4 TAC §§215.1, 215.5, 215.9, 215.13, 215.17, 215.21, 215.25, 215.35
The Texas Forest Service (the forest service) adopts new
Chapter 215, §§215.1, 215.5, 215.9, 215.13, 215.17, 215.21, 215.25,
and 215.35, concerning the rules and requirements on determining whether a
timberland qualifies as forest zone where restricted-use appraisal applies
for purpose of ad valorem taxation. Sections 215.1, 215.5, 215.9, 215.13,
215.17, 215.21, 215.35, are adopted with changes to the proposed text as published
in the December 3, 1999, issue of the
Texas Register
(24 TexReg 10653). Section 215.25 is adopted without changes and will
not be republished.
Section 215.1 is changed to use the word "use" instead of "uses" in the
definition of management plan and add "a tree" as opposed to "tree" only in
the definition of basal area.
Section 215.5(a)(2) is changed to use the edge of the "public rights-of-way"
instead of the edge of the "road or public use area" as the starting point
of AMZ-public rights-of-way, to be consistent with the definition of AMZ-public
rights-of-way.
Section 215.5(b) is changed to add a new paragraph (5) to require that
qualified AMZ-special or unique area must be already under timber-use appraisal.
Section 215.5(b)(2) is changed to clarify that site recording with the Texas
Archeological Research Lab, the University of Texas at Austin, is due to its
status being the state official depository for archeological site records.
Section 215.9(4) is changed to clarify that the required management plan
must address the extent and frequency of harvesting restrictions and states
how the landowner provides at least three of the seven benefits for protection
of qualified threatened or endangered species in the CWHZ.
Section 215.13(6) is changed to clarify that the landowner must comply
with the management plan in order to qualify as a SMZ; §215.13(7) is
changed to add a word "residual" prior to the "basal area" to be more accurate.
Section 215.17(a)(1) is changed to add that the chief appraiser must seek
a determination letter from the director of the forest service as to the type,
size, and location of a zone, if any, in which the land is located.
Figure 4 TAC §215.17(a)(2) is changed to add the mailing address of
the forest service; also, another change is made so as to replace the number
scheme "XI" with the correct "V".
Section 215.17(a)(3) is changed to add that in case of a zone determination
request by a chief appraiser, each taxing unit in which the land is located
should be notified of such request and provided with appropriate instructions
for submitting information or evidence to the director of the forest service;
also, §215.17(a)(3)(B)(iv) is changed to use the address and phone number
of "the director or the director's representatives", instead of that of "the
director" only.
A change in Figure 4 TAC §215.17(a)(3)(A) is made so as to delete
"on the ground that the land is not located in a zone".
Major changes in Figure 4 TAC §215.17(a)(3)(B) include: 1) a requirement
that a management plan for each of the three types of zones (i.e., AMZ, CWHZ,
and SMZ) must be submitted by the applicant/landowner to the director of the
forest service no matter which specific issue is contested by the chief appraiser
or the taxing unit in which the applicant's land is located; 2) a clarification
that the required map for a 50-foot SMZ only need to show the centerline of
the stream; 3) the reason for requiring a topographic map for wider than 50-foot
SMZ is to use it as evidence to justify in part the need for wider buffers
for a SMZ; and 4) reformatting and/or rewording of the instructions so that
it can be more easily followed by the readers.
Section 215.17(c)(1) is changed to clarify that the taxing unit must seek
a determination letter from the director of the forest service as to the type,
size, and location of a zone, if any, in which the land is located; the deadline
for such a request is not changed but restated in a way to be more easily
followed.
Section 215.17(c)(3) is changed to add that in case of a challenge initiated
by a taxing unit, the chief appraiser shall be notified of such challenge
and provided with appropriate instructions for submitting information or evidence
to the director of the forest service; also §215.17(c)(3)(B)(ii) is changed
to indicate that the deadline for submitting information to the director is
defined in paragraph "(4)" instead of "(3)"; and §215.17(c)(3)(B)(iv)
is changed to use the address and phone number of the "the director or the
director's representatives" instead of "the director" only.
Section 215.21(b)(1) is changed to add that the director of the forest
service shall make the zone determination based on the information submitted
by the chief appraiser as well as those by the taxing unit(s) and the applicant/landowner.
Section 215.21(b)(3) is changed to add that a copy of the director's determination
letter shall be sent to the chief appraiser and the appraisal review board
in addition to each taxing unit in which the land is located.
Figure 4 TAC §215.21(a)(1) is changed to add a new option for the
director's determination that the request is not considered by the director.
Figure 4 TAC §215.35(b) is changed to add that a statement listing
the specialist's qualification must be attached with the application for AMZ-special
or unique area, to be consistent with the selection criteria; also the mailing
address of the forest service for submission of AMZ-special or unique area
application is added.
