31 TAC §15.5
The General Land Office proposes amendments to §15.5,
relating to Beachfront Construction. These amendments address problems created
by the erosion of Gulf beaches and the landward migration of the line of vegetation.
The public in Texas has the free and unrestricted right of access to and use
of the public beach, which is normally the area from the line of mean low
tide to the natural line of vegetation.
Due to erosion, the natural line of vegetation may migrate landward, leaving
some existing structures that partially cross the line of vegetation, structures
that are partially seaward of the line of vegetation and encroaching on public
beaches. The proposed amendments to §15.5 clarify when and how such structures
may be repaired and maintained. The proposed amendments are intended to facilitate
the repair of structurally sound structures. The proposed amendments do not
authorize the construction of new structures and amenities seaward of the
line of vegetation, nor do the amendments authorize the repair of structures
that are wholly seaward of the line of vegetation. Once a structure crosses
the line of vegetation, in most instances, it is only a matter of time until
the entire structure is seaward of the line of vegetation.
An existing structure may be repaired if it is not subject to imminent
collapse due to erosion and if there is no enforcement action pending under
the General Land Office's beach/dune rules (Texas Administrative Code, Title
31, Chapter 15), the Open Beaches Act (Texas Natural Resources Code, Chapter
61), or the Dune Protection Act (Texas Natural Resources Code, Chapter 63).
An enforcement action includes the filing of a suit in district court or the
referral of a matter for enforcement to the attorney general or other public
prosecutor. Under the proposed amendments, a local government would be prohibited
from authorizing the following: repairing or constructing a slab of concrete
or other impervious material; repairing or constructing an enclosed space,
including a space with breakaway walls, below the base flood elevation, as
identified on the pertinent community's flood insurance rate map, and seaward
of the line of vegetation; increasing the footprint of the structure; repairing
a structure without a functioning septic system or sewer connection as determined
by the local government or the Texas Natural Resource Conservation Commission,
unless the structure's septic system may be repaired as provided in these
proposed amendments; repairing a structure previously built, repaired, or
renovated in violation of the General Land Office's beach/dune rules or the
local government's dune protection and beach access plan or without an approved
certificate or permit; or constructing, repairing, or maintaining an erosion
response structure. A slab or other paving beneath the footprint of a structure
may be replaced by wooden decking, brick pavers, or other pervious materials.
A local government may authorize the repair of a septic system landward of
the line of vegetation if the system complies with the rules of the Texas
Natural Resource Conservation Commission and the local government governing
on-site sewage facilities.
An amenity that is partially seaward of the line of vegetation or attached
to a structure that is partially seaward of the line of vegetation may be
repaired only if the amenity is less than 50% damaged and if all non-essential
paving or other impervious surfaces associated with the amenity are replaced
by wooden decking, brick pavers, or other pervious materials. "Amenities"
are defined under §15.2 of this title, relating to Definitions, as "any
nonhabitable major structure including swimming pools, bathhouses, detached
garages, cabanas, pipelines, piers, canals, lakes, ditches, artificial runoff
channels and other water retention structures, roads, streets, highways, parking
areas and other paved areas (exceeding 144 square feet in area), underground
storage tanks, and similar structures." Amenities may still be repaired and
constructed landward of the line of vegetation.
If repair of a structure under these amendments includes a proposal to
use sand, soil, or sediment, that material must be of an acceptable mineralogy
or grain size when compared to the sediments found on the site. The use of
loam, a 60/40 sand/clay mix, or other compacted fill material is prohibited.
A local government may only authorize a dune restoration project concurrent
with the repair of a structure under these rules if the project uses beach
quality sand, either extends no more than ten feet seaward of the footprint
of the structure or extends no more than twenty feet seaward of the natural
line of vegetation, uses native plants of the same species as found on neighboring
natural dunes or other dunes in the general vicinity, and does not interfere
with public use of the beach at normal high tide.
A person submitting an application for repair of a structure that is partially
seaward of the line of vegetation and encroaching on a public beach must also
submit three executed copies of the statement set forth in the proposed amendments.
The statements must be signed by the owner of the property, notarized, and
filed with the local government, the General Land Office, and the Office of
the Attorney General. Before signing this notice, a person may want to consult
with an attorney. This notice is based on the statutory notice to purchasers
of coastal land set forth at Texas Natural Resources Code §61.025(a)
and acknowledges that the person signing the notice is the owner of the described
property, is aware of the public beach easement, and acknowledges that structures
that become seaward of the line of vegetation as a result of natural processes
are subject to a lawsuit by the State of Texas to remove the structures.
