By: Huffman, Hegar S.B. No. 656
(In the Senate - Filed March 8, 2011; March 16, 2011, read
first time and referred to Committee on Government Organization;
March 31, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; March 31, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 656 By: Hegar
A BILL TO BE ENTITLED
AN ACT
relating to the abolition of the Coastal Coordination Council and
the transfer of its functions to the General Land Office.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (g), Section 201.026, Agriculture
Code, is amended to read as follows:
(g) In an area that the state board identifies as having or
having the potential to develop agricultural or silvicultural
nonpoint source water quality problems or an area within the
"coastal zone" designated by the commissioner of the General Land
Office [Coastal Coordination Council], the state board shall
establish a water quality management plan certification program
that provides, through local soil and water conservation districts,
for the development, supervision, and monitoring of individual
water quality management plans for agricultural and silvicultural
lands. Each plan must be developed, maintained, and implemented
under rules and criteria adopted by the state board and comply with
state water quality standards established by the Texas Commission
on Environmental Quality. The state board shall certify a plan that
satisfies the state board's rules and criteria and complies with
state water quality standards established by the Texas Commission
on Environmental Quality under the commission's exclusive
authority to set water quality standards for all water in the state.
SECTION 2. Section 33.004, Natural Resources Code, is
amended by adding Subdivision (2-a) to read as follows:
(2-a) "Committee" means the Coastal Coordination
Advisory Committee.
SECTION 3. Section 33.051, Natural Resources Code, is
amended to read as follows:
Sec. 33.051. GENERAL DUTY. The board, the commissioner
[council], the land office, and the network shall perform the
duties provided in this subchapter.
SECTION 4. Subsection (a), Section 33.052, Natural
Resources Code, is amended to read as follows:
(a) The commissioner shall develop a continuing
comprehensive coastal management program pursuant to the policies
stated in Section 33.202 [of this code. The program is not
effective until approved by a majority of the council under Section
33.204 of this code].
SECTION 5. Subsection (b), Section 33.052, Natural
Resources Code, as amended by Chapters 165 (S.B. 971) and 416 (H.B.
3226), Acts of the 74th Legislature, Regular Session, 1995, is
reenacted and amended to read as follows:
(b) In developing the program, the land office shall act as
the lead agency to coordinate and implement a comprehensive coastal
management program [develop a long-term plan] for the management of
uses affecting coastal natural resource areas, in cooperation with
other state agencies that have duties relating to coastal matters[,
including those agencies represented on the council]. The program
shall implement the policies stated in Section 33.202 [of this
code] and shall include the elements listed in Section 33.053 [of
this code].
SECTION 6. Subsection (e), Section 33.052, Natural
Resources Code, is amended to read as follows:
(e) This section does not add to or subtract from the duties
and responsibilities of a state agency other than the land office,
the commissioner [council], and the board.
SECTION 7. Section 33.055, Natural Resources Code, is
amended to read as follows:
Sec. 33.055. PUBLIC HEARINGS TO CONSIDER COASTAL MANAGEMENT
PROGRAM. In developing, reviewing, or amending the coastal
management program, after due notice to affected persons and the
public generally, the commissioner [and the council] shall hold or
have held public hearings as the commissioner determines [and the
council determine] to be appropriate.
SECTION 8. Subsections (a), (e), (f), and (g), Section
33.204, Natural Resources Code, are amended to read as follows:
(a) The commissioner [council] by rule shall adopt goals and
policies of the coastal management program. A goal or policy may
not require an agency or subdivision to perform an action that would
exceed the constitutional or statutory authority of the agency or
subdivision to which the goal or policy applies.