Section 215.35(b)(4) is changed to clarify that the historical/archeological
site recording is to be with the Texas Archeological Research Lab, the University
of Texas at Austin.
Section 215.35(e) is changed to replace "request" with "application".
The new sections are adopted to implement part of the Senate Bill 977,
enacted by the 76th Legislation, 1999, which authorizes a property tax incentive
program to reforest and conserve Texas forests. The new sections, as adopted,
serve to increase participation in establishing streamside forest management
zones along waterways to protect water quality, establish aesthetic forest
buffers adjacent to public roads and other public use area to enhance visual
quality, establish critical habitat to protect threatened and endangered species
of animals and plants, and protect areas that are special or unique due to
their natural beauty, topography, or historical significance. In addition
to providing simple and effective rules and procedures for landowners desiring
to receive local property tax incentive in exchange for accepting harvest
restrictions to provide environmental benefits to the general public, the
forest service believes that the new sections will help the chief appraisers
and the taxing units effectively and equitably process applications for restricted-use
timberland appraisal.
New §215.1 provides definitions to be used in this chapter. New §215.5
sets out the criteria that's used by the forest service to determine whether
a timberland qualifies as aesthetic management zone-public rights of way,
upon request from a chief appraiser or taxing unit, and whether a timberland
qualifies as designated aesthetic management zone-special or unique area.
New §215.9 sets out the criteria that's used by the forest service to
determine whether a timberland qualifies as critical wildlife habitat zone
upon request from a chief appraise or taxing unit. New §215.13 sets out
the criteria that's used by the forest service to determine whether a timberland
qualifies as streamside management zone upon request from a chief appraiser
or taxing unit. New §215.17 specifies filing requirements and procedures
relating to request for zone determination from a chief appraiser or taxing
unit. New §215.21 provides the director's action on the zone determination
requested from a chief appraiser or taxing unit. New §215.25 establishes
criteria on computing time for deadlines on filing, notices, and delivery
of information. New §215.35 provides the application requirements for
designation of timberland as aesthetic management zone-special or unique area.
Six comments were received including an oral one from three interested
parties. One written comment was received from Waller County Appraisal District.
One written comment was received from Senator Bill Ratliff. Joint comments
were filed by Kliewer, Breen, Garatoni, Patterson & Malone (or KBGPM),
Attorneys at Law, on behalf of Champion International (or Champion), Louisiana
Pacific (or LP), and Temple-Inland Corporations (or TI). A separate written
comment was received from the Champion. A separate written comment was filed
by LP. One oral comment was received from the forest industry group.
Waller County Appraisal District praised the clear and concise definitions
and pointed out two questions regarding the turnaround time and the confidence
level of the determination letter. First, they asked whether the deadline
for the applicant to submit applications to the chief appraiser is until the
approval of the appraisal records, just as that for the agricultural and open-space
land appraisal. They concerned that if that's the case, the chief appraisers
will not have enough time to make a zone determination request to the forest
service prior to approval of appraisal records. The forest service responded
that the deadline for submitting application by the landowner is clearly specified
in SB 977, §23.9804(e) and §23.9804(f), to be before May 1 or 15
days later if approved by the chief appraiser. This is explained to the Waller
County Appraisal District and they agreed that such a deadline would allow
the chief appraiser sufficient time to make a zone determination request to
the forest service and get the determination letter back in time to complete
the appraisal. Second, they asked whether the forest service, when making
a determination, adhere to the proposed rule or exercise some flexibility.
They indicated that adherence to the rule will greatly assist the chief appraiser.
The forest service responded that the forest service agrees and believes adherence
to the rules will be fair to all parties involved and helps increasing the
efficiency of the appraisal as well. No changes were made to the proposed
rule as a result of these comments.
Comments from the KBGPM on behalf of Champion, LP, and TI relate to deadline
for submission of evidence(s) by the chief appraiser, management plan, the
deadline for making zone determination request by chief appraiser, and the
deadline for information presentation by the applicant and each taxing unit.
First, they argued that allowing the chief appraiser continue to submit evidence(s)
subsequent to initial request does not give the landowner an opportunity to
respond to those evidence(s). They suggested eliminating from §215.17(b)
those provisions allowing the chief appraiser to submit evidence(s) subsequent
to initial request. A same comment was received from Champion separately.
The forest service agrees with the comment and deleted those provisions allowing
the chief appraiser to submit evidence(s) subsequent to initial request.
Second, they commented that the intent of the rule may be to require compliance
with the management plan to qualify a land as a zone, but the wordings of
the rule - a management plan must contain a statement that the landowner must
comply with the plan, in fact only requires that "the plan state that it is
mandatory"; it "does not require compliance with the plan". They suggested
substituting with the languages similar to "the landowner must comply with
the parts of the management plan that relates to the zone in order to qualify
a land as a zone". A similar comment was received from LP separately. The
forest service agrees with this comment and substituted with languages similar
to that as suggested in §§215.5(a)(3), 215.5(b)(4)(B), 215.9(5),
and 215.13(6).
