31 TAC §15.5
The General Land Office adopts an amendment to §15.5
relating to Beachfront Construction Standards with changes to the text as
published in the August 13, 1999, issue of the
Texas
Register
(24 TexReg 6246). The proposed amendment to §15.5 relating
to Beachfront Construction Standards is also available through the internet
at the following address: http://www.sos.state.tx.us/texreg/archive/August131999/PROPOSED/natural-resources-and-conservation.html#770
This amendment addresses problems created by the erosion of beaches fronting
the Gulf of Mexico and the landward migration of the line of vegetation in
developed areas. The public in Texas has the free and unrestricted right of
access to and use of the public beach, which is typically the area from the
line of mean low tide to the natural line of vegetation.
In September 1998, Tropical Storm Frances caused erosion and landward
movement of the public beach and damage to beachfront houses along the upper
Texas coast. The erosion caused a number of the damaged houses in Galveston
and Brazoria counties to partially encroach on the public beach. The Land
Office's existing rules for managing the beach/dune system do not permit the
repair of structures that encroach on the public beach in whole or in part.
This amendment clarifies when and how structures that cross the line of
vegetation and encroach on the public beach may be repaired and maintained.
This amendment is intended to facilitate the structural repair of sound structures.
This amendment does not authorize the construction of new structures and amenities
seaward of the line of vegetation, nor does the amendment 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.
The adopted amendment includes a new paragraph (3) amending §15.5(c),
relating to Encroachments on public beaches. The amendment as adopted also
incorporates editorial changes that delete proposed language amending §15.5(c)(1)
and (2), relating to prohibition of construction on the public beach and construction
landward of the public beach, which stated that paragraphs (1) and (2) applied
except as provided under the amendment described under proposed paragraph
(3). In place of the proposed language amending paragraphs (1) and (2), the
following sentence has been added to paragraph (3), relating to repair of
existing structures on the public beach: "Pursuant to this paragraph, a local
government may authorize the repair of an existing structure that crosses
the line of vegetation and encroaches on a public beach notwithstanding the
provisions of paragraphs (1) and (2) of this subsection."
The adopted amendment also includes a new §15.5(c)(3)(F) which provides
that a local government may only authorize the repair of structures pursuant
to this amendment prior to June 1, 2000, and that any dune protection permits
or beachfront construction certificates issued under this amendment will be
valid for no more than 12 months from the date of issuance. These provisions
are designed to limit the time period when this amendment may be applied.
This amendment is intended to address the existing structures that cross the
line of vegetation and that are in need of repair. If additional structures
that cross the line of vegetation require repairs following some future storm
event, the Land Office will consider the need for further rulemaking at that
time.
In order to issue permits pursuant to this amendment, local governments
are not required to amend their local beach/dune plans or present plan amendments
to the Land Office for certification, as required under §15.3(o). Due
to the temporary and limited nature of the amendment, the Land Office chooses
to waive the requirements for amendment and certification in order to facilitate
implementation of the amendment. When implementing this amendment, if a local
government amends its local beach/dune plan in a way that incorporates additional
provisions that will be implemented as an ongoing part of the local government's
beach/dune program following the expiration of this amendment, then the local
government must submit the amendment for certification as required. However,
the Land Office's certification is not otherwise required in order for a local
government to implement §15.5(c)(3).
SUMMARY OF THE AMENDMENT
This amendment authorizes the repair of an existing structure if the structure
is not subject to imminent collapse and if there is no enforcement action
pending under the Land Office's beach/dune rules (Texas Administrative Code,
Title 31, Chapter 15, Subchapter A), 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. The beach/dune rules currently prohibit any repairs
to structures that cross the line of vegetation and encroach on the public
beach. Under the amendment, a local government may permit the repair of a
structure that crosses the line of vegetation; however, a local government
is 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 the proposed amendment; repairing a structure previously built,
repaired, or renovated in violation of the 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. These limitations on a local government's authority
to issue a beachfront construction certificate or dune protection permit for
repair of a structure that crosses the line of vegetation are existing law
and are necessary to ensure compliance with the provisions of §15.4,
relating to Dune Protection Standards, §15.5, relating to Beachfront
Construction Standards, and §15.6, relating to Concurrent Dune Protection
and Beachfront Construction Standards. A slab or other paving beneath the
footprint of a structure may be replaced by wooden decking, brick pavers,
or other pervious materials. While the amendment prohibits the repair or construction
of a slab or other impervious surface of concrete or other impervious materials,
the amendment does not require that an owner remove an existing slab or other
impervious surface when no repairs to the slab or other impervious surface
is proposed. 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 consistent with the standards
and requirements of the beach/dune rules.
