CHAPTER 221. WETLAND MITIGATION
NATURAL RESOURCES CODE
TITLE 12. WETLANDS
CHAPTER 221. WETLAND MITIGATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 221.001. DEFINITIONS. In this chapter:
(1) "Buffer zone" means a strip of land adjoining a wetland
mitigation bank to protect the wetland habitat and wildlife
within the bank from the impact of an activity outside the zone.
The term includes a strip of land composed primarily of water or
a strip of land that includes a fence, wall, or screen of
vegetation.
(2) "Eligible political subdivision" means:
(A) a county with a population of 3.3 million or more or a
county adjacent to such a county; or
(B) a conservation and reclamation district:
(i) that is established under Section 59, Article XVI, Texas
Constitution;
(ii) the boundaries of which are within a county that has a
population of 3.3 million or more; and
(iii) that is authorized under other law to participate in a
program under this chapter.
(3) "Federal requirement" means a requirement of the federal
government contained in a statute, regulation, or guideline for
an eligible mitigation bank program or a wetland regulation
program.
(4) "Mitigation bank" means a parcel of land that has undergone
or is proposed to undergo a physical change necessary to create
or optimize the acreage or quality of wetland habitat on the
parcel expressly to provide a mitigation credit to offset an
adverse impact to wetland caused by an approved project located
elsewhere.
(5) "Mitigation credit" means a unit of measured area that
supports wetland habitat or wetland habitat value that did not
exist at the mitigation bank site before the mitigation bank was
developed.
(6) "Wetland" means land that:
(A) has a predominance of hydric soil;
(B) is inundated or saturated by surface or groundwater at a
frequency and duration sufficient to support a prevalence of
hydrophytic vegetation typically adapted for life in saturated
soil conditions; and
(C) under normal circumstances does support a prevalence of that
vegetation.
(7) "Wetland regulation program" means a program of the state, a
state agency, or an eligible political subdivision under which
the state, agency, or subdivision administers its own individual
or general permit program regulating the use of wetland.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997. Amended by Acts 2001, 77th Leg., ch. 669, Sec. 114, eff.
Sept. 1, 2001.
Sec. 221.002. USE OF MONEY. A state agency or an eligible
political subdivision may use any money to accomplish a purpose
of this chapter.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.003. COST OF MOVING OR CHANGING FACILITY. If a state
agency, eligible political subdivision, or nonprofit corporation,
in exercising a power under this chapter, makes it necessary to
move, raise, lower, reroute, or change the grade of or alter the
construction of a pipeline, highway, railroad, electric
transmission or distribution line, or telephone or telegraph
property or facility, the agency, subdivision, or corporation
must bear the sole expense of the action.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
SUBCHAPTER B. WETLAND MITIGATION BANKING AND CONTRACTS
Sec. 221.021. ACTIONS TO ESTABLISH OR MAINTAIN MITIGATION BANK.
(a) With the approval of the General Land Office, a state agency
or eligible political subdivision may take any necessary and
reasonable action to comply with a federal requirement to
establish or maintain a mitigation bank. An action under this
section may include:
(1) authorizing or making a continuing study of wetland areas
and wetland mitigation programs;
(2) consistent with federal requirements, engaging in a wetland
mitigation program and adopting and enforcing permanent land use
and control measures on land the agency or subdivision owns in a
mitigation bank;
(3) consulting with, providing information to, and entering into
an agreement with a federal agency to identify and publish
information about wetland areas;
(4) cooperating with a federal or state agency in connection
with a study or investigation regarding the adequacy of a local
measure with respect to a federal or state wetland program;
(5) improving the long-range management or use of wetland or a
wetland mitigation bank;
(6) purchasing, leasing, condemning, or otherwise acquiring
property inside or outside the eligible political subdivision
that is necessary for a wetland mitigation bank or buffer zone
and, as necessary, improving the land or other property as a
wetland mitigation bank, including any adjacent buffer zone, to
comply with a federal requirement;
(7) requesting or receiving aid from a federal or state agency
or an eligible political subdivision;
(8) purchasing, selling, or contracting to purchase or sell a
mitigation credit in a mitigation bank;
(9) incurring a liability or borrowing money on terms approved
by the governing body of the subdivision;
(10) acquiring, holding, using, selling, leasing, or disposing
of real or personal property, including a license, patent, right,
or interest, that is necessary, convenient, or useful for the
full exercise of a power under this chapter;
(11) contracting with any operator to use or operate any part of
a mitigation bank; and
(12) procuring any type of insurance and paying an insurance
premium in an amount the governing body of the eligible political
subdivision considers necessary or advisable.
(b) The power of eminent domain granted by this section does not
enable a state agency or eligible political subdivision to
acquire by condemnation an interest in land that is owned or used
by a public utility. In this subsection, "public utility" has the
meaning assigned by the Public Utility Regulatory Act of 1995
(Article 1446c-0, Vernon's Texas Civil Statutes).
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.022. OPTIONAL MITIGATION BANK PROVISIONS. A mitigation
bank project may include a provision for:
(1) a park;
(2) recreation;
(3) a scenic area; or
(4) flood control.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.023. MITIGATION BANK CONTRACTS; CONTRACT PAYMENTS. (a)
A state agency or eligible political subdivision may contract
with another state agency or eligible political subdivision to
pay jointly any part of the cost to acquire, design, construct,
improve, or maintain a wetland mitigation bank or a buffer zone.