(e) In conducting consistency reviews under Section 33.205
[of this code], the commissioner [council] shall receive and
consider the oral or written testimony of any person regarding the
coastal management program as the testimony relates to the agency
or subdivision action or federal agency action or activity or outer
continental shelf plan under review. The commissioner [council]
may reasonably limit the length and format of the testimony and the
time at which it will be received. Notice of the period during
which the testimony will be received shall be published in the Texas
Register and in a newspaper of general circulation in each county
directly affected by the matter under review before the
commencement of that period. The commissioner [council] shall
consider only the record before the agency or subdivision involved
in the matter under review, the agency's or subdivision's findings,
applicable laws and rules, any additional information provided by
that agency or subdivision, and public testimony under this
subsection, provided that if the agency or subdivision did not hold
a hearing, make a record, or make findings, the commissioner
[council] may hold a hearing and make findings necessary to a
complete and thorough review.
(f) [The land office shall assist the council in carrying
out its duties. The council members may not receive compensation
for services but may receive reimbursement for actual and necessary
expenses.] The land office, in coordination with other agencies
and subdivisions, shall prepare an annual report on the
effectiveness of the coastal management program. [The land office
shall submit the report to the council for approval.] On or before
January 15 of each odd-numbered year, the land office shall send to
the legislature each of the previous two annual reports.
(g) The commissioner [council] may award grants to projects
that further the goals and policies of the coastal management
program [council]. The commissioner [council] shall establish the
procedures for making any determination related to awarding a
grant.
SECTION 9. Section 33.2041, Natural Resources Code, is
amended to read as follows:
Sec. 33.2041. COASTAL COORDINATION ADVISORY COMMITTEE
[COMPOSITION OF COUNCIL; TERMS]. (a) The commissioner by rule
shall establish the Coastal Coordination Advisory Committee to
advise the commissioner on matters related to the coastal
management program. The committee [council] shall consist of:
(1) a representative of each of the following entities
designated by the presiding officer of that entity [ex officio
members]:
(A) the land office [commissioner];
(B) the [presiding officer of the] Parks and
Wildlife Department [Commission or a member of the commission
designated by the presiding officer];
(C) the [presiding officer of the] Texas
Commission on Environmental Quality [Natural Resource Conservation
Commission or a member of the commission designated by the
presiding officer];
(D) [a member of] the Railroad Commission of
Texas [appointed by that commission];
(E) the [presiding officer of the] Texas Water
Development Board [or a member of the board designated by the
presiding officer];
(F) the [presiding officer of the] Texas
Department of Transportation [Commission or a member of the
commission designated by the presiding officer];
(G) [a member of] the State Soil and Water
Conservation Board [appointed by that board]; and
(H) the [director of the] Texas [A&M University]
Sea Grant College Program to serve as a nonvoting member; and
(2) the following members to be appointed by the
commissioner [governor with the advice and consent of the senate to
serve a two-year term]:
(A) a city or county elected official who resides
in the coastal area;
(B) an owner of a business located in the coastal
area who resides in the coastal area;
(C) a resident from the coastal area; and
(D) a representative of agriculture.
(b) The commissioner by rule shall establish the terms of
office for and duties of committee members [terms of the positions
on the council held by the city or county elected official who
resides in the coastal area and the resident from the coastal area
expire May 31 of each even-numbered year. The terms of the
positions on the council held by the owner of a business located in
the coastal area who resides in the coastal area and the
representative of agriculture expire May 31 of each odd-numbered
year].
(c) Chapter 2110, Government Code, does not apply to the
size, composition, or duration of the committee [Appointments to
the council shall be made without regard to the race, color,
disability, sex, religion, age, or national origin of the
appointees].
SECTION 10. The heading to Section 33.205, Natural
Resources Code, is amended to read as follows:
Sec. 33.205. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM;
COMMISSIONER [COUNCIL] REVIEW.
SECTION 11. Section 33.205, Natural Resources Code, is
amended by amending Subsections (b) through (h) and adding
Subsections (f-1) and (f-2) to read as follows:
(b) An agency or subdivision subject to the requirements of
Subsection (a) shall affirm that it has taken into account the goals
and policies of the coastal management program by issuing a written
determination that a proposed agency or subdivision action
described by Section 33.2051 or 33.2053 is consistent with the
program goals and policies.