If repair of a structure under the amendment includes a proposal to use
soil or sediment within the beach/dune system, 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 seaward of the line of vegetation. 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, abuts
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. The
construction of restored dunes and planting of dune vegetation will not affect
the determination of the natural line of vegetation or the boundary of the
public beach.
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 amendment.
The statements must be signed by the owner of the property, notarized, and
filed with the local government, the 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.
In addition to written comments on the proposed amendment, the Land Office
received requests from two individuals and petitions including the names of
more than 25 persons requesting a public hearing on the proposed amendment
to §15.5. In response to these requests, the Land Office held a public
hearing on January 21, 2000, at 6:30 p.m. at the University of Houston--Clear
Lake in Clear Lake, Texas.
RESPONSE TO COMMENTS RECEIVED
Comments in support of the proposed amendment were received from the Bermuda
Beach Improvement Committee, the City of Galveston, Galveston County, Galveston
County Beach Erosion Task Force, Surfrider Foundation, West Beach Grand Homeowners'
Association, West Galveston Island Property Owner's Association, and several
individuals. Comments opposing the proposed amendment were submitted by several
individuals.
Comment: Pursuant to Texas Government Code §2001.030, one commenter
requested that the Land Office provide a concise statement of the principle
reasons for and against adoption of the proposed amendment.
Agency Response: Reasons for adopting the amendment include the need to
provide the owners of properties that partially cross the line of vegetation
a legal means to repair their structures. Reasons against adoption include
that the amendment will allow the repair of structures that encroach on the
public beach easement, that structures that are seaward of the line of vegetation
are more exposed to wind and wave action during storms and, consequently,
more likely to be damaged and more likely to pose a threat to life and property,
and that structures that cross the line of vegetation are likely to impair
dune formation.
Comment: Two commenters requested that the Land Office withdraw and reconsider
the proposed amendment, stating that the proposed amendment would make it
more difficult for property owners to maintain their structures.
Agency Response: The Land Office disagrees with these requests. The amendment
is designed to facilitate the repair of structures that cross the line of
vegetation and encroach on a public beach. The existing regulations do not
allow for the repair of structures that cross the line of vegetation. No change
was made in response to this comment.
Comment: One commenter opposed the proposed amendment, stating that the
amendment will benefit property owners that are currently disobeying and flaunting
the law and that structures that are partially seaward of the line of vegetation
endanger inland structures and property values due to the structures' encroachment
on the public beaches and potential to damage other structures during storms.
The commenter also noted that all persons who purchased coastal property after
October 1, 1986, should have received a notice from the seller informing them
that structures seaward of the line of vegetation are subject to removal by
the state.
Agency Response: The Land Office disagrees that the amendment will benefit
property owners that are currently disobeying and flaunting the law. The following
clauses of paragraph (3)(A) prohibit a local government from authorizing repairs
where a property owner has "disobeyed or flaunted" the law: (iii), relating
to proposals to increase the footprint of a structure; (v), relating to proposals
to construct, repair, or maintain an erosion response structure; (vi) relating
to structures previously built, repaired, or renovated in violation of the
beach/dune rules; and (vii), relating to proposals to use non-beach quality
soil or sediment. The Land Office agrees that, while there is the potential
that structures that cross the line of vegetation may break apart in a storm
and damage other structures, this amendment is intended to encourage property
owners to repair and maintain structures partially seaward of the line of
vegetation so as to minimize and mitigate the potential for such structures
to pose hazards during or after storms. The Land Office also agrees that all
purchasers of coastal property after October 1, 1986, should have received
notice regarding the public beach easement. No change was made in response
to these comments.
Comment: One commenter requested that the Land Office withdraw the proposed
amendment and instead implement a policy similar to the policy adopted by
Texas Attorney General Jim Mattox following Hurricane Alicia in 1983.
Agency Response: The Land Office disagrees. Prior to 1991, the Open Beaches
Act was implemented and enforced by the Attorney General only through litigation.