Mr. Andrew Neblett, Deputy Commissioner for the Resource Management Program,
has determined that the specific fiscal implications for the first five-year
period that the proposed amendments will be in effect cannot be determined.
Any fiscal implications for state or local governments as a result of enforcing
or administering this amendment are anticipated to be minimal. Under the existing
beach/dune programs, local governments issue, review, inspect, and enforce
certificates and permits and the state agencies review, inspect, and enforce
certificates and permits. The proposed rule amendments may increase the workload
for these programs. Local governments may also be required to amend their
local beach/dune plans if such plans specifically prohibit the repair of structures
that partially cross the line of vegetation. Due to the rolling nature of
the line of vegetation and the unknown number of potential storm events for
the first five years that the proposed amendments will be in effect, the specific
number of structures affected by the proposed amendments cannot be determined.
It is also impossible to determine how many individuals will apply for permits
under the proposed rules, so the actual cost to implement these rules, if
any, cannot be determined. The potential number of structures is limited,
however; and the cost to process any applications for repair of structures
through the existing programs is anticipated to be inconsequential relative
to the existing program workloads.
Mr. Neblett also has determined that for each year of the first five-year
period the proposed amendments will be in effect the public benefit will be
that property owners may repair structures that cross the line of vegetation.
The repair of these structures will help maintain the local tax base and preserve
individual properties. The anticipated economic cost to persons who are required
to comply with these amendments for each year of the first five years period
will be, roughly, equivalent to the cost of applying for a beach/dune permit
or certificate.
The proposed rule amendments are subject to the Texas Coastal Management
Program (CMP) and must be consistent with all applicable CMP goals and policies.
The proposed amendments comply with §501.14(h) of this title, relating
to Policies for Specific Activities and Coastal Natural Resource Areas; Development
in Critical Areas, by avoiding and minimizing potential impacts to tidal sand
and mud flats along Gulf of Mexico beaches. The proposed amendments comply
with §501.14(k) of this title, relating to Construction in the Beach/Dune
System, by providing that construction adjacent to the public beach will avoid
and minimize adverse effects so that construction within critical dune areas
does not materially weaken or materially damage dune vegetation and will preserve
the ability of the public, individually and collectively, to exercise its
rights to access and use public beaches. The proposed amendments comply with
§501.14(l) of this title, relating to Development in Coastal Hazard Areas,
by providing for compliance with the National Flood Insurance Program. The
public is invited to comment on the consistency of the proposed rule amendments
with the CMP goals and policies.
The proposed amendments do not constitute a "major environmental rule"
as described under Texas Government Code §2001.0225. A major environmental
rule is a rule the specific intent of which is to protect the environment
or reduce risks to human health from environmental exposure and that may adversely
affect in a material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state. The proposed amendments will not exceed a
standard set by federal law, exceed an express requirement of state law, exceed
a requirement of a delegation agreement or contract between the state and
an agency or representative of the federal government to implement a state
and federal program, or be adopted solely under the general powers of the
General Land Office.
Comments on the proposed amendments may be submitted to Ms. Carol Milner,
Texas Register Liaison, General Land Office, 1700 North Congress Avenue, Room
626, Austin, Texas, 78701-1495, facsimile 512/463-6311. In order to be considered,
comments must be received by 5 p.m., Monday, September 13, 1999.
The General Land Office has prepared a takings impact assessment for this
proposed amendment and determined that 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. Milner.
These amendments are proposed under Texas Natural Resources Code
§61.011(d), which authorizes the General Land Office to adopt rules to
preserve and enhance public beach access and construction on land adjacent
to and landward of public beaches; Texas Natural Resources Code §63.121,
which authorizes the General Land Office to promulgate rules for the identification
and protection of critical dune areas; Texas Natural Resources Code §33.601,
which authorizes the General Land Office to adopt rules on coastal erosion;
and Texas Water Code §16.321, which authorizes the General Land Office
to adopt rules for coastal flood protection.
Texas Natural Resources Code §§61.011, 63.121, and 33.601 and
Texas Water Code §16.321 are affected by the proposed amendments.
§15.5.Beachfront Construction Standards.
(a)-(b)
(No change.)
(c)
Encroachments on public beaches.
(1)
Prohibition of construction on the public beach. A local
government is prohibited from issuing a certificate or permit authorizing
any person to undertake any construction on the public beach or any construction
that encroaches in whole or in part on the public beach
except as provided
under paragraph (3) of this subsection.