(c) The commissioner [council] may [not] review a proposed
agency or subdivision action subject to the requirements of
Subsections (a) and (b) [of this section] for consistency with the
goals and policies of the coastal management program if [unless]:
(1) the consistency determination for the proposed
action was contested by:
(A) a member of the committee [council member] or
an agency that was a party in a formal hearing under Chapter 2001,
Government Code, or in an alternative dispute resolution process;
or
(B) another [a council member or other] person by
the filing of written comments with the agency before the action was
proposed if the proposed action is one for which a formal hearing
under Chapter 2001, Government Code, is not available; and
(2) a person described by Subdivision (1) [of this
subsection] files a request for referral alleging a significant
unresolved dispute regarding the proposed action's consistency
with the goals and policies of the coastal management program[; and
[(3) any three members of the council other than the
director of the Texas A&M University Sea Grant Program agree that
there is a significant unresolved dispute regarding the proposed
action's consistency with the goals and policies of the coastal
management program and the matter is placed on the agenda for a
council meeting].
(d) If consistency review thresholds are in effect under
Section 33.2052, the commissioner [council] may not review a
proposed action subject to the requirements of Subsections (a) and
(b) for consistency with the goals and policies of the coastal
management program unless the requirements of Subsection (c) are
satisfied and:
(1) if the proposed action is one for which a formal
hearing under Chapter 2001, Government Code, is available:
(A) the action exceeds the applicable thresholds
and the agency's consistency determination was contested in a
formal hearing or in an alternative dispute resolution process; or
(B) the action does not exceed the applicable
thresholds but may directly and adversely affect a critical area,
critical dune area, coastal park, wildlife management area or
preserve, or gulf beach and a state agency contested the agency's
consistency determination in a formal hearing; or
(2) if the proposed action is one for which a formal
hearing under Chapter 2001, Government Code, is not available to
contest the agency's determination, the action exceeds the
applicable thresholds.
(e) The commissioner [council] must consider and act on a
matter referred under Subsection (c) or (d) before the 26th day
after the date the agency or subdivision proposed the action. For
purposes of this section, an action subject to the contested case
provisions of Chapter 2001, Government Code, is proposed when
notice of a decision or order is issued under Section 2001.142,
Government Code.
(f) The commissioner [council] by rule shall establish a
process by which an applicant for a permit or other proposed action
described in Section 33.2053, or an agency or subdivision proposing
an action, may request and receive a preliminary consistency
review. The rules shall:
(1) create a permitting assistance group composed of
representatives of committee [council] member agencies and other
interested committee [council] members to coordinate the
preliminary reviews; and
(2) require that the following written information be
produced not later than the 45th day after the date of the request
for preliminary review:
(A) a statement from each agency or subdivision
required to permit or approve the project as to whether the agency
or subdivision anticipates approving or denying the application;
(B) if an agency or subdivision intends to deny
an application, the agency's or subdivision's explanation of the
grounds for denial and recommendations for resolving the grounds in
a way that would allow the application to be approved;
(C) if enough information is already available, a
preliminary finding as to whether the project is likely to be found
consistent with the goals and policies of the coastal management
program; and
(D) if the project is likely to be found
inconsistent with the goals and policies of the coastal management
program, an explanation and recommendation for resolving the
inconsistency in a way that would allow the project to be found
consistent.
(f-1) Not later than January 1, 2012, the commissioner shall
evaluate the functions, including any pending initiatives,
membership, and usefulness of the permitting assistance group
established under Subsection (f). The evaluation must include
input from all members of the permitting assistance group and the
committee. This subsection expires April 1, 2012.
(f-2) The commissioner may adopt rules as necessary to:
(1) restructure or abolish the permitting assistance
group;
(2) expand the functions of the permitting assistance
group; or
(3) add members to the permitting assistance group.