Following Hurricane Alicia, the Legislature amended the Open Beaches Act in
1991 and established the Land Office's beach/dune program in response to a
perceived need for a more active state role in protecting coastal dunes and
public beaches. The 1991 amendments also sought to avoid some of the uncertainty
regarding the Open Beaches Act that was apparent following Hurricane Alicia.
Furthermore, some elements of the post-Alicia policy are less stringent than
this amendment, some elements are more stringent. No change was made in response
to this comment.
Comment: Several commenters stated that the proposed amendment represents
an inappropriate transfer of permitting authority from the local governments
to the Land Office.
Agency Response: The Land Office disagrees. The amendment broadens the
existing relationship between local governments and the Land Office by temporarily
expanding the permitting authority of the local governments to specifically
address permitting needs identified by local governments and coastal property
owners. Under the program established by the Legislature, certificate and
permit applications are submitted to local governments, the Land Office and
Office of the Attorney General comment on the consistency of applications
with the beach/dune rules and with a local government's beach/dune plan, and
the certificate and/or permit is issued by the local government.
See
Texas Natural Resources Code §61.015. The amendment does not
alter the permitting scheme established by the Legislature. No change was
made in response to these comments.
Comment: One commenter suggested that property owners should be allowed
to maintain any structures that are not a threat to public safety.
Agency Response: The Land Office disagrees. The Open Beaches Act prohibits
"any obstruction, barrier, or restraint that will interfere with the free
and unrestricted right of the public, individually and collectively, lawfully
and legally to enter or to leave any public beach or to use any public beach."
Texas Natural Resources Code §61.013(a). No change was made in response
to this comment.
Comment: One commenter stated that the terms "seaward of the vegetation
line," "beyond the vegetation line," and "straddling the vegetation line"
are not used consistently in the proposed amendment.
Agency Response: The Land Office disagrees. Throughout the text of the
amendment, the term "crosses the line of vegetation" has been consistently
used to describe the applicability of the amendment. In general, a structure
that crosses the line of vegetation, but is not completely seaward of the
line of vegetation, may be repaired under the amendment if the proposed repairs
are otherwise consistent with the amendment. No change was made in response
to this comment.
Comment: Two commenters stated that attempts to tie the permitting of
repairs to the vagueness of the line of vegetation or the Land Office's desire
to remove hard structures from the public beach should not be allowed. Another
commenter stated that the proposed amendment conflicts with §61.016 and §61.017(b)
of the Open Beaches Act, relating to boundaries for areas with no marked vegetation
line and line of vegetation unaffected by certain conditions.
Agency Response: The Land Office disagrees with these statements. As defined
by statute and by common law, the line of vegetation is typically the landward
boundary of the public beach; but, the public beach may include a larger contiguous
area to which the public has acquired a right of use or easement to or over
by prescription, dedication, or estoppel, or has retained a right by virtue
of continuous right in the public since time immemorial as recognized by law
or custom. Texas Natural Resources Code §61.013;
Seaway Company v. Attorney General
, 375 S.W.2d 923 (Tex. Civ. App.
- Houston 1964). The Legislature has also stipulated how the line of vegetation
is to be determined where it is not clearly marked or where it has been disturbed
by artificial changes. Texas Natural Resources Code Annotated §61.016
and §61.017. The Land Office will implement this amendment consistent
with §61.016 and §61.017. Furthermore, it is appropriate to prohibit
the construction, repair, or maintenance of erosion response structures and
other hard structures. Such structures can adversely affect adjacent shores,
properties, and the beach seaward of the structures, and on eroding shorelines,
such structures can significantly block beach access and/or present an imminent
threat to public safety. Local governments and the Land Office have been given
the responsibility of comprehensively addressing the effects of erosion response
structures on the public beach and on adjacent shores and properties. No change
was made in response to these comments.
Comment: One commenter requested that in proposed paragraph (3) all references
to structures that partially cross the line of vegetation be replaced with
references to structures that cross 10% or more of the line of vegetation.
Agency Response: The Land Office disagrees. Determination of the line of
vegetation is an essential question of fact under the beach/dune program.
The amendment applies whether 1% or 99% of a structure crosses the line of
vegetation. Implementing this suggestion would limit the scope of the amendment
and deny some property owners the opportunity to repair their structures.
