31 TAC §15.7
The General Land Office proposes amendments to §15.7,
relating to Local Government Management of the Public Beach, as described
in the following paragraphs.
The proposed amendments to §15.7(e), relating to Restored Dunes on
Public Beaches, provide that local governments cannot authorize the installation
of a sand fence more than twenty feet seaward of the natural line of vegetation
or that restrains or interferes with public use of a public beach. In many
instances, sand fencing has been installed as a means for excluding the public
from areas of the public beach.
The proposed amendments to §15.7(f), relating to Scientific Research
Projects, would allow local governments to sponsor geotextile shore protection
research projects. A geotextile project is a shore protection research project
that uses synthetic geotextile materials. A proposed geotextile project must
be formally approved by the governing body of the local government sponsoring
the project. A detailed workplan for a proposed geotextile project must be
submitted to the General Land Office for approval. A proposed geotextile project
must be located landward of the line of vegetation and be filled and covered
with beach quality sand from a sand source outside of the beach/dune system.
The workplan for a proposed geotextile project must include project goals
and demonstrate that the project sponsor has obtained all necessary authority
for installation, repair, modification, and removal of the project. A proposed
geotextile project cannot materially weaken existing dunes or dune vegetation
or increase erosion of adjacent properties.
If a proposed geotextile project will be installed on an eroding shoreline,
the project workplan must include a specific commitment from the project sponsor
to provide beach nourishment over the lifetime of the project to ensure that
the seaward edge of the project is at least 200 feet from the seaward line
of mean low tide. The workplan must give details of the beach-nourishment
aspects of the project. A project workplan must provide for monitoring the
geotextile project using periodic surveys, benchmark photographs, or other
monitoring techniques as required by the General Land Office.
The local government sponsoring a proposed geotextile project must indemnify
the state against any claim resulting from installation, maintenance, or removal
of the geotextile project. Prior to beginning construction of a geotextile
project, the project sponsor must conduct a coastal boundary survey and submit
the survey to the General Land Office for approval as required by Texas Natural
Resources Code §33.136. The project sponsor must submit to the General
Land Office written assessments from a professional coastal geologist and
a licensed engineer with experience in coastal engineering that address specified
issues such as a project's potential impact on the public beach and adjacent
property.
After an administratively complete project workplan has been received,
the General Land Office will have thirty working days to approve, conditionally
approve, request modifications, or deny a proposed project workplan. The General
Land Office will provide the Office of the Attorney General with a proposed
decision regarding the project workplan, and the Office of the Attorney General
will provide the General Land Office with comments regarding the proposed
decision.
A project sponsor must submit monitoring reports to the General Land Office
on a regular basis. Such monitoring reports must be prepared by a licensed
engineer and must include a written assessment of the project's current condition,
the project's effect on the public's access to and use of the public beach,
and whether the project is causing or contributing to erosion of the beach
or adjacent property. Based on the actual performance of a geotextile project,
a local government as project sponsor may be required to repair, modify, or
remove the project if all or a portion of the project fails or if the General
Land Office or the Office of the Attorney General determines that all or a
portion of the project is causing or contributing to erosion of the beach
or adjacent properties or interferes with public access to or use of a public
beach. A project sponsor must provide the General Land Office with a performance
bond or written guarantee to ensure that the project will be removed if the
project fails, causes or contributes to erosion, or interferes with public
use of the beach at normal high tide.
The proposed new subsection (n), relating to Public Infrastructure Landward
of the Public Beach, prohibits a local government from authorizing the construction
of new paved roads, sewers, water mains, utilities, or other public infrastructure
landward of the public beach that functionally support or depend on proposed
or existing structures that encroach on the public beach. This amendment explicitly
clarifies that the existing requirement under §15.5(c)(2) of this title,
relating to Beachfront Construction Standards, prohibiting "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," applies to local governments.
Mr. Andrew Neblett, Deputy Commissioner for the Resource Management Program
has determined that during the first five-year period the proposed amendments
will be in effect there will be fiscal implications for local governments
that elect to sponsor geotextile shore protection research projects. The preparation
of the geotextile project workplans will result in an additional cost to local
governments. The total fiscal impact to local governments for the first five-year
period cannot be estimated at this time as it is unknown how many local governments
may sponsor geotextile projects during that period. A local government that
intends to sponsor a geotextile project must also amend its beach/dune plan
to incorporate these rule amendments and to otherwise allow for such projects.
The General Land Office and the Office of the Attorney General will experience
additional costs associated with the review of any proposed geotextile project
workplans. However, such additional costs should be minor and easily absorbed
by the state agencies' existing beach/dune programs.