(g) The commissioner [council] by rule shall establish a
process by which an individual or small business may request and
receive assistance with filing applications for permits or other
proposed actions described by Section 33.2053. The rules shall
provide for:
(1) the coordination of preapplication assistance
through the permitting assistance group; and
(2) the provision of the following, by the permitting
assistance group, to an individual or a small business, on request:
(A) a list of the permits or other approvals
necessary for the project;
(B) a simple, understandable statement of all
permit requirements;
(C) a coordinated schedule for each agency's or
subdivision's decision on the action;
(D) a list of all the information the agencies or
subdivisions need to declare the applications for the permits or
other approvals administratively complete;
(E) assistance in completing the applications as
needed; and
(F) if enough information is already available, a
preliminary finding as to whether the project is likely to be found
consistent with the goals and policies of the coastal management
program.
(h) If an agency, subdivision, or applicant has received a
preliminary finding of consistency under Subsection (f)(2)(C) or
(g)(2)(F) and a request for referral was filed on that action under
Subsection (c)(2), the commissioner [council] may accept the
request for referral only if the agency or subdivision has
substantially changed the permit or proposed action since the
preliminary finding was issued.
SECTION 12. Subsection (e), Section 33.2051, Natural
Resources Code, is amended to read as follows:
(e) The commissioner [council] may not review a proposed
rule of the [Texas] Department of Agriculture.
SECTION 13. Section 33.2052, Natural Resources Code, is
amended to read as follows:
Sec. 33.2052. CERTIFICATION OF AGENCY RULES; AGENCY ACTIONS
CONSIDERED CONSISTENT. (a) The commissioner [council] by rule
shall establish and may modify a process by which an agency may
submit rules and rule amendments described by Section 33.2051 to
the commissioner [council] for review and certification for
consistency with the goals and policies of the coastal management
program.
(b) The process must provide that an agency may submit to
the commissioner [council] consistency review thresholds for the
agency's actions described in Section 33.2053. After the
commissioner [council] certifies that an agency's rules are
consistent and approves the agency's thresholds, the agency's
consistency determination under Section 33.205(b) for an action is
final and is not subject to referral and review, except as provided
by Section 33.205(d).
(c) The commissioner [council] by rule shall provide that
the commissioner [council] may revoke a [its] certification under
Subsection (b) if the commissioner [council] finds that an agency
has:
(1) implemented certified rules in a manner that
conflicts with the goals and policies of the coastal management
program; or
(2) amended certified rules in a manner inconsistent
with the goals and policies of the coastal management program.
SECTION 14. Subsections (j) and (k), Section 33.2053,
Natural Resources Code, are amended to read as follows:
(j) An action to renew, amend, or modify an existing permit,
certificate, lease, easement, approval, or other action is not an
action under this section if the action is taken under a rule that
the commissioner [council] has certified under Section 33.2052 and:
(1) for a wastewater discharge permit, if the action
is not a major permit modification that would:
(A) increase pollutant loads to coastal waters;
or
(B) result in relocation of an outfall to a
critical area;
(2) for solid, hazardous, or nonhazardous waste
permits, if the action is not a Class III modification under rules
of the Texas [Natural Resource Conservation] Commission on
Environmental Quality; or
(3) for any other action, if the action:
(A) only extends the period of the existing
authorization and does not authorize new or additional work or
activity; or
(B) is not directly relevant to Sections
33.205(a) and (b).
(k) The commissioner [council] shall establish a program
boundary to limit the geographic area in which the requirements of
Sections 33.205(a) and (b) apply. The boundary is the coastal
facility designation line as defined by Appendix 1 to 31 TAC Section
19.2 as that appendix existed on the effective date of this section,
as modified by Section 33.203(7). Except as provided by
Subsections (f)(8)-(10), this subchapter does not apply to an
agency action authorizing an activity outside the program boundary.
SECTION 15. Section 33.206, Natural Resources Code, is
amended to read as follows:
Sec. 33.206. [COUNCIL] ACTION BY COMMISSIONER OR ATTORNEY
GENERAL. (a) A proposed action is consistent with the goals and
policies of the coastal management program and approved by the
commissioner [council] unless[, on the affirmative vote of at least
two-thirds of the members of the council,] the commissioner
[council] determines the action to be inconsistent with the coastal
management program and protests the action.