Furthermore, determining whether a structure crosses 10% or more of the line
of vegetation would add unneeded complexity to a local government's determination
of whether a structure may be repaired. No change was made in response to
this comment.
Comment: One commenter asked for an explanation of who determines whether
a structure is "structurally sound."
Agency Response: Under the beach/dune program, beachfront construction
certificates and dune protection permits are issued by the local governments.
The Land Office and the Office of the Attorney General comment on applications
for certificates and permits. Thus, a local government will determine whether
a structure is "structurally sound." No change was made in response to this
comment.
Comment: One commenter stated that allowing repairs to structures where
the line of vegetation has eroded beneath the structure may be a violation
of the National Flood Insurance Program and that structures seaward of the
line of vegetation may be in violation of the construction standards for windstorm
insurance.
Agency Response: The Land Office disagrees. Erosion of the line of vegetation
and any resulting change in the base flood elevation for a structure may not
necessarily prohibit repair of the structure. Any repairs or construction
must comply with the Federal Emergency Management Agency's regulations governing
construction in flood hazard areas, as stated in §15.6(e) of the beach/dune
rules, relating to construction in flood hazard areas, and the local floodplain
ordinance or order. However, compliance with the beach/dune rules and this
amendment does not relieve a property owner of the duty and responsibility
of complying with other relevant and applicable local, state, and federal
laws. In addition, while erosion of the beach may undermine a house and expose
it to wave action during storms, being partially seaward of the line of vegetation
should not increase the danger to structures during windstorms. No change
was made in response to this comment.
Comment: One commenter opposed the proposed moratorium on issuing permits
for the repair of structures that cross the line of vegetation when there
is an enforcement action pending, stating that this prohibition denied property
owners due process on consideration of their application and questioning,
when a property is referred for enforcement and enforcement is declined, whether
a local government may authorize repair of the structure.
Agency Response: The Land Office disagrees that the proposed moratorium
is a denial of due process. When an enforcement action is pending regarding
a property, it is appropriate to suspend authorizing further modifications
to the property until the enforcement action is resolved. The property owner's
objections to the moratorium may be raised within the enforcement process.
When a property is referred for enforcement and enforcement is declined, a
local government may authorize the repair of a structure if the proposed repairs
comply with the standards provided in the amendment. No change was made in
response to this comment.
Comment: Two commenters requested a rule establishing a moratorium on the
condemning or taking away of any damaged structure seaward of the vegetation
line until July 1, 2005.
Agency Response: The Land Office lacks the authority to implement such
a moratorium. This is a matter within the enforcement discretion of the Attorney
General and cannot be limited under the Land Office's beach/dune rules. Furthermore,
the Land Office has not and cannot on its own condemn or remove structures.
Enforcement of the Open Beaches Act may only be carried out by the Attorney
General or other public prosecutor through the filing of a suit as described
by §61.018 of the Open Beaches Act. In addition, changes to the beach/dune
system during the five storm seasons between now and July 1, 2005, may require
enforcement. No change was made in response to this comment.
Comment: Two commenters requested that the prohibition on the use of loam
or a 60/40 sand/clay mix under proposed paragraph (3)(A)(vii) be revised to
allow the use of such fill materials.
Agency Response: The Land Office disagrees. Paragraph (3)(A)(vii) requires
that fill material used within the beach/dune system be of an acceptable mineralogy
or grain size when compared to the sediments found on the site. Such fill
material is required to construct restored dunes that also must be continuous
with any surrounding naturally formed dunes and must approximate the natural
position, contour, volume, elevation, vegetative cover, and sediment content
of any naturally formed dunes in the proposed dune restoration area. The Land
Office has seen that, when a 60/40 sand/clay mix is used in the beach/dune
system, the clay hardens and that the fill material does not contribute to
restoration of dunes that approximate the natural position, contour, volume,
elevation, and vegetative cover of naturally formed dunes in the surrounding
area. The Land Office does, however, recognize a need to clarify the provisions
of the amendment relating to the use of sand, soil, or sediment within the
beach/dune system. Accordingly, subparagraph (A)(vii) of the amendment has
been revised to delete the word "sand," thus limiting the prohibition to the
use of unacceptable soil or sediment within the beach/dune system, and subparagraph
(D)(i) of the amendment has been revised to delete the words "soil or sediment,"
thus indicating that only acceptable beach quality sand may be used to restore
dunes seaward of the line of vegetation.