(b) Payment of the cost of a project or a payment required to be
made under a contract may be made out of bond proceeds, taxes, or
any other money available for the payment.
(c) If a contract provides for payment over a term of years, an
eligible political subdivision may impose a tax in an amount
necessary to:
(1) create a sinking fund for the contract payments; and
(2) make the payments when due.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
SUBCHAPTER C. PROVISIONS FOR POLITICAL SUBDIVISIONS
Sec. 221.041. APPLICATION TO FEDERAL AGENCY. On behalf of an
eligible political subdivision that proposes to administer its
own individual or general wetland regulation program, the
governor may apply to the appropriate federal agency for program
approval.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.042. COMPLIANCE WITH FEDERAL PROGRAM. An eligible
political subdivision authorized to implement a wetland
mitigation program may comply with a program established by the
federal government with respect to the implementation of a
wetland regulation program or for the acquisition, ownership, or
operation of a wetland mitigation bank.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.043. COUNTY APPROVAL OF POLITICAL SUBDIVISION PROGRAM.
An eligible political subdivision may not institute a wetland
regulation program unless the commissioners court of each county
in which the eligible political subdivision lies approves the
program after conducting a public hearing.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.044. RULES FOR WETLAND DELINEATION. (a) An eligible
political subdivision authorized to implement a wetland
mitigation program may adopt and compile reasonably necessary
rules.
(b) An eligible political subdivision by rule may set standards
for delineating land as wetland for purposes of:
(1) this chapter; or
(2) a federal requirement.
(c) A rule under Subsection (b) may be adopted after
consultation with federal agencies, including the United States
Fish and Wildlife Service, the United States Environmental
Protection Agency, the United States Army Corps of Engineers, and
the Soil Conservation Service of the United States Department of
Agriculture.
(d) A standard for delineating wetland must comply with federal
requirements for delineating wetland.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.045. PERMIT. (a) An eligible political subdivision
authorized to implement a wetland mitigation program may issue a
permit that incorporates, and assures compliance with, an
applicable:
(1) requirement of this chapter; or
(2) federal requirement.
(b) A permit may be terminated or modified for cause, including:
(1) violation of a permit condition;
(2) obtaining a permit by misrepresentation or not fully
disclosing all relevant facts; or
(3) a change in a condition that requires temporarily or
permanently reducing or eliminating the permitted activity.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.046. MITIGATION BANK FINANCING. (a) A mitigation
project participant may issue a bond, note, or other obligation
to acquire land for, to pay any part of the cost of, or to
acquire, construct, improve, operate, or maintain a wetland
mitigation bank.
(b) The subdivision may issue a bond, note, or obligation:
(1) in one or more series; and
(2) payable from and secured by:
(A) a tax;
(B) an assessment;
(C) an impact fee;
(D) revenue;
(E) a grant or gift;
(F) a lease or contract; or
(G) a combination of resources listed in Paragraphs (A)-(F).
(c) In this section, "mitigation project participant" means an
eligible political subdivision that seeks to:
(1) implement a project the unavoidable result of which would
adversely affect wetland; and
(2) compensate for the loss of wetland acreage or wetland
habitat value through participation in a mitigation bank.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.
Sec. 221.047. BOND REQUIREMENTS. (a) A bond issued under
Section 221.046 is a negotiable instrument within the meaning and
for purposes of the Business & Commerce Code.
(b) The bond may be:
(1) issued registrable as to principal or as to both principal
and interest; or
(2) made redeemable before maturity.
(c) The bond may be:
(1) issued in the form, denominations, and manner and under the
terms provided by the order or resolution authorizing the
issuance of the bond; and
(2) sold in the manner, at the price, and under the terms
provided by the order or resolution authorizing the issuance of
the bond.
(d) The bond shall:
(1) be executed in accordance with the order or resolution
authorizing the issuance of the bond; and
(2) bear interest at the rate provided by the order or
resolution authorizing the issuance of the bond.
(e) The bond may bear interest and may be issued in accordance
with:
(1) Chapters 1201, 1204, and 1371, Government Code; or
(2) Subchapters A-C, Chapter 1207, Government Code.
(f) The bond may be additionally secured by a:
(1) mortgage or deed of trust on real property that is related
to the mitigation bank; or
(2) chattel mortgage, lien, or security interest on personal
property appurtenant to that real property.
(g) The eligible political subdivision may authorize the
execution of a trust indenture, mortgage, deed of trust, or other
encumbrance to evidence the indebtedness.
(h) The eligible political subdivision may pledge to the payment
of the bond any part of a grant, a donation, revenue, or income
received or to be received from the United States or any other
source.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 8.361,
eff. Sept. 1, 2001.
Sec. 221.048. BOND PROCEEDS. If the use authorized by the order
or resolution authorizing the issuance of a bond under Section
221.046, the bond proceeds may be used to:
(1) pay interest on the bond during or after the acquisition or
construction of an improvement project financed by the bond
issue;
(2) pay administrative and operation expenses;
(3) create a reserve fund for payment of the principal of and
interest on the bonds; or
(4) create any other fund.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 24.01(a), eff. Sept.
1, 1997.