJECTS. The department
shall conduct and establish cooperative fish restoration projects
under an Act of Congress entitled "An Act to provide that the United
States shall aid the States in fish restoration and management
projects" (Public Law No. 681, 81st Congress). The department
shall comply with the act and rules and regulations promulgated
under the act by the secretary of the interior.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975.
§ 83.002. COMMERCIAL FISHERIES RESEARCH. (a) The
department shall conduct research in and develop commercial
fisheries under an Act of Congress entitled "Commercial Fisheries
Research and Development Act of 1964" (Title 16, Sections 779-779f,
U.S.C.A.). The department shall comply with the act and the rules
and regulations promulgated under the act by the secretary of the
interior.
(b) Funds received from the federal government and
appropriated by the state for research and development of
commercial fisheries shall be deposited in the state treasury to
the credit of the game, fish, and water safety account.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975.
Amended by Acts 1993, 73rd Leg., ch. 679, § 56, eff. Sept. 1,
1993.
§ 83.003. WILDLIFE-RESTORATION PROJECTS. The
department shall establish and conduct cooperative
wildlife-restoration projects under an Act of Congress entitled "An
Act to provide that the United States shall aid the States in
wildlife-restoration projects, and for other purposes" (Public Law
No. 415, 75th Congress). The department shall comply with the act
and rules and regulations promulgated under the act by the United
States secretary of the interior.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975.
Amended by Acts 2003, 78th Leg., ch. 536, § 1, eff. June 20,
2003.
§ 83.004. MIGRATORY GAME BIRD RESERVATIONS. (a) The
United States of America may acquire by purchase, gift, devise, or
lease areas of land or water in this state necessary for the
establishment of migratory bird reservations under an Act of
Congress entitled "An Act to more effectively meet the obligations
of the United States under the Migratory Bird Treaty with Great
Britain by lessening the dangers threatening migratory game birds
from drainage and other causes by the acquisition of areas of land
and of water to furnish in perpetuity reservations for the adequate
protection of such birds; and authorizing appropriations for the
establishment of such areas, their maintenance and improvement and
for other purposes."
(b) The state retains jurisdiction and authority over the
areas which are not incompatible with the administration,
maintenance, protection, and control of the areas by the United
States under the act.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975.
§ 83.005. CONSERVATION AGREEMENTS FOR PROTECTION OF
SPECIES. (a) Any conservation agreement between a political
subdivision of the state and the United States Department of the
Interior must be developed in consultation with the Parks and
Wildlife Department.
(b) In this section, "conservation agreement" includes an
agreement between the state or a political subdivision of the state
and the United States Department of the Interior under the federal
act that does not relate to a federal permit as defined by Section
83.011.
Added by Acts 1999, 76th Leg., ch. 1268, § 2, eff. Sept. 1, 1999.
SUBCHAPTER B. HABITAT PROTECTION BY POLITICAL SUBDIVISIONS
§ 83.011. DEFINITIONS. In this chapter:
(1) "Biological advisory team" means three or more
professional biologists retained to provide biological guidance to
plan participants.
(2) "Endangered species" means a species listed by the
United States Department of the Interior as endangered or
threatened under the federal act.
(3) "Federal act" means the federal Endangered Species
Act of 1973 (16 U.S.C. Section 1531 et seq.), as amended.
(4) "Federal permit" means a permit issued under
Section 7 or 10(a) of the federal act.
(5) "Governmental entity" means a political
subdivision of the state, including:
(A) a municipality; and
(B) a county.
(6) "Habitat conservation plan" means a plan or
program to protect endangered species by habitat preserves or other
protection strategies developed in order to obtain a federal
permit:
(A) that does not require the regulation of
non-habitat preserve land; and
(B) for which the land to be used as habitat
preserves, at the time of application for the federal permit:
(i) is owned by a plan participant; or
(ii) is subject to a contract agreed to by
each owner of land in the habitat preserve or proposed habitat
preserve providing that all or part of the owner's land be used or
managed as a habitat preserve.
(7) "Habitat preserve" means land set aside or managed
for the protection of endangered species under a federal permit.
(8) "Harm" means significant habitat modification or
degradation that, by significantly impairing essential behavioral
patterns, including breeding, feeding, sheltering, or migrating,
is the proximate cause of:
(A) the death of a member of an endangered
species; or
(B) the physical injury of a member of an
endangered species.
(9) "Land development standards" means rules or
ordinances regulating 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. The term
does not include fire or building codes or restrictions on the
withdrawal of groundwater.