Comment: Two commenters stated that the limitation in proposed paragraph
(3)(B), that a local government may only authorize the repair or construction
of a septic system landward of the line of vegetation, establishes beach properties
as a separate class and represents a "taking" of private property. Another
commenter stated that the requirement that properties to be repaired have
a functioning septic system or sewer connection would force owners to move
structures off otherwise viable properties. One commenter supported the proposed
limitation.
Agency Response: The Land Office disagrees with the comments in opposition.
As a matter of public health, it is appropriate to prohibit the repair of
structures where septic or sewer systems are not available or cannot safely
be installed. Septic systems must be located landward of the line of vegetation
in order to protect the systems from shoreline erosion and to protect the
beachgoing public. Section 15.4(c)(10) of the beach/dune rules provides that
septic systems not be located seaward of any structure serviced by the septic
system. Leaking septic systems adjacent to a public beach can pose a threat
to the health, safety, and welfare of the beachgoing public. It is the responsibility
of a property owner to evaluate whether a property without sewer or septic
service should be moved inland. No change was made in response to these comments.
Comment: One commenter stated that the proposed amendment inadequately
addressed the "takings" impact to homeowners brought about by impediments
to repairs and the reconnection of sewage, and utility services to structures
landward of or straddling the line of vegetation. Another commenter stated
that the proposed permitting restrictions on properties seaward of the line
of vegetation will destroy the rights of property owners to maintain viable
properties and will result in a de facto "taking" of private property.
Agency Response: The Land Office disagrees with these statements. The amendment
is designed to facilitate the repair of structures that cross or straddle
the line of vegetation and do not apply to the repair of structures landward
of the line of vegetation where such repairs have been and will be within
the local government's jurisdiction to authorize. Seaward 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.
Seaway Company
v. Attorney General
, 375 S.W.2d 923 (Tex. Civ. App. - Houston, 1964).
The amendment expands the rights of property owners to undertake certain repairs
of structures that are not currently authorized under the beach/dune rules.
Where there is no existing right to right to repair and maintain property,
there can be no "taking" of such a right. No change was made in response to
these comments.
Comment: Several commenters requested that homes in Bermuda Beach, in the
City of Galveston on the west end of Galveston Island, that cross the line
of vegetation be allowed to connect to the sewer connections that have been
installed since Tropical Storm Frances.
Agency Response: The Land Office does not disagree; however, each property
to connect to the City's sewer system must be evaluated on an individual basis
and otherwise comply with the standards and requirements under this amendment.
No change was made in response to this request.
Comment: Two commenters requested that proposed paragraph (3)(C), relating
to the repair of amenities, be revised to eliminate the requirement that an
amenity may only be repaired if it is less than 50% damaged.
Agency Response: The Land Office disagrees. The 50% damage rule is an accepted
element of hazard response and mitigation. No change was made in response
to this comment.
Comment: One commenter stated that the proposed amendment should not require
the removal of hard structures such as driveways, walkways, and riprap, as
the removal represents a cost of preparing private property for public use
and such a cost should be borne by the State.
Agency Response: The Land Office disagrees. The amendment requires the
removal of non-essential paving and other impervious surfaces only where an
amenity is to be repaired. §15.5(c)(3)(C). The Open Beaches Act prohibits
"any obstruction, barrier, or restraint that will interfere with the free
and unrestricted right of the public, individually and collectively, lawfully
and legally to enter or to leave any public beach or to use any public beach."
Texas Natural Resources Code §61.013(a). Driveways, walkways, impervious
paving materials, and other debris that become seaward of the line of vegetation
as a result of shoreline erosion and encroach on the public beach are the
responsibility of the property owner. Each person is individually responsible
for the property that they own and for any structures or improvements to such
property. In public areas and in hazardous areas, such as areas that are subject
to coastal flooding, property owners have a responsibility to maintain their
property, and any structures or improvements on their property, in a manner
that does not endanger the public health, safety, and welfare. No change was
made in response to this comment.
Comment: One commenter stated that the proposed notarized statement required
to be submitted with an application to repair a structure that crosses the
line of vegetation forces property-owners to relinquish property rights without
compensation.