Third, they argued that the deadline regarding the zone determination request
by the chief appraiser, in §215.17(a)(1), and the information presentation
by the landowner/applicant and each taxing unit, in §215.17(b)(2), as
proposed "not later than 30 days after the date of receipt prior to April
1 and 15 days after the date of receipt after April 1..." omits a deadline
if the date of receipt is April 1 and creates the unusual situation of giving
a party until April 30 if receipt is on March 31 but only until April 16 if
receipt is two days later. They suggested stating the deadline as "April 30
or 15 days after date of receipt of..., whichever is later". A similar comment
was received from LP separately. The forest service agrees with the problem
about the omission of the date of receipt being April 1 and modified the rule
to include this date. However, using "April 30 or 15 days after the date of
receipt of..., whichever is later" for a zone determination request by the
chief appraiser creates a problem that did not exist in the proposed rule.
First, even if an application is filed early, for example, in February, the
chief appraiser may wait until April 30 to make a request to the forest service.
This will push the process close to the deadline of making a zone determination,
an already tight schedule, leaving a short time for the forest service to
process the request even if the application is filed very early which could
have been processed early to relieve the time constraints. Second, using "April
30 or 15 days after the date of receipt of..., whichever is later" as deadline
for information presentation by the applicant or each taxing unit will not
allow the forest service to make any determination prior to April 30 even
if a request was made very early, for example, in February. This is because
the forest service can't make a determination as long as the time (at least
until April 30, as the commenter suggested) for submitting information by
the applicant or each taxing unit does not expire. Again, this also creates
the potential problem of piling-up of cases close to the deadline of making
a determination, an already tight time schedule, even if the request is filed
early. Third, the unusual situation where a party has until April 30 if receipt
is on March 31 or but only until April 16 if receipt is two days later may
not be avoidable whenever a cutoff date is involved. The deadline as proposed
encourages the chief appraiser to make a request early when the application
is filed early; and it gives longer time (30 days vs. 15 days) to the applicants
and each taxing unit to prepare and present information if both the application
and the zone determination request were filed early. The forest service decided
among the alternatives that the original deadline as proposed is kept unchanged
except it's reworded for easy understanding.
Senator Bill Ratliff commented that restricted harvesting itself may not
result in habitat protection, the landowner must provide at least three of
the seven enumerated benefits in addition to restricted harvesting to qualify
for special appraisal. A similar comment was cited from LP. The forest service
agrees with this comment and modified the rule to clarify that the landowner
must restrict harvest in the zone and provides three of the seven enumerated
benefits to qualify. Senator Ratliff has also commented in favor of requiring
a management plan and conservation agreement documentation establishing a
habitat protection zone to provide further protections against "sham" CWHZ.
One major comment from LP objected to marking boundaries of SMZ's if such
boundaries are not self evident. They stated the Digital Orthographic Quadrangle
(or DOQ's) "show quite clearly the boundaries of SMZ's and acreage assessments
can be made from them". In addition, the commenter argued that DOQ's are more
cost effective than paint or signs marking and is "readily available to the
appraisal districts as well as the Texas Forest Service". The forest service
first clarify that the condition for requiring a paint or sign marking is
that if the boundaries are not self-evident and not at a uniform width for
a SMZ. Thus, even if the boundaries are not self evident, as long as the SMZ
is at uniform width, whether it is the minimum 50-foot width or wider than
that, no marking is needed. When a SMZ has a variable width, it not only makes
it difficult for the chief appraiser to verify/assess the intended width if
he/she chooses to, but also makes it difficult to compute the acreage. Furthermore,
DOQ's may not be sufficient in accurately delineating the boundaries for many
cases if not all cases; so far it's not available to some of the forest service
offices in East Texas. The forest service decided not to change the proposed
rule regarding marking.
LP also commented that the average 50 square feet per acre of basal area
should add a word " residual" before "basal area" to be consistent with other
parts of the rule. The forest service agrees with this comment and changed
the rule as suggested. The 50 square feet per acre of basal area is a measurement
of trees after harvests, thus adding the word "residual" makes the requirement
more accurate. Other comments from LP mainly relate to grammar or typing error.
One of these comments is a correction of the unit error in the definition
of basal area where "4 1/2 feet" should be used instead of "4 1/2 inch". The
forest service agrees with this comment and corrected it as suggested.
One oral comment was received from the forest product industry group regarding
adoption of site recording for designation of AMZ-special or unique area in §215.5(b)(2).