(10) "Mitigation fee" means 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" means 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" means a plan
or program to protect endangered species by habitat preserves or
other protection strategies developed in order to obtain a federal
permit that requires the acquisition or regulation of land or
interests in land not owned by a plan participant at the time of
application for a federal permit.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.012. PURPOSE. The purpose of this subchapter is
to:
(1) establish 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 use the
authority under this subchapter to develop and implement habitat
conservation plans instead of regional habitat conservation plans;
(3) coordinate, to the greatest extent practicable,
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 land
containing endangered species or endangered species habitat
through plan participant actions; and
(5) require plan participants of existing regional
habitat conservation plans to comply with the requirements of this
subchapter so that existing regional habitat conservation plans
become habitat conservation plans as quickly as possible.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.013. AUTHORITY OF DEPARTMENT OR POLITICAL
SUBDIVISION. (a) The department or a political subdivision may
participate in the study and preparation for and creation of a
habitat conservation plan.
(b) Subject to this subchapter, the department or a
political subdivision may participate in the study and preparation
for and creation of a regional habitat conservation plan.
(c) Subject to this subchapter, a political subdivision,
including a municipality acting within its corporate limits or its
extraterritorial jurisdiction, in order to facilitate the creation
of a habitat preserve and the setting aside of land to protect a
species protected under a conservation agreement, may:
(1) purchase land, easements, or leases; and
(2) enter into an agreement with a landowner to
establish alternative land development standards for a tract of
land.
(d) A plan participant may 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 that adequate sources of funding exist to acquire all
land for habitat preserves within the time required by this
subchapter.
(e) A governmental entity may not implement a regional
habitat conservation plan or apply for a federal permit in
conjunction with a regional habitat conservation plan if:
(1) the federal act is repealed; or
(2) the endangered species that are subject to
conservation and protection under the federal permit cease to be
listed as endangered or threatened by the United States Department
of the Interior.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.014. LIMITATION OF POWERS. (a) A governmental
entity may not impose a regulation, rule, or ordinance related to
endangered species unless the regulation, rule, or ordinance is
necessary to implement a habitat conservation plan or regional
habitat conservation plan for which the governmental entity was
issued a federal permit. This subsection does not limit the
authority of a governmental entity to adopt a rule, regulation, or
ordinance restricting the withdrawal of groundwater.
(b) A governmental entity may not discriminate against a
permit application, permit approval, or the provision of utility
service for land that:
(1) is or has been designated as habitat preserve or
potential habitat preserve in a regional habitat conservation plan
or habitat conservation plan;
(2) is designated as critical habitat under the
federal act; or
(3) has endangered species or endangered species
habitat.
(c) A governmental entity may not deny or limit available
water or wastewater service to land in the service area of the
governmental entity that has been designated as habitat preserve or
potential habitat preserve in a regional habitat conservation plan
or in a habitat conservation plan. For purposes of this subsection,
a governmental entity may not remove land from its water or
wastewater utility service areas after the date established under
Section 83.018(b).
(d) A governmental entity may not, as a condition for the
issuance of a permit, approval, or service, require a person to:
(1) pay a mitigation fee to a plan participant;
(2) set aside, lease, or convey land as habitat
preserve; or
(3) pay a mitigation fee for land set aside or
restricted from development under local, state, or federal law or
regulation.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) A
regional habitat conservation plan, including any mitigation fee,
shall be based on the amount of harm to each endangered species to
be protected under the regional habitat conservation plan.
(b) The size of proposed habitat preserves shall be based
solely on the amount of harm to the endangered species to be
protected in the regional habitat conservation plan.
(c) The plan participants, together with the commission and
the landowner members of the citizens advisory committee, shall
appoint a biological advisory team. At least one member shall be
appointed by the commission and one member by the landowner members
of the citizens advisory committee. The member appointed by the
commission serves as presiding officer of the team. The team shall
assist in:
(1) the calculation of harm to the endangered species;
and
(2) the sizing and configuring of the habitat
preserves.
(d) Meetings of the biological advisory team are subject to
the open meetings law, Chapter 551, Government Code, and all work
product of the biological advisory team is subject to the open
records law, Chapter 552, Government Code.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.016. CITIZENS ADVISORY COMMITTEE. (a) The plan
participants shall appoint a citizens advisory committee to assist
in preparing the regional habitat conservation plan and the
application for a federal permit.
(b) At least four members or 33 percent of the citizens
advisory committee, whichever is greater in number, must own
undeveloped land or land in agricultural use in the regional
habitat conservation plan area. A landowner member may not be an
employee or elected official of a plan participant or any other
local, state, or federal governmental entity.
(c) Not later than the 90th day after the initial
identification of the proposed preserve system for the regional
habitat conservation plan, the plan participants shall appoint one
additional landowner, who owns land within the proposed habitat
preserve system, to the citizens advisory committee. The
additional landowner member must comply with Subsection (b).