Agency Response: The Land Office disagrees. The statement relinquishes
no property rights. The statement simply acknowledges the existing legal relationship
between beachfronting property and the public beach. The statement is based
on the notice to purchasers of coastal property required under Texas Natural
Resources Code §61.025(a) which sellers of coastal property have been
required to provide to purchasers since October 1, 1986. No change was made
in response to this comment.
Comment: One commenter recommended that the statement also require that
property owners acknowledge that the state is the fee title owner of the wet
beach, that is, the portion of the beach washed by the daily tides and waves.
Agency Response: The Land Office disagrees that there is a dispute as to
the fee ownership of the wet beach. While the wet beach that is visible on
a visit to the beach does indicate the recent reach of the tides and waves,
the boundary of state-owned submerged lands is determined through a scientific
calculation of the average tides. The state, generally, owns submerged lands
seaward of the line of mean high tide or mean higher high tide, and portions
of the wet beach landward of these average tide lines may be on private property.
The area between the landward boundary of the state-owned submerged lands
and the natural line of vegetation is, generally, private property but it
is subject to a public right of use or easement as determined by prescription,
dedication, presumption, or by virtue of continuous right in the pubic since
time immemorial. No change was made in response to this comment.
Comment: One commenter requested that the public be provided an additional
opportunity to comment on any need to extend the effective term of the proposed
amendment beyond June 1, 2000.
Agency Response: The Land Office acknowledges the public's interest in
commenting on any extension of the effective term. Prior to expiration of
the amendment, the public is welcome to submit comments to the Land Office
describing the need and basis for extending the effective term of the amendment.
The amendment, however, is designed to address the existing need to repair
structures damaged during Tropical Storm Frances. The Land Office anticipates
that the structures requiring repair will be able to receive certificates
and permits prior to June 1, 2000, and that there will be no need to extend
the effective term of the amendment. No change was made in response to these
comments.
Comment: One commenter stated that Section VIII of the takings impact assessment
for the proposed amendment does not comment on compensation for the use of
property claimed by erosion for public use or in cases where no viable upland
property remains.
Agency Response: The Land Office disagrees that further comment is required.
Texas courts have held that compensation is not owed where upland property
erodes and becomes subject to the public beach easement.
Feinman v. State
, 717 S.W.2d 106, 108-111 (Tex. App. - Houston, 1986); Matcha v. Mattox
, 711 S.W.2d 95, 99-101 (Tex. App.
- Austin, 1986). A taking occurs where property is occupied or possessed through
governmental action. A taking does not occur where a property is diminished
through natural processes. No change was made in response to this comment.
Comment: One commenter stated that there are numerous costs associated
with the proposed amendment and that the Land Office's denial of such costs
is "blatantly false."
Agency Response: Without a more specific identification of such costs,
it is difficult for the Land Office to respond to this comment in detail.
As stated in the preamble to the proposed amendment, the anticipated economic
cost to persons who are required to comply with this amendment will be, roughly,
equivalent to the cost of applying for a beach/dune certificate or permit.
The Land Office has determined that the costs of complying with this amendment
is more than offset by the benefit of allowing repairs, that are otherwise
prohibited, to structures that cross the line of vegetation. No change was
made in response to this comment.
Comment: One commenter stated that the proposed amendment constitute a
taking of property by devaluation, loss of income and habitability, and loss
of abode.
Agency Response: The Land Office disagrees. The amendment increases the
authority of local governments to approve the repair and maintenance of structures
that cross the line of vegetation. The amendment is designed to facilitate
the repair of structures that cross or straddle the line of vegetation and
does not apply to the currently permissible repair of structures landward
of the line of vegetation. Seaward 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 typically the area from the line of mean low tide to the natural
line of vegetation. The property rights of beachfronting property owners are,
and have been, subject to the public's property right in the public beach
easement. Although individuals may have a private property interest that extends
across the beach to the boundary of state-owned submerged land, that portion
of the beach between the line of vegetation and the boundary of state-owned
submerged land is subject to the public beach easement. As the Legislature
has stated: "It is an offense against the public policy of this state for
any person to create, erect, or construct any obstruction, barrier, or restraint
that will interfere with the free and unrestricted right of the public, individually
and collectively, lawfully and legally 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 . . . ." Texas Natural Resources Code §61.013(a). Beachfronting
property cannot be managed in a manner that obstructs or restrains public
access to or use of a public beach. Finally, devaluation of a property, loss
of habitability, or loss of abode as a result of coastal erosion is the result
of natural process, not governmental action, and there must be governmental
action in order for there to be a taking. No change was made in response to
this comment.
