See
31 TAC §505.23. Under the provisions
of §15.3(o) the City requested a variance from the requirements of §§15.4(c)(8),
15.5(b)(3), and 15.6(f)(3) and submitted a reasoned justification supporting
the requested variance. No change was made in response to this comment.
The Office of the Attorney General (OAG) said that ". . . it is not evident
. . . how the variance will provide equal or better protection than provided
under current beach/dune rules . . ." and that " the City's justification
for the use of fibercrete appears to focus mainly on the economy and ease
in cleaning up fibercrete, as well as the aesthetics and economy in using
the product." The City offered several reasons to justify the fibercrete
ordinance and the requested variance. First, the City explained that the
clean-up of fibercrete would be quicker, easier, and more economical than
the clean-up of brick pavers which are allowed under the beach/dune rules
and that the use of fibercrete will not impact the beach/dune system in any
greater manner than will materials currently permitted under the beach/dune
rules. Second, the City established the fibercrete maintenance fee to pay
for the clean-up of fibercrete from the public beach. Finally, the City has
established specific conditions for its Beachfront Construction and Dune
Protection Permits to ensure that the fibercrete paving is installed in a
manner that minimizes adverse impacts to dunes and dune vegetation. No change
was made in response to this comment.
The HGSC stated that the proposed amendment ignores the operation of coastal
ecosystems and will reduce the ability of dunes to rebuild and recover from
normal and storm erosion. The provisions affected by this proposal - §§15.4(c)(8),
15.5(b)(3), and 15.6(f)(3) - apply only to the construction of concrete slabs
and other impervious surfaces. This amendment does not affect the obligation
under §15.4(f) to avoid, minimize, and mitigate all adverse effects
to dunes and dune vegetation to the greatest extent practicable. Thus, if
a proposed project using fibercrete has an adverse effect on dunes and dune
vegetation, impairing the operation of coastal ecosystems and the ability
of the dunes to rebuild and recover from erosion, then the project sponsor
has an obligation under §15.4(f)(3) to mitigate for the adverse effect,
replacing the affected dunes and dune vegetation at not less than a 1:1 ratio.
No change was made in response to this comment.
The OAG commented that the City's justification does not address ". . .
how fibercrete acts in allowing percolation of water or preventing concentrated
runoff from rain . . . ." The City's Plan requires that fibercrete be installed
in 4 feet by 4 feet sections separated by expansion joints or pervious materials.
The expansion joints and pervious materials will allow percolation and disperse
runoff. The City's justification also provides that an applicant for a Beachfront
Construction and Dune Protection Permit is required to provide City staff
with plans for drainage to the nearest landward public right-of-way. Furthermore,
§15.4(d) and §15.6(g), which require that impacts to natural hydrology
be minimized, as well as the mitigation requirements under §15.4(f),
remain in effect. No change was made in response to this comment.
The OAG commented that there is no apparent rationale for changing the
pervious surfacing driveway requirement for applicants in eroding areas 200
feet landward of the line of vegetation and beyond. Beyond 200 feet landward
of the line of vegetation, it is less likely that a concrete slab or other
pervious surface will become beach debris due to erosion. Should the surfacing
become beach debris, the City may access the fibercrete maintenance fee to
pay for the debris removal. No change was made in response to this comment.
The OAG expressed concern that the City's standard for using the funds
collected from the fibercrete maintenance fee for the removal of fibercrete
from the public beaches is not clear. The HGSC also objected to the fibercrete
maintenance fee, commenting that the fee would be inadequate to pay for the
removal of fibercrete debris. The City intends that the fibercrete maintenance
fee serve as a reserve fund. Individual property owners have the primary
responsibility for removing any fibercrete debris from the public beaches.
Second, following a storm, federal, state, and local emergency funds may
be available to remove fibercrete and other debris from the public beaches.
Finally, after these resources have been exhausted, the City will use the
fibercrete maintenance fee to remove any remaining fibercrete debris from
the public beaches. Furthermore, the City has estimated that it will cost
$1,200.00 to break-up and remove one 2,000 square foot fibercrete slab. No
change was made in response to these comments.