This prohibition does not prevent
the approval of man-made vegetated mounds and dune walkovers under a properly
issued dune protection permit and beachfront construction certificate. Any
issuance or approval of a permit, certificate, or any other instrument contrary
to this subsection is void.
(2)
Construction landward of the public beach. Local governments
shall not issue any beachfront construction certificate authorizing construction
landward of the public beach that functionally supports or depends on, or
is otherwise related to, proposed or existing structures that encroach on
the public beach, regardless of whether the encroaching structure is on land
that was previously landward of the public beach
except as provided under
paragraph (3) of this subsection.
(3)
Repair of existing structures
on the public beach. A local government shall only issue a beachfront construction
certificate or dune protection permit authorizing the repair of a structure
that partially crosses the line of vegetation and encroaches on a public beach
if the proposed repairs comply with the standards provided in this paragraph
and §15.6(e) and (f) of this title (relating to Concurrent Dune Protection
and Beachfront Construction Standards), if the structure is not subject to
imminent collapse, and if there is no enforcement action pending under this
chapter, the Open Beaches Act, the Dune Protection Act, or the local government
plan. An enforcement action includes the filing of a suit in district court
or the referral of a matter for enforcement to the attorney general or other
public prosecutor.
(A)
Local governments shall not issue a certificate
or permit authorizing repair of a structure that partially crosses the line
of vegetation, as determined pursuant to subparagraph (E) of this paragraph,
and encroaches on a public beach if the local government determines that the
repairs:
(i)
include a proposal to repair or construct a
slab or other impervious surface of concrete or other impervious materials,
although wooden decking, brick pavers, or other pervious materials may be
used beneath the footprint of the structure;
(ii)
include a proposal to repair or construct an
enclosed space below the base flood elevation and seaward of the line of vegetation;
(iii)
include a proposal to increase the footprint
of the structure;
(iv)
are for a structure without a functioning septic
system or sewer connection as determined by the local government or the Texas
Natural Resource Conservation Commission, unless a septic system may be repaired
as provided in subparagraph (B) of this paragraph;
(v)
include a proposal for construction, repair,
or maintenance of an erosion response structure;
(vi)
are for a structure previously built, repaired,
or renovated in violation of this chapter or the local government plan or
without an approved certificate or permit; or
(vii)
include a proposal to use sand, soil, or sediment
within the beach/dune system that is not of an acceptable mineralogy or grain
size when compared to the sediments found on the site.
(B)
A local government may issue a beachfront construction
certificate or permit for the construction or repair of a septic system landward
of the line of vegetation if the system complies with the rules of the Texas
Natural Resource Conservation Commission and the local government governing
on-site sewage facilities.
(C)
A local government shall only issue a certificate
or permit for the repair of an amenity that partially crosses the line of
vegetation and encroaches on a public beach or that is attached to a structure
that partially crosses the line of vegetation and encroaches on a public beach
only if the amenity is less than 50% damaged and if all non-essential paving
or other impervious surfaces associated with the amenity are replaced by wooden
decking, brick pavers, or other pervious materials.
(D)
A local government shall only issue a certificate
or a permit authorizing the construction of a dune restoration project concurrent
with the repair of a structure that partially crosses the line of vegetation
if the proposed dune restoration follows the standards provided in this paragraph
and §15.7(e) of this title (relating to Local Government Management of
the Public Beach). A dune restoration project under this paragraph shall:
(i)
use sand, soil, or sediment that is of an acceptable
mineralogy or grain size when compared to the sediments found on the site;
(ii)
either extend no more than ten feet seaward
of the footprint of the structure or extend no more than twenty feet seaward
of the line of vegetation;
(iii)
use indigenous vegetation that will achieve
the same protective quality as the surrounding natural dunes or other dunes
in the general vicinity; and
(iv)
not restrict or interfere with the public use
of the beach at normal high tide.
(E)
A person submitting an application for repair
of a structure that crosses the line of vegetation and encroaches on a public
beach shall submit an original executed copy of the following statement signed
by the owner of the property to the local government, General Land Office,
and the Office of the Attorney General):
Figure: 31 TAC §15.5(c)(3)(E)
(d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August
2, 1999.
TRD-9904739
Larry Soward
Chief Clerk
General Land Office
Earliest possible date of adoption: September 12, 1999
For further information, please call: (512) 305-9129