31 TAC §15.11
The General Land Office (Land Office) proposes amendments
to 31 Texas Administrative Code (TAC) §15.11, relating to Certification
of Local Government Dune Protection and Beach Access Plans. The Land Office
proposes an amendment to §15.11(a)(10) and the addition of §15.11(b)(3),
relating to the conditional certification of the beach user fee portion of
the dune protection and beach access plan (Plan) for the City of Corpus Christi
(Corpus Christi). The amendment and the addition are proposed to conditionally
certify as consistent with state law the establishment of a beach user fee
in Corpus Christi's Plan. The Land Office also proposes an amendment to §15.11(b)(1)
relating to conditional certification of the special events portion of the
City of Galveston's (Galveston's) Plan under the Land Office rules for management
of the beach/dune system (beach/dune rules), 31 TAC §§15.1 - 15.10.
Pursuant to §61.015 of the Open Beaches Act (Texas Natural Resources
Code, Chapter 61), and §15.3(o) of the Land Office's beach/dune rules,
a local government with jurisdiction over public beaches fronting the Gulf
of Mexico must submit a Plan to the Land Office. The Land Office reviews such
Plans and certifies by rule those Plans that are consistent with the Open
Beaches Act, the Dune Protection Act (Texas Natural Resources Code, Chapter
63), and the beach/dune rules.
Effective December 31, 2001, Corpus Christi annexed several public beaches
previously under the jurisdiction and management of Nueces County. Corpus
Christi amended its Dune Protection and Beach Access Regulations by adopting
Ordinance No. 024733 on January 15, 2002, and Ordinance No. 024734 on January
15, 2002, as amended on February 19, 2002. The ordinances call for the inclusion
of a $6.00 annual beach user fee in the beach user fee portion of Corpus Christi's
Plan. Under Corpus Christi's proposed Plan, a $6.00 annual beach user fee
will be imposed on those beaches within the city limits that require a beach
parking permit. In accordance with §15.8(h) of the beach/dune rules,
Corpus Christi will maintain free public beach access by providing areas where
no fee is charged for parking on or off the beach and for pedestrian access.
Nueces County charges a $10.00/year or $5.00/month beach user fee for a parking
permit on Nueces County beaches. Also, the City of Port Aransas charges a
$6.00/year beach user fee on Port Aransas beaches. Corpus Christi will provide
a system of reciprocity by: (1) recognizing beach parking permit stickers
issued by the City of Port Aransas or Nueces or Kleberg County, if the governmental
entity imposes a beach parking permit fee that equals or exceeds the Corpus
Christi beach parking permit fee and enters into an interlocal cooperation
agreement with Corpus Christi that provides for reciprocal recognition of
beach parking permits; and/or (2) adopting a unified parking permit pursuant
to an interlocal cooperation agreement with Corpus Christi and one or more
of the governmental entities named in (1) of this paragraph.
With the amendment to §15.11(a)(10) and the addition of §15.11(b)(3),
the Land Office conditionally certifies that Corpus Christi's initiation of
the beach user fee is consistent with state law. Texas Natural Resources Code §§61.011(b),
61.022(b), 61.070, and §15.8(c) of the beach/dune rules prohibit the
imposition of a fee to access or use the public beach unless the fee is charged
in exchange for providing beach-related services. Beach user fees cannot exceed
the cost of such public facilities and services and cannot unfairly limit
public access to and use of such beaches. In addition, a fee charged to access
or use the public beach must be reasonable. A reasonable fee is one that recovers
the cost of providing and maintaining beach-related services, taking into
account the cost to the local government of providing public services and
facilities directly related to the public beach. The fee as proposed by Corpus
Christi is