Mr. Neblett has also determined that for each year of the first five-year
period the proposed amendments will be in effect the public benefit will be
that any geotextile shore protection research projects will be designed and
constructed in a manner that preserves the public's rights to access and use
public beaches and protects public beaches and adjoining properties from any
adverse impacts resulting from a geotextile project. Because these proposed
amendments apply only to local governments, there should be no economic cost
to individuals or private enterprises.
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(j) of this title, relating to Dredging and Dredged Material
Disposal and Placement, by providing for the beneficial use of dredged sand
as part of a geotextile shore protection project. 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 preserve the rights of the public, individually and collectively, 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 20, 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 to allow 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.
§15.7.Local Government Management of the Public Beach.
(a)
(No change.)
(b)
Construction of coastal and shore protection projects.
Local governments shall encourage carefully planned beach nourishment and
sediment bypassing for erosion response management and prohibit erosion response
structures within the public beach and 200 feet landward of the natural vegetation
line
except as provided under subsection (f) of this section.
(c)-(d)
(No change.)
(e)
Restored dunes on public beaches. Sand dunes, either naturally
created or restored, may aid in the preservation of the common law public
beach rights by slowing beach erosion processes. Except as otherwise provided,
local governments shall allow restoration of dunes on the public beach only
under the following conditions. Restored dunes may be located farther seaward
than the 20-foot restoration area only upon an affirmative demonstration by
the permit applicant that substantial dunes would likely form farther seaward
naturally. Such seaward extension past the 20-foot area must first receive
prior written approval of the General Land Office and the attorney general's
office. In the absence of such an affirmative demonstration by the applicant,
a local government shall require the applicant to meet the following standards
relating to the location of restored dunes.
(1)-(8)
(No change.)
(9)
Local governments shall not allow
any person to install a sand fence that extends more than twenty feet seaward
of the line of vegetation or that restrains or interferes with the public's
right of access to and use of a public beach.
(f)
Scientific research projects. Local governments may exempt
a scientific research project from the requirements of §15.4(c) of this
title (relating to Dune Protection Standards) or subsection (e) of this section
provided the research is conducted by an academic institution or state, federal,
or local government.
(1)
Prior to conducting the research, the project
manager shall submit a detailed work plan and monitoring plan for approval
by the General Land Office and the Office of the Attorney General. The research
activities shall not materially weaken existing dunes or dune vegetation,
or increase erosion of adjacent properties.
(2)
Local governments may
sponsor geotextile shore protection research projects that comply with the
standards and requirements of this paragraph. A geotextile project is a shore
erosion research project using synthetic geotextile materials.
(A)
A proposed geotextile project shall be formally
approved by the governing body of the local government sponsoring the project.
The local government will then be the project sponsor for the proposed geotextile
project.
(B)
The project sponsor shall submit a detailed
workplan for a proposed geotextile project to the General Land Office for
approval. The General Land Office may only approve a proposed project if the
workplan:
(i)
describes goals for the proposed geotextile
research project;
(ii)
provides that the proposed geotextile project
will be located landward of the line of vegetation;
(iii)
provides that any geotextile tube will be
filled and covered with sand, soil, or sediment from a source outside of the
beach/dune system that is of an acceptable mineralogy or grain size when compared
to the sediments found on the site;
(iv)
demonstrates that the proposed geotextile project shall
not materially weaken existing dunes or dune vegetation or cause or contribute
to erosion of adjacent properties;
(v)
includes a commitment from the project sponsor,
if the proposed geotextile project will be installed on an eroding shoreline,
for beach nourishment over the lifetime of the project to ensure that the
seaward edge of the project is at least 200 feet from the seaward line of
mean low tide;
(vi)
provides for monitoring the status of the geotextile
project using periodic surveys, benchmark photographs, or other monitoring
techniques as required by the General Land Office;
(vii)
complies with the standards and requirements
described in this paragraph; and
(viii)
demonstrates that the project sponsor has
obtained all necessary legal authority for installation, repair, modification,
and removal of the geotextile project.
(C)
The project sponsor shall enter into an indemnity
agreement with the General Land Office under which the project sponsor shall
unconditionally indemnify the state and assume the risk of and be responsible
for any and all damages or injuries, either to persons or property or both,
resulting from installation, maintenance, and/or removal of the geotextile
project caused by, or in any way resulting from, the project sponsor's negligence
or the negligence of the project sponsor's employees, agents, invitees, and/or
licensees.
(D)
Prior to beginning construction of a geotextile
project, the project sponsor shall conduct a coastal boundary survey and submit
the survey to the General Land Office for approval as required by Texas Natural
Resources Code §33.136.