(b) If the commissioner [council] protests the proposed
action, the commissioner [council] shall report the commissioner's
[its] findings on the matter to the agency or subdivision. The
report shall specify how the proposed action is inconsistent with
the goals and policies of the coastal management program and
include specific recommendations of the commissioner [council]
regarding how the proposed action may be modified or amended to make
it consistent with the program. Before the 21st day after the date
the agency or subdivision receives the report, the agency or
subdivision shall review the findings and recommendations and
determine whether to modify or amend the proposed action to make it
consistent with the goals and policies of the coastal management
program and shall notify the commissioner [council] of its
decision.
(c) If an agency or subdivision does not modify or amend a
proposed action to be consistent with the goals and policies of the
coastal management program, the commissioner [council] shall
request the attorney general to issue an opinion on the consistency
of the proposed action with the coastal management program. The
agency or subdivision is stayed from taking the proposed action
until the attorney general issues the opinion. The attorney
general shall issue an opinion before the 26th day after the date
the commissioner [council] requests the opinion.
(d) The commissioner [council] shall adopt guidance and
procedural rules for the review of federal actions, activities, and
outer continental shelf plans that incorporate the provisions of
federal regulations governing those reviews. The guidance and
rules shall provide that the commissioner [chair] or any three
committee members may request additional information from a federal
agency or additional time for review as provided by the federal
regulations.
(e) The commissioner [council] shall review any [federal]
action, activity, or outer continental shelf plan that any three
committee members [of the council] agree presents a significant
unresolved issue regarding consistency with the goals and policies
of the coastal management program [and place the matter on the
agenda of a meeting of the council for review].
(f) [If an activity requiring an agency or subdivision
action described by Section 33.2053 that falls below thresholds in
effect under Section 33.2052 also requires an equivalent federal
permit or license, the council may only determine the agency or
subdivision action's consistency.] If an activity requiring an
agency or subdivision action described by Section 33.2053 that
falls above thresholds in effect under Section 33.2052 also
requires an equivalent federal permit or license, the commissioner
[council] may determine the consistency of the agency or
subdivision action or the federal license or permit, but not both.
The determination regarding the consistency of an action made by
the commissioner [council] under this subsection constitutes the
state's determination regarding consistency of the equivalent
agency or subdivision action or federal action.
(g) Notwithstanding the other provisions of this
subchapter, the commissioner may not determine whether a proposed
action of the land office, the commissioner, or the board is
consistent with the goals and policies of the coastal management
program. The commissioner shall refer a request for a review of the
consistency of such an action to the attorney general not later than
the second day after the date the commissioner receives the
request. The attorney general shall determine whether the action
is consistent with the goals and policies of the coastal management
program in accordance with the applicable provisions of this
subchapter governing determinations by the commissioner. If the
attorney general determines the action to be inconsistent with the
goals and policies of the coastal management program, the attorney
general may protest the action in accordance with the provisions of
this subchapter governing protests by the commissioner. A protest
by the attorney general has the same effect as a protest by the
commissioner. The attorney general may adopt rules as necessary to
implement this subsection [If, after review, the council finds a
proposed federal agency action or activity or outer continental
shelf plan is inconsistent with the coastal management program, and
the federal agency does not modify the action, activity, or outer
continental shelf plan to achieve consistency with the program, the
governor, with the assistance of the chair of the council, may seek
mediation of the matter in accordance with federal law].
[(h) The council may not protest a proposed action by an
agency or subdivision pertaining to an application filed with that
agency or subdivision before the date the coastal management
program is adopted.]
