CHAPTER 83. FEDERAL-STATE AGREEMENTS
PARKS AND WILDLIFE CODE
TITLE 5. WILDLIFE AND PLANT CONSERVATION
SUBTITLE E. WILDLIFE MANAGEMENT AREAS, SANCTUARIES, AND PRESERVES
CHAPTER 83. FEDERAL-STATE AGREEMENTS
SUBCHAPTER A. FEDERAL-STATE AGREEMENTS
Sec. 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, Sec. 1, eff. Sept. 1,
1975.
Sec. 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, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1993, 73rd Leg., ch. 679, Sec. 56, eff.
Sept. 1, 1993.
Sec. 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, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 2003, 78th Leg., ch. 536, Sec. 1, eff. June
20, 2003.
Sec. 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, Sec. 1, eff. Sept. 1,
1975.
Sec. 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, Sec. 2, eff. Sept. 1,
1999.
SUBCHAPTER B. HABITAT PROTECTION BY POLITICAL SUBDIVISIONS
Sec. 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, Sec. 3, eff. Sept. 1,
1999.
Sec. 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, Sec. 3, eff. Sept. 1,
1999.
Sec. 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 accept 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, Sec. 3, eff. Sept. 1,
1999.
Amended by:
Acts 2005, 79th Leg., Ch.
388, Sec. 1, eff. June 17, 2005.
Sec. 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, Sec. 3, eff. Sept. 1,
1999.
Sec. 83.015. BIOLOGICAL REVIEW; CRITERIA. (a) Except as
provided by Subsection (f), 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) Except as provided by Subsection (f), 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.
(e) For purposes of this section, "recovery criteria" means the
criteria developed under a recovery plan in accordance with the
federal act.
(f) After notice and hearing by the plan participants, the
following may be based partly on any recovery criteria applicable
to each endangered species to be protected under the plan:
(1) a regional habitat conservation plan, including any
mitigation fee; or
(2) the size of proposed habitat preserves.
Added by Acts 1999, 76th Leg., ch. 1268, Sec. 3, eff. Sept. 1,
1999.
Amended by:
Acts 2005, 79th Leg., Ch.
388, Sec. 2, eff. June 17, 2005.
Sec. 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, Sec. 3, eff. Sept. 1,
1999.
Sec. 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 plan participants'
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, Sec. 3, eff. Sept. 1,
1999.
Amended by:
Acts 2005, 79th Leg., Ch.
388, Sec. 3, eff. June 17, 2005.
Sec. 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) Except as provided by Subsection (d), 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 proposed
habitat preserve not later than four years after the issuance of
the federal permit or six years after the initial application for
the federal permit, whichever is later. Except as provided by
Subsection (e), acquisition of all habitat preserves designated
as proposed habitat preserves in the regional habitat
conservation plan must be completed not later than the sixth
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 expiration of the
applicable deadline.
(d) If plan participants have not designated a landowner's land
as proposed habitat preserve in a regional habitat conservation
plan before the date on which the federal permit is issued but
designate the land as proposed habitat preserve in a regional
habitat conservation plan on or after that date, plan
participants shall make an offer to the landowner based on fair
market value for the acquisition of fee simple or other interest
in the land not later than the fourth anniversary of the date on
which the land is identified or designated as proposed habitat
preserve.
(e) Plan participants must complete acquisition of land subject
to Subsection (d) as habitat preserves not later than the fifth
anniversary of the date on which the plan participants identified
or designated the land as proposed habitat preserves.
Added by Acts 1999, 76th Leg., ch. 1268, Sec. 3, eff. Sept. 1,
1999.
Amended by:
Acts 2005, 79th Leg., Ch.
388, Sec. 4, eff. June 17, 2005.
Sec. 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, Sec. 3, eff. Sept. 1,
1999.
Sec. 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.
(e) Repealed by Acts 2005, 79th Leg., Ch. 388, Sec. 6, eff. June
17, 2005.
(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, Sec. 3, eff. Sept. 1,
1999.
Amended by:
Acts 2005, 79th Leg., Ch.
388, Sec. 5, eff. June 17, 2005.
Acts 2005, 79th Leg., Ch.
388, Sec. 6, eff. June 17, 2005.