(E)
Together with the proposed project workplan,
the project sponsor shall submit to the General Land Office written assessments
from a professional coastal geologist and a licensed engineer with experience
in coastal engineering that analyze the following issues:
(i)
the erosion rate in the project area;
(ii)
the impact of the project on the public's access
to and use of the beach, including the distance between the seaward edge of
the project and the effect of wave run-up at high tide;
(iii)
any potential effects of the project on down-drift
and up-drift properties;
(iv)
the project's potential for protecting structures
from surge, wave action, and scour during tropical storms or hurricanes;
(v)
the potential that the project will fail or
be damaged during a tropical storm or a hurricane and the subsequent fate
of project construction materials as a result of such a storm;
(vi)
the potential that the project will come into
regular contact with water and wave action within the next one, five, and
ten years, based on the local historical erosion rate data as determined by
the University of Texas at Austin, Bureau of Economic Geology, with and without
any required beach nourishment;
(vii)
the project's potential for causing or contributing
to scour of the beach or erosion of adjacent properties landward and seaward
of the project;
(viii)
an assessment of the sand source and the
quality of the sand to be used for the proposed project and any subsequent
beach nourishment; and
(ix)
for projects adjacent to eroding beaches, the
ability of the proposed beach nourishment, required under subparagraph (B)(i)(V)
of this paragraph, to ensure that the seaward edge of the project will be
at least 200 feet from the seaward line of mean low tide.
(F)
After an administratively complete project workplan
has been received, as determined by the General Land Office, the General Land
Office shall have thirty working days to approve, conditionally approve, request
modifications, or deny a proposed project workplan. An administratively complete
project workplan shall include all of the materials described in subparagraphs
(B)-(E) of this paragraph. Within twenty days of receipt of an administratively
complete project workplan, the General Land Office shall provide the Office
of the Attorney General with a proposed decision regarding the project workplan.
The Office of the Attorney General shall have ten working days to review the
project workplan and the General Land Office's proposed decision and to provide
the General Land Office with comments regarding the proposed decision.
(G)
The project sponsor shall submit annual reports
monitoring the status of a geotextile project to the General Land Office;
however, the General Land Office reserves the right to require that the reports
be submitted on a quarterly or biannual basis, depending on the scope, nature,
and location of the geotextile project. Such reports shall be prepared by
a licensed engineer and include a written assessment of the project's current
condition, the project's effect on the public's access to and use of the public
beach, whether the project is causing or contributing to erosion of the beach
or adjacent property, whether the project was reached by the waters of the
Gulf of Mexico during the reporting period and over the project's lifetime,
and for projects on eroding shorelines, the distance between the seaward edge
of the project and mean low tide.
(H)
Based on the actual performance of a geotextile
project and as required by the General Land Office or the Office of the Attorney
General, a project sponsor shall repair, modify, or remove the project as
described in this subparagraph.
(i)
If all or a portion of a geotextile project
fails, the project sponsor shall promptly repair or remove the failed portions
of the project at its sole expense. A project fails if the geotextile fabric
tears causing or creating the likelihood that sand will be released from the
geotextile tube or if a tube is moved out of its original alignment by wave
action or other means.
(ii)
If a tube is moved out of its original alignment
a significant distance or if the mobile tube endangers adjacent structures,
the project sponsor must promptly remove the tube at its sole expense.
(iii)
If the General Land Office or the Office of
the Attorney General determines that all or a portion of a geotextile project
is causing or contributing to erosion of the beach or adjacent properties,
the project sponsor shall either remove, at its sole expense, all of the portions
of the project causing or contributing to erosion or modify the project to
ensure that the erosion will not continue.
(iv)
If the General Land Office or the Office of
the Attorney General determines that all or a portion of a geotextile project
interferes with the public use of the beach at normal high tide, then the
project sponsor shall modify or remove the project, at its sole expense, so
that the project no longer interferes with the public's access to or use of
the beach.
(v)
The project sponsor shall provide the General
Land Office, at its option, with either a performance bond or written guarantee
to ensure the removal of the project if the project fails or if the project
must be removed because the project is causing or contributing to erosion
or because the project interferes with the free and unrestricted right of
the public, individually and collectively, to enter or to leave any public
beach or to use any public beach or any larger area abutting on or contiguous
to a public beach.
(g)-(m)
(No change.)
(n)
Public infrastructure landward of the
public beach. Local governments shall not authorize the construction of new
paved roads, sewers, water mains, utilities, or other public infrastructure
landward of the public beach that functionally support or depend on, or are
otherwise related to, proposed or existing structures that are or will be
located wholly or partially seaward of the line of vegetation regardless of
whether the structures were previously landward of the line of vegetation.
Local governments may authorize the construction of walkways, walkovers, lighting,
emergency telephones, restrooms, showers, and other public infrastructure
landward of the public beach consistent with public access to and use of the
public beach and the standards provided in this chapter, the Open Beaches
Act, and the Dune Protection Act.
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
5, 1999.
TRD-9904823
Larry R. Soward
Chief Clerk
General Land Office
Earliest possible date of adoption: September 19, 1999
For further information, please call: (512) 305-9129