SECTION 16. Section 33.207, Natural Resources Code, is
amended to read as follows:
Sec. 33.207. COMMISSIONER [COUNCIL] RECOMMENDATIONS. In
addition to the report required by Section 33.206, the commissioner
[council]:
(1) may periodically submit recommendations to an
agency or subdivision designed to encourage the agency or
subdivision to carry out its functions in a manner consistent with
the coastal management program, including recommendations for
methods to simplify governmental procedures and changes in
applicable rules or statutes; and
(2) shall report to the legislature on:
(A) recommended statutory changes needed to make
more effective and efficient use of public funds and provide for
more effective and efficient management of coastal natural resource
areas, including recommendations on methods to simplify
governmental procedures;
(B) agency or subdivision actions that are not
consistent with the coastal management program; and
(C) population growth of, infrastructure needs
of, and use of resources on the coast.
SECTION 17. Subsections (b) and (c), Section 33.208,
Natural Resources Code, are amended to read as follows:
(b) If the attorney general issues an opinion under Section
33.206(c) that a proposed agency or subdivision action is
inconsistent with the coastal management program and the agency or
subdivision fails to implement the commissioner's [council's]
recommendation regarding the action, the attorney general shall
file suit in a district court of Travis County to enforce this
subchapter. The court shall consider the attorney general's
opinion in determining whether the proposed action is consistent
with the coastal management program.
(c) Notwithstanding the request of an opinion from, or the
filing of suit by, the attorney general, the commissioner [council]
and the agency or subdivision may enter into a settlement agreement
with regard to the proposed agency or subdivision action. If the
commissioner [council] and the agency or subdivision enter into a
settlement agreement, the commissioner [council] may rescind the
commissioner's [its] request for an opinion from the attorney
general.
SECTION 18. Section 33.209, Natural Resources Code, is
amended to read as follows:
Sec. 33.209. PROHIBITION ON SPECIAL AREA MANAGEMENT PLANS.
The land office [council] may not develop or approve a special area
management plan, including a plan for an area designated under the
national estuary program.
SECTION 19. The following provisions of the Natural
Resources Code are repealed:
(1) Subdivision (13), Section 33.004;
(2) Subsection (c), Section 33.052;
(3) Subdivision (20), Section 33.203;
(4) Subsections (b), (c), and (d), Section 33.204;
(5) Section 33.2042;
(6) Section 33.2043;
(7) Section 33.2044;
(8) Section 33.2045;
(9) Subsection (g), Section 33.2053;
(10) Section 33.211; and
(11) Section 33.212.
SECTION 20. (a) Effective September 1, 2011, the Coastal
Coordination Council is abolished and the powers and duties of the
council are transferred to the General Land Office in accordance
with Chapter 33, Natural Resources Code, as amended by this Act.
(b) As soon as possible after the effective date of this
Act, the presiding officers of the appropriate entities shall
appoint the members of the Coastal Coordination Advisory Committee
in accordance with Section 33.2041, Natural Resources Code, as
amended by this Act.
(c) All rules of the Coastal Coordination Council are
continued in effect as rules of the General Land Office until
superseded by a rule of the land office. A certification issued by
the council is continued in effect as provided by the law in effect
immediately before the effective date of this Act. A complaint,
investigation, contested case, or other proceeding pending on the
effective date of this Act is continued without change in status
after the effective date of this Act. An activity conducted by the
council is considered to be an activity conducted by the land
office.
(d) A reference in another law or an administrative rule to
the Coastal Coordination Council means the General Land Office.
(e) On September 1, 2011, or as soon as is possible after
that date, the commissioner of the General Land Office shall adopt a
comprehensive plan to ensure the smooth transition of all programs
operated by the Coastal Coordination Council before September 1,
2011, from the council to the land office. During the transition,
the General Land Office shall consult with the National Oceanic and
Atmospheric Administration as necessary to ensure continued
compliance with federal requirements and to maintain federal
approval of the Texas Coastal Management Program.
(f) All money, records, property, and equipment in the
possession of the Coastal Coordination Council on September 1,
2012, shall be transferred to the possession of the General Land
Office on September 1, 2012, or as soon as possible after that date.
SECTION 21. This Act takes effect September 1, 2011.
* * * * *