They orally objected to the requirement that historical/archeological area
must be recorded with the Texas Archeological Research Lab (or TARL), the
University of Texas at Austin, to qualify as AMZ-special or unique area. They
perceived such a requirement may be beyond the legal authority of the forest
service and concerns that site recording may have potential detriment on landowner's
private property rights and imposes additional costs on landowners.
The forest service disagrees with the commenter.
Senate Bill 977, §23.9801(1)(B) specifically provides the forest service
with the legal authority to designate qualified timberland as AMZ-special
or unique area due to the area's natural beauty, topography, or historical
significance. The forest service believes that site recording with TARL as
one requirement for qualifying as AMZ-special or unique area under the historical
significance category is reasonable. The reason for requiring such a recording
is that a historical/archeological site significant for receiving a special
appraisal due to its unique or special attributes should be on record and
the recording is important to the archeologist community who oversees the
preservation and conservation of culture resources in Texas. A historical/archeological
area in a timberland should be formally listed with the state official archeological
site record depository in order to qualify for property tax incentive as provided
by the restricted-use timberland appraisal. The Texas Historical Commissions
(or THC) is the state agency charged with historic preservation, however,
TARL is the one that assigns the official state site numbers (or site trinomials)
and jointly with THC maintains a historical site records database. Furthermore,
site recording with TARL does not affect landowner's private property rights.
Even if a historical/archeological site in a timberland is listed with the
TARL, the site is owned by a landowner and he/she/it can do as he/she/it wishes
with his/her/its property. Also, access to recorded information is restricted
under law. In addition, there will not be cost in recording site with TARL
other than the time and effort spent in filling out the required forms and
associated supporting documents. Site recording involves a 4-page "the State
of Texas Archeological Site Data Form", a 2-page sketch of map and features
and a Key Site Card. An easy-to-follow instruction for the general public
who is outside of the archeological field is published by the Texas Historic
Commission for the 6-page form. "Many archeologists, both professional and
avocational, can complete the State of Texas Site Data Form thoroughly and
accurately with no instructions at all", according to the instruction. The
qualified specialist who recommends the site and the local extension agent
can help reduce the burden of filling out form/site recording, thus making
it more cost-effective and efficient for landowners. In view of these justifications,
the forest service decided to still require site recording for AMZ-special
or unique area under historical significance category.
The new sections are adopted under Tax Code (the Code), §23.9801(1)(B),
which provides the forest service with the authority to designate qualified
timberland as aesthetic management zone-special or unique area; the Code, §23.9806(a),
which authorizes the forest service to issue forest zone determination letter
upon request from the chief appraiser; the Code, §23.9806(e), which authorizes
the forest service to adopt rules to determine the forest zones; and the Code, §41.03(b),
which provides the forest service with the authority to issue forest zone
determination letter upon request from a taxing unit.
§215.1. Definitions of Terms.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
AMZ - - Aesthetic management zone, a timber land on which
timber harvesting is restricted for aesthetic or conservation purposes, including:
(A)
maintaining standing timber adjacent to public rights-of-way,
including highways, roads and public use areas such as public park, school,
lake, cemetery, church, also referred to as "AMZ-public rights-of-way"; and
(B)
preserving an area in a forest, as defined by Natural
Resources Code, §152.003, that is designated by the director of the Texas
Forest Service as special or unique because of the area's natural beauty,
topography, or historical significance, also referred to as "AMZ-special or
unique area".
(2)
CWHZ - - Critical wildlife habitat zone, a timber
land on which the landowner restricts timber harvesting so as to provide at
least three of the following benefits for the protection of an animal or plant
that is listed as endangered or threatened under the Endangered Species Act
of 1973 (16 U.S.C. §1531
et seq.
) and
its subsequent amendments or as endangered under Parks and Wildlife Code, §68.002:
(A)
habitat control;
(B)
erosion control;
(C)
predator control;
(D)
providing supplemental supplies of water;
(E)
providing supplemental supplies of food;
(F)
providing shelters; and
(G)
making of census counts to determine population.
(3)
SMZ - - Streamside management zone, a timber
land on which timber harvesting is restricted in accordance with a management
plan to:
(A)
protect water quality; or
(B)
preserve a waterway, including intermittent and perennial
streams, river, lake, slough, pond, creek, reservoir, watershed, or wetland
(ephemeral streams are excluded).
(4)
Ephemeral stream - - A stream or drain that
flows only during and for short periods following precipitation and flows
in low areas that may or may not have a well-defined channel.
(5)
Intermittent stream - - A stream that flows only
during wet periods of the year (or 30-90% of the time) and flows in a continuous,
well-defined channel.
(6)
Perennial stream - - A stream that flows throughout
a majority of the year (or greater than 90% of the time) and flows in a well-defined
channel.