(d) The commission shall appoint one representative to the
citizens advisory committee. The commission's representative is a
voting member of the committee.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.017. DEVELOPMENT OF REGIONAL HABITAT CONSERVATION
PLAN. (a) Meetings of the citizens advisory committee and
meetings of the plan participants regarding planning, development,
and implementation of the regional habitat conservation plan are
subject to the open meetings law, Chapter 551, Government Code.
(b) 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.
(c) Not later than the 60th day after the initial
identification of the proposed habitat preserve system for the
federal permit, the plan participants shall notify in writing each
owner of land identified by the plan participants as habitat
preserve or potential habitat preserve. The plan participants
shall use the county tax rolls to identify the owners of land
identified as habitat preserve or potential habitat preserve. The
written notice must include at least the following information:
(1) the tax identification and parcel numbers;
(2) the owner's name and address;
(3) an explanation of the designation or possible
designation of the tract as habitat preserve or potential habitat
preserve under the regional habitat conservation plan;
(4) identification of the citizens advisory committee
members, including telephone numbers, addresses, and the group that
each committee member represents;
(5) identification of employees or agents of plan
participants who can provide information about the regional habitat
conservation plan;
(6) the date of the next citizens advisory committee
meeting or plan participant meeting regarding the regional habitat
conservation plan; and
(7) a description of the status of the regional
habitat conservation plan.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.018. PRESERVE ACQUISITION. (a) The designation
of a tract of land as habitat preserve or potential habitat preserve
or the presence of endangered species or endangered species habitat
may not be considered in determining the fair market value of the
property for acquisition as a habitat preserve.
(b) 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 may not be
considered in determining the fair market value of the land for
acquisition as a habitat preserve.
(c) The plan participants shall make offers based on fair
market value to the landowners for the acquisition of fee simple or
other 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 federal permit, whichever is earlier.
Acquisition of all habitat preserves must be completed not later
than the fourth anniversary of the date on which the federal permit
was issued. A plan participant subject to this subsection who does
not meet an applicable deadline shall file an application to amend
the federal permit to remove the nonacquired habitat preserve land
from the regional habitat conservation plan as a habitat preserve
not later than the 60th day after the fourth anniversary of the date
on which the federal permit was issued.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.019. NOTICE AND HEARING REQUIREMENTS. (a) A plan
participant must 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) The plan participant, individually or through
interlocal contract, shall publish a notice, including a brief
description of the proposed action and the time and place of a
public hearing on the proposed action, not 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) A public hearing on the proposed action shall be held at
the time and place specified in the notice.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
§ 83.020. GRIEVANCE WITH DEVELOPMENT OF REGIONAL HABITAT
CONSERVATION PLAN. (a) An individual appointed to a citizens
advisory committee under Section 83.016(b) may file a grievance
with the commission regarding the development of a regional habitat
conservation plan under this subchapter if the individual believes
that the plan is being developed in violation of this subchapter.
The individual filing the grievance must have been a member of the
citizens advisory committee for the plan named in the grievance.
(b) A grievance must be filed under this section not later
than the 60th day after the date the plan is approved by the plan
participants. The grievance must cite each provision of this
subchapter alleged to have been violated during the development of
the plan and must describe each act alleged to have violated this
subchapter.
(c) The commission shall review a grievance filed under this
section to determine whether the plan is being developed in
compliance with this subchapter. If after reviewing the grievance
the commission finds that the grievance has no merit, the
commission may dismiss the grievance. If the commission finds that
the grievance does have merit, the commission must hold a public
hearing in accordance with Chapter 551, Government Code. The
commission shall take testimony from each plan participant and from
the individual filing the grievance. On conclusion of testimony,
the commission shall vote on whether to approve or dismiss the
grievance or to schedule a public hearing not later than the 30th
day after the conclusion of the initial public hearing and to vote
after the conclusion of that hearing whether to approve or dismiss
the grievance.
(d) If the commission approves the grievance, the
commission shall instruct the plan participant or participants to
amend the plan so that it will comply with this subchapter. The
plan participant may not submit an application for a federal permit
until the commission is satisfied that its instructions to amend
the plan to comply with this subchapter have been carried out.
(e) A plan participant in a plan that is the subject of a
grievance filed with the commission may not submit an application
for a federal permit before the commission:
(1) has dismissed the grievance; or
(2) if the commission approves the grievance, has
determined that the commission's recommended amendments to the plan
have been made.
(f) If an individual files a grievance under this section,
that individual may not file a subsequent grievance.
Added by Acts 1999, 76th Leg., ch. 1268, § 3, eff. Sept. 1, 1999.