Comment: One commenter stated that the Land Office has not adopted rules
of practice as required by the Administrative Procedures Act, Texas Government
Code §2001.004.
Agency Response: The Land Office's rules of practice are set forth under
chapters 1, 2, and 4 of this title. No change was made in response to this
comment.
Comment: One commenter commented that, since 1993, the Land Office has
not indexed its rules as required by Texas Government Code §2001.005.
Agency Response: The Land Office has complied with the Administrative Procedures
Act by filing its rules with the Office of the Secretary of State. No change
was made in response to this comment.
Comment: One commenter stated that the Land Office has neither informed
the public of the opportunity for interested persons to submit a petition
for the adoption of rules provided under Texas Government Code §2001.021,
the opportunity for comment on a draft impact analysis for a major environmental
rule provided under §2001.0225(c)(7), the opportunity to request a hearing
provided under §2001.029, nor the opportunity to file suit contesting
a rule as provided under §2001.035.
Agency Response: The Land Office welcomes public input regarding improvement
of its rules; however, the Land Office has no duty or obligation to inform
the public regarding these opportunities. Furthermore, as noted in the preamble
to the proposed amendment, the Land Office determined that the proposed amendment
did not meet the statutory standard for a major environmental rule. No change
was made in response to these comments.
Comment: One commenter stated that the proposed amendment may constitute
a major environmental rule as provided under Texas Government Code §2001.0225.
Agency Response: The Land Office disagrees. The amendment does 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 amendment does 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, nor is the amendment adopted solely under the general
powers of the Land Office. No change was made in response to this comment.
Comment: One commenter stated that, while the Land Office does place the
notice in the
Texas Register
required under
Texas Government Code §2001.024, the Land Office "does not comply with
required provision that might help entities and persons impacted by any proposed
rule."
Agency Response: The Land Office disagrees. The Land Office complies with
the provisions of the Administrative Procedures Act for informing the public
regarding proposed rules and rule amendments. In addition, the Land Office
will gladly answer the public's questions regarding any proposed rules or
rule amendments. No change was made in response to this comment.
Comment: One commenter stated that the Land Office has not complied with
the provision for Legislative Review under Texas Government Code §2001.032.
Agency Response: The Land Office has complied with the provision for Legislative
Review when conducting rulemakings. No change was made in response to this
comment.
Comment: One commenter stated that the Land Office does not, when adopting
a rule, include a summary of comments received in the reasoned justification
of a rule or rule amendments as required by Texas Government Code §2001.033.
Agency Response: The Land Office disagrees. The response to this comment
and the other comments received on the proposed rule have been included in
this reasoned justification for the rule amendment. No change was made in
response to this comment.
Comment: One commenter stated that the Land Office has not explained application
of Texas Government Code §2001.037, relating to Official Text of Rule.
Agency Response: The Land Office has not previously been asked to explain
this provision. Section 2001.037 provides that, in the event of a dispute
regarding the official text of an agency rule, the official text of an agency
rule is the text on file with the Secretary of State and not the text published
in the
Texas Register
or on file with the
agency. No change was made in response to this comment.
TEXAS COASTAL MANAGEMENT PROGRAM
This rule amendment is subject to the Texas Coastal Management Program
(CMP) and must be consistent with all applicable CMP goals and policies. The
amendment complies 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 amendment complies 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 amendment complies with §501.14(l) of this
title, relating to Development in Coastal Hazard Areas, by providing for compliance
with the National Flood Insurance Program.
TAKINGS IMPACT ASSESSMENT
The Land Office has prepared a takings impact assessment for this adopted
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. Melinda Tracy, Legal Services, Rm. 626,
General Land Office, P.O. Box 12873, Austin, Texas 78711-2873, facsimile 512/463-6311.
STATUTORY AUTHORITY
This amendment is adopted under Texas Natural Resources Code §61.011(d),
which authorizes the 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 Land Office
to promulgate rules for the identification and protection of critical dune
areas; Texas Natural Resources Code §33.601, which authorizes the Land
Office to adopt rules on coastal erosion; and Texas Water Code §16.321,
which authorizes the 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 adopted amendment.