(7)
Forest zone - - An AMZ, CWHZ, or SMZ, also referred
to as "zone".
(8)
Management plan - - A written plan or a collection
of written directives governing management of an applicant's timberland that
the landowner has developed, written, and implemented, with or without professional
assistance. The plan must use the forestry best management practice consistent
with the agricultural and silvicultural nonpoint source pollution management
program administered by the State Soil and Water Conservation Board under
Agriculture Code, §201.126, identifying specific management practice,
including restrictions on harvest, for each of the types of zones included
in the plan.
(9)
Director - - The director of the Texas Forest Service.
(10)
Public right-of-way - - A United States or state
highway, a county road, a farm-to-market road, other public maintained roads,
and public use areas such as public park, school, lake, cemetery, and church.
(11)
Basal area - - The cross-sectional area of a tree,
in square feet, measured at 4 1/2 feet above the ground.
§215.5. The Criteria for Determining Aesthetic Management Zone upon Request from a Chief Appraiser or Taxing Unit.
(a)
The criteria that Texas Forest Service uses in determining
AMZ-public rights-of-way upon request from a chief appraiser or taxing unit
is set out as follows.
(1)
AMZ must be a band of standing trees at least ten years
old or 35 feet tall.
(2)
The width of the AMZ must be at least 100 feet but
within 200 feet in width from the edge of the public rights-of-way.
(3)
A management plan must be provided that addresses
harvest restriction to ensure the continued aesthetic value of the zone. The
landowner must comply with the parts of the management plan that relates to
the zone in order to qualify the land as AMZ-public rights-of-way.
(4)
Harvesting is restricted to the extent that an average
50 square feet per acre of residual basal area must be retained in trees evenly
distributed within AMZ.
(b)
The criteria that Texas Forest Service uses in determining
whether an application qualifies as a designation of AMZ-special or unique
area due to the area's natural beauty, topography, or historical significance
is set out as follows.
(1)
Qualified area possesses special or unique traits such
as:
(A)
archeological sites, including historic and pre-historic
sites (
e.g.
, Native American site, early
settlement sites);
(B)
rare geological formation (
e.g.
, waterfall or overlooks);
(C)
unique scenic beauty;
(D)
unique plants or animals communities (
e.g.
, old growth forests, pitcher plant bog);
(E)
other traits that suggest a special importance to society.
(2)
The historical/archeological area must be recorded
with the Texas Archeological Research Lab, the University of Texas at Austin,
state official depository for archeological site records, with a site number
assigned.
(3)
The area is recommended by a specialist whose findings
prove the area has features that are unique or special and worthy of preservation.
The specialist must be qualified because of their area of expertise to identify
area in need of preservation or conservation. Minimum qualification of the
specialist include an advanced degree in the area of claimed expertise, experiences
in identifying and preserving sites in the area of expertise, and/or current
employment by an organization engaged in identifying and preserving such sites.
A letter stating the specialists' qualifications and experience must be submitted
with the application.
(4)
Compliance with the following harvest restriction
provisions is required:
(A)
Harvesting may be totally restricted if necessary to protect
the special features that make this site unique.
(B)
A management plan developed with inputs from the appropriate
specialists must be provided addressing restricted timber harvesting as to
the extent and frequency; the landowner must comply with the parts of the
management plan that relates to the zone in order to qualify the land as a
AMZ-special or unique area.
(C)
If harvesting is permitted, an average 50 square feet
per acre of residual basal area must be retained in trees evenly distributed
within the AMZ.
(D)
Special or unique area may be regenerated using different
methods, however, the specialist assisting with the management plan must address
how the special features will not be adversely affected.
(5)
The timberland is under timber-use appraisal
(or productivity appraisal), as defined in Tax Code, Title 1 Property Tax,
Subchapter E. Land qualifies for timber-use appraisal if it is currently and
actively devoted principally to production of timber or forest products to
the degree of intensity generally accepted in the area with intent to produce
income and has been devoted principally to production of timber or forest
products or to agricultural use that would qualify the land for agricultural
use appraisal under Tax Code, Title 1 Property Tax, Subchapter C, or open-space
land appraisal under Tax Code, Title 1 Property Tax, Subchapter D, for five
of the preceding seven years.
§215.9. The Criteria for Determining Critical Wildlife Habitat Zone upon Request from a Chief Appraiser or Taxing Unit.
The criteria that the Texas Forest Service uses in determining CWHZ
upon request from a chief appraiser or taxing unit is set out as follows.
(1)
The presence of qualified endangered or threatened animal
or plant, as defined in paragraph (2) of this section, in the zone and the
existence of a plan to protect it must be evidenced by a memorandum of understanding,
conservation agreements, or other documentation pertaining to the protection
of such animal or plant life with a federal, state, or private organization
with recognized responsibility for protecting this species.