The OAG commented that the reasoned justification and method for calculating
the fibercrete maintenance fee are not clear given that the fee may apply
both to proposals for paving 200 square feet or 2,000 square feet. HGSC also
commented that the fee should be scaled so that the fee is greater for projects
that cause more damage. The $200 fibercrete maintenance fee is applied to
all beachfront construction projects, distributing the risk that the City
may be required to remove debris resulting from any one project. No change
was made in response to this comment.
Finally, HGSC stated that it is "ridiculous" to allow construction up to
25 feet from the line of vegetation in the critically hazard beach and dune
area. As noted above, the proposed amendment does not alter the obligation
under §15.4(f) to avoid, minimize, and mitigate adverse effects to dunes
and dune vegetation. Furthermore, there is nothing under the beach/dune rules
that prohibits construction up to 25 feet from the line of vegetation. No
change was made in response to this comment.
Persons commenting for the amendment: City of Galveston. Persons commenting
against the amendment: Office of the Attorney General and Houston and Galveston
Chapters of the Sierra Club.
The Land Office has prepared a takings impact assessment for the adoption
of this amendment and determined that adoption of this amendment will not
result in a taking of private real property. To receive a copy of the takings
impact assessment, please send a written request to Ms. Sylvia Sissom, Texas
General Land Office, Legal Services Division, 1700 North Congress Avenue,
Room 626, Austin, Texas 78701-1495, facsimile number 512/463-6311.
The certification of a local government beach access or dune protection
plan is an action subject to the Texas Coastal Management Program. The Land
Office has reviewed this proposed action for consistency with the Texas Coastal
Management Program (CMP) goals and policies in accordance with the regulations
of the Coastal Coordination Council, and has determined that the proposed
action is consistent with the applicable CMP goals and policies.
The amendment is proposed under Texas Natural Resources Code,
§61.011 and §61.015(b), which provide the Land Office with the
authority to preserve and enhance public beach access; Texas Natural Resource
Code, §63.121, which provides the Land Office with the authority to
identify and protect critical dune areas; Texas Natural Resource Code, §33.601,
which provides the Land Office with the authority to adopt rules on erosion;
and Texas Water Code, §16.321, which provides the Land Office with the
authority to adopt rules on coastal flood protection.
§15.11.Certification of Local Government Dune Protection and Beach Access Plans.
(a)
(No change.)
(b)
Conditional certification of local government plans. The
following local governments have submitted plans to the General Land Office
which are conditionally certified as consistent with state law.
(1)
City of Galveston (adopted August 12, 1993, amended September
30, 1997).
(A)
This certification is valid for 180 days, during which
time the City of Galveston will modify its plan consistent with the General
Land Office comments submitted to the City of Galveston (October 14, 1993).
(B)
This certification includes a variance from §§15.4(c)(8),
15.5(b)(3), and 15.6(f)(3) of this title, (relating to Dune Protection Standards,
Beachfront Construction Standards, and Concurrent Dune Protection and Beachfront
Construction Standards). The City of Galveston's plan:
(i)
provides that paving or altering the ground below the
lowest habitable floor is prohibited in the area between the line of vegetation
and 25 feet landward of the north toe of the dune;
(ii)
provides that paving used under the habitable structure
and for a driveway connecting the habitable structure and the street is limited
to the use of unreinforced fibercrete in 4 feet by 4 feet sections, which
shall be a maximum of four inches thick with sections separated by expansion
joists, or pervious materials approved by the City Department of Planning
and Transportation, in that area 25 feet landward of the north toe of the
dune to 200 feet landward of the line of vegetation;
(iii)
assesses a "Fibercrete Maintenance Fee" of $200.00 to
be used to pay for the clean-up of fibercrete from the public beaches, should
the need arise; and
(iv)
allows the use of reinforced concrete in that area landward
of 200 feet from the line of vegetation.
(2)-(3)
(No change.)
(c)-(f)
(No change.)
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.
Issued in Austin, Texas, on December 15, 1997.
TRD-9716802
Garry Mauro
Commissioner
General Land Office
Effective date: January 5, 1998
Proposal publication date: October 31, 1997
For further information, please call: (512) 305-9129