§15.5.Beachfront Construction Standards.
(a)
Local government certification of beachfront construction.
This section provides the standards local governments shall follow when preparing
that portion of the dune protection and beach access plan specifically related
to issuing or conditioning beachfront construction certificates. In general,
within its jurisdiction, a local government shall not allow diminution of
the size of public beaches and shall preserve and enhance public access between
public beaches and public roads lying landward. A local government certification
shall consist of one of two affirmative findings: an affirmative finding by
a local government that the proposed construction is consistent with the beach
access portion of a local government's dune protection and beach access plan
and does not encroach upon the public beach, nor does it interfere with, or
otherwise restrict, the public's right to use and have access to and from
the public beach; or an affirmative finding that the proposed construction
is inconsistent with the beach access portion of a local government's dune
protection and beach access plan. The beach access portion of the local government's
dune protection and beach access plan shall provide that beachfront construction
will not adversely affect or allow encroachments upon the public beach or
interfere with or otherwise impair the public's right to use and have access
to and from the public beach.
(b)
Prohibition of certification. Local governments shall not
issue a certificate authorizing beachfront construction if the local government
determines that the construction:
(1)
reduces the size of the public beach in any manner;
(2)
closes or otherwise impairs any existing public beach
access point unless the local government simultaneously provides or requires
the permittee to provide equivalent or better public access; or
(3)
includes a proposal to build a concrete slab or other
impervious surface within 200 feet of the line of vegetation or within the
eroding area boundary (if such a boundary is established in the local beach/dune
plan), whichever distance is greater. Local governments may authorize construction
of a concrete slab or other impervious surface beneath a habitable structure
elevated on pilings provided the slab will not extend beyond the perimeter
of the structure and will not be structurally attached to the building's foundation.
Local governments shall not authorize the construction, outside the perimeter
of a habitable structure, of a concrete slab or other impervious surface whose
area exceeds 5.0% of the footprint of the habitable structure. The use of
permeable materials such as brick pavers, limestone, or gravel is recommended
for drives or parking areas.
(c)
Encroachments on public beaches.
(1)
Prohibition of construction on the public beach. A local
government is prohibited from issuing a certificate 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. 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.
(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 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. Pursuant
to this paragraph, a local government may authorize the repair of an existing
structure that crosses the line of vegetation and encroaches on a public beach
notwithstanding the provisions of paragraphs (1) and (2) of this subsection.
(A)
Local governments shall not issue a certificate or permit
authorizing repair of a structure that 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 subchapter or the local government plan or without an
approved certificate or permit; or
(vii)
include a proposal to use 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 dune protection 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 crosses the line of vegetation and encroaches
on a public beach or that is attached to a structure that 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 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 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);
(F)
A local government may only authorize the repair of structures
pursuant to the provisions of this paragraph from the effective date of this
paragraph through June 1, 2000. Notwithstanding any other provision under
this subchapter, a local government's dune protection permits or beachfront
construction certificates issued under this paragraph shall be valid for no
more than 12 months from the date of issuance. A local government shall not
renew a dune protection permit or beachfront construction certificate issued
under this paragraph.
(d)
Dedication of new beach access points.
(1)
Pursuant to the authority provided in the Open Beaches
Act, §61.015(g), and as a condition of beachfront construction certification
as to consistency with a local government's plan, a local government shall
require a permittee to dedicate to the public new public beach access or parking
area(s), where necessary, for consistency with the beach access and use, vehicular
control, or beach user fee provisions of the pertinent state-approved dune
protection and beach access plan. Such provisions shall incorporate the standards
for pedestrian and vehicular access established in §15.7 of this title
(relating to Local Government Management of the Public Beach).
(2)
A local government shall require a permittee to dedicate
an access area if it issues a certificate allowing a permittee to conduct
activities which will impair access to and from the beach in any manner. Such
a dedicated access area shall provide access equivalent to or better than
the access impaired by the permittee's activity and shall be consistent with
the pertinent provisions regarding beach access and use, vehicular controls.
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 February 8, 2000.
TRD-200000980
Larry Soward
Chief Clerk
General Land Office
Effective date: February 28, 2000
Proposal publication date: August 13, 1999
For further information, please call: (512) 305-9129