(2)
The animal or plant is listed as endangered or threatened
under the Endangered Species Act of 1973 (16 U.S.C. §1531
et seq.
) and its subsequent amendments, or as endangered under Parks
and Wildlife Code, §68.002, including:
(A)
bald eagle-
Haliaeetus leucocephalus
(B)
red-cockaded woodpecker-
Picoides
borealis
(C)
Houston toad-
Bufo houstonensis
(D)
Texas trailing phlox-
Phlox nivalis
ssp. Texensis
(E)
white bladderpod-
Lesquerella
pallida
(F)
Navasota ladies'-tresses-
Spiranthes
parksii
(3)
This list is subject to change. A current listing
is available from the Texas Parks and Wildlife Department.
(4)
A management plan developed with inputs from an endangered
species specialist that addresses federal and state critical habitat requirement
by species must be provided. The plan must address harvesting restrictions
and state how the landowner provides at least three of the following benefits:
(A)
habitat control;
(B)
erosion control;
(C)
predator control;
(D)
providing supplemental supplies of water;
(E)
providing supplemental supplies of food;
(F)
providing shelters; and
(H)
making of census counts to determine population.
(5)
The landowner must comply with the parts of
the management plan that relates to the zone in order to qualify the land
as a CWHZ.
§215.13. The Criteria for Determining Streamside Management Zones upon Request from a Chief Appraiser or Taxing Unit.
The criteria that the Texas Forest Service uses in determining SMZ
upon request from a chief appraiser or taxing unit is set out as follows.
(1)
SMZ includes forested buffers adjacent to streams or bodies
of water, including intermittent and perennial streams, river, lake, slough,
pond, creek, reservoir, watershed, or wetland (ephemeral streams are excluded).
(2)
The minimum width of an SMZ on each side and above
the head of streams or adjacent to bodies of water should be 50 feet from
each bank (however, with sufficient evidence shown, the width can be extended
to no more than 200 feet depending on the slope, soil, cover type, and proximity
to municipal water supply).
(3)
Total SMZ width includes average stream channel width
plus buffer width.
(4)
If the SMZ's boundaries are not self-evident ( e.g.
, clear-cut and young plantation may indicate
a self-evident boundary) and not at a uniform width, the boundaries must be
marked with paint or signs. Boundary marks can be no further than 100 feet
apart.
(5)
Newly established SMZ's must have trees average 10
years of age or more with a minimum of 300 well-spaced trees per acre, or
an average 50 square feet per acre of basal area in trees evenly distributed
within the zone.
(6)
A management plan must be provided addressing best
management practices for the SMZ consistent with the management plan for the
silvicultural nonpoint source pollution management program developed by the
Texas State Soil and Water Conservation Board. These guidelines are available
from the Texas Forest Service or Texas Forestry Association. The plan must
address harvest restrictions, as prescribed in paragraph (7) of this subsection.
The landowner must comply with the parts of the management plan that relates
to the zone in order to qualify the land as a SMZ.
(7)
Harvesting is restricted to the extent that a minimum
of 50 square feet per acre, on average, of residual basal area should be retained
in trees evenly distributed within SMZ.
§215.17. Request for Zone Determination by a Chief Appraiser or Taxing Unit.
(a)
Request for zone determination by a chief appraiser.
(1)
Prior to denial of an application based on zone location,
a chief appraiser must request a determination letter from the director as
to the type, size, and location of the zone, if any, in which the applicant's
land is located, pursuant to Tax Code, §23.9806(a). Such request must
be made no later than 30 days after the date of receipt of the application
for restricted-use timberland appraisal from the landowner if on or prior
to April 1 or 15 days after the date of receipt of the application if after
April 1. The chief appraiser shall accept the director's determination letter
as conclusive proof of the type, size, and location of the zone, if any, pursuant
to Tax Code, §23.9806(c) and §23.9806(d).
(2)
To request a zone determination, the chief appraiser
must complete and deliver the request form, as prescribed in figure 4 TAC §215.17(a)(2),
to the Texas Forest Service, including the following information:
Figure: 4 TAC §215.17(a)(2)
(A)
a copy of application for restricted-use timberland appraisal
based on zone claimed, showing the applicant's name, address, and telephone
number and the date of the application;
(B)
a statement certifying:
(i)
the date the chief appraiser received the application;
(ii)
that the chief appraiser has delivered a copy of the
request to the applicant; and
(iii)
the date on which such notice was given;
(C)
a list of the taxing units in which the subject land is
located;
(D)
the type of zone for which restricted-use timberland appraisal
is sought;
(E)
the number of acres included in the zone;
(F)
the location of the claimed zone;
(G)
a statement of the grounds upon which the chief appraiser
seeks to deny the application;
(H)
a map showing tract location and a map of tract showing
the zone location if location or acreage is contested;
(I)
information to document the case if the minimum 50 square
feet per acre of residual basal area is contested;
(J)
any other information or evidence required according to
the instructions for submitting information or evidence, as prescribed in
paragraph (3)(B) of this subsection, to support the chief appraiser's position;
and
(K)
any other information or evidence the chief appraiser
believes should be considered by the director in making a determination.
