CHAPTER 83. FEDERAL-STATE AGREEMENTS

State Codes and Statutes

Statutes > Texas > Parks-and-wildlife-code > Title-5-wildlife-and-plant-conservation > 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.

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.

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.

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.

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.

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.

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.

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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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