(3)
The chief appraiser shall deliver to the applicant
and each taxing unit in which the land is located:
(A)
a notice, as prescribed in figure 4 TAC §215.17(a)(3)(A),
to notify the applicant and each taxing unit in which the land is located
that a determination has been requested.
Figure: 4 TAC §215.17(a)(3)(A)
(B)
appropriate instructions to the applicant and each taxing
unit in which the land is located, as prescribed in figure 4 TAC §215.17(a)(3)(B),
specifying:
Figure: 4 TAC §215.17(a)(3)(B)
(i)
that the applicant or each taxing unit in which the land
is located has the right to present information and evidence to the director;
(ii)
the deadline by which the applicant and each taxing unit
must submit such information and evidence, as defined in subsection (b)(2)
and (b)(5) of this section;
(iii)
the information or evidence required by the director
for each type of zone to support each party's position; and
(iv)
the mailing address and telephone number of the director
or the director's representatives.
(C)
a copy of the request and all information submitted to
the director by the chief appraiser.
(4)
If a request is not filed within the period
required by paragraph (1) of this subsection, omits information required by
paragraph (2) of this subsection, or fails to provide the notices required
by paragraph (3) of this subsection, the director may not consider the request.
(b)
Presentation of information or evidence by the applicant
and the taxing units to the director in response to request by a chief appraiser.
(1)
If a chief appraiser requests a determination letter from
the director prior to denial of an application based on claimed zone under
Tax Code, §23.9806(a), the applicant and a representative of each taxing
unit in which the land is located may present information or evidence to the
director before the director issues the determination letter, pursuant to
Tax Code, §23.9806(e).
(2)
Such information or evidence must be submitted by
the applicant or each taxing unit in which the land is located in writing
no later than 30 days after the date of receipt of the notice of the zone
determination request from the chief appraiser if on or prior to April 1 or
15 days after the date of receipt of the request if after April 1.
(3)
The information or evidence that must be provided
by the applicant or the taxing unit to the director is prescribed in subsection
(a)(3)(B) of this section. Failure to provide the required information or
evidence may result in an adverse determination for that party.
(4)
If a taxing unit submits any information or evidence
to the director that was not provided to the applicant by the chief appraiser,
the taxing unit must deliver a copy of the information or evidence to the
applicant.
(5)
The applicant may respond to the additional information
or evidence submitted by a taxing unit. Such response must be submitted in
writing to the director not later than 15 days after the date of receipt from
the taxing unit.
(c)
Request for zone determination by a taxing unit.
(1)
If a taxing unit challenges a determination that a timber
land qualifies for restricted-use timberland appraisal on the ground that
the land is not located in a zone, the taxing unit must first seek a determination
letter from the director, pursuant to Tax Code, §41.03(b), within 15
days after the date the appraisal records are submitted to the appraisal review
board. The appraisal review board shall accept the director's determination
letter as conclusive proof of the type, size, and location of the zone, if
any, pursuant to Tax Code, §41.03(b).
(2)
To request for a zone determination, the taxing unit
must complete and deliver a request form, as prescribed in subsection (a)(2)
of this section, to the Texas Forest Service, including the following:
(A)
a copy of the application for restricted-use timberland
appraisal based on forest zone, showing the applicant's name, address, and
telephone number and the date of the application;
(B)
a statement certifying:
(i)
the date the appraisal record was submitted to the appraisal
review board;
(ii)
that the taxing unit has delivered a copy of the request
to the applicant; and
(iii)
the date on which such notice was given;
(C)
the type of zone for which restricted-use appraisal is
sought;
(D)
the number of acres included in the zone claimed;
(E)
the location of the claimed zone;
(F)
a statement of the grounds upon which the taxing unit
seeks to challenge the application;
(G)
a map showing tract location and a map of tract showing
the zone location if location or acreage is contested;
(H)
information to document the case if the minimum 50 square
feet per acre of basal area is contested;
(I)
any other information or evidence required by the Texas
Forest Service according to the instructions for submitting information or
evidence, as prescribed in subsection (a)(3)(B) of this section, to support
the taxing unit's position; and
(J)
any other information or evidence the taxing unit believes
should be considered by the director in making a determination.
(3)
The taxing unit shall deliver to the applicant
and the chief appraiser:
(A)
a notice, as prescribed in figure 4 TAC §215.17(c)(3)(A),
to notify the applicant and the chief appraiser that a determination has been
requested.
Figure: 4 TAC §215.17(c)(3)(A)
(B)
appropriate instructions to the applicant and the chief
appraiser, as prescribed in subsection (a)(3)(B) of this section, specifying:
(i)
that the applicant and the chief appraiser has the right
to present information and evidence to the director;
(ii)
the deadline by which the applicant and the chief appraiser
must submit such information and evidence, as defined in paragraph (4) of
this subsection;
(iii)
the information or evidence required by the director
to support each party's position; and
(iv)
the mailing address and telephone number of the director
or the director's representatives.
(C)
a copy of the request and all information submitted to
the director from the taxing unit.
(4)
The applicant and the chief appraiser may respond
to the request by submitting information or evidence to the director. Such
information or evidence must be submitted in writing within 15 days of receipt
from the taxing unit.
(5)
If a request is not filed within the period required
by paragraph (1) of this subsection, omits information required by paragraph
(2) of this subsection, or fails to provide the notice required by paragraph
(4) of this subsection, the director may not consider the request.
§215.21. Director's Action.
(a)
Director's action on request from the chief appraiser.
(1)
The director shall make the determination based on the
written information or evidence submitted by the chief appraiser, the applicant,
and taxing unit(s). The determination letter, as prescribed in figure: 4 TAC §215.21(a)(1),
shall include the following information:
Figure: 4 TAC §215.21(a)(1)
(A)
whether the land is located in a zone;
(B)
the type of zone in which the land is located, if any;
(C)
the number of acres included in the zone, if any; and
(D)
the location of the zone.
(2)
The director shall deliver a determination letter
to the chief appraiser no later than June 30 or as soon thereafter as practicable.
(3)
The director shall deliver a copy of the determination
letter to the applicant and any taxing unit that submitted information to
the director at the same time when the letter is sent to the chief appraiser.
(b)
Director's action on request from a taxing unit.
(1)
The director shall make the determination based on the
written information and evidence submitted by the chief appraiser, the taxing
unit, and the applicant. The determination letter, as prescribed in subsection
(a)(1) of this section, shall include the following information:
(A)
whether the land is located in a zone;
(B)
the type of zone in which the land is located, if any;
(C)
the number of acres included in the zone, if any; and
(D)
the location of the zone.
(2)
The director shall issue a determination letter
to the taxing unit no later than June 30 or as soon thereafter as practicable.
(3)
The director shall deliver a copy of the determination
letter to the applicant, the chief appraiser, and the appraisal review board
at the same time when the letter is sent to the taxing unit.
§215.35. Application for Designation of Timberland as AMZ-Special or Unique Area.
(a)
Pursuant to Tax Code, §23.9801(b), to qualify as
AMZ-special or unique area, timberland must be designated by the Texas Forest
Service based on the area's natural beauty, topography, or historical significance.
(b)
To apply for such a designation, the applicant must complete
and deliver the application form, as prescribed in figure 4 TAC §215.35(b),
to the Texas Forest Service. The application must contain adequate information
to determine eligibility. Such information include:
Figure: 4 TAC §215.35(b)
(1)
the applicant's information, including name, address,
and phone number;
(2)
size of proposed designated area;
(3)
location of proposed designated site;
(4)
historical/archeological site recording with the
Texas Archeological Research Lab, the University of Texas at Austin;
(5)
a description of the significance of features that
warrant a designation;
(6)
a management plan that meet harvesting restriction
requirement as defined in §215.5(b)(4) of this title (relating to the
Criteria for Determining AMZ upon Request from a Chief Appraiser or Taxing
Unit); and
(7)
any other information or evidence necessary to support
the application.
(c)
The Texas Forest Service shall use the criteria, as set
forth in §215.5(b) of this title to determine whether an application
qualifies as designated AMZ-special or unique area.
(d)
If a timberland qualifies for designation, the director
shall issue a letter, as prescribed in figure 4 TAC §215.35(d), to the
applicant designating the land as special or unique. The letter shall specify
the location of the zone, the number of acres located in the zone, and the
special or unique natural, topographical, or historical features of the land.
Figure: 4 TAC §215.35(d)
(e)
The designation letter shall be issued within 60 days
after the date the application is received by the director or by April 15,
whichever is later.
(f)
The director may revoke a designation issued under this
section at any time if the timberland no longer qualifies for such designation.
Before revoking a designation, the director must deliver notice of intent
to revoke to the landowner, stating in detail the reasons for the proposed
revocation, and provide the landowner with at least 15 days to respond with
evidence showing continued qualification for the designation.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
10, 2000.
TRD-200000136
Edwin Barron
Associate Director of Resource Development Department
Texas Forest Service
Effective date: January 30, 2000
Proposal publication date: December 3, 1999
For further information, please call: (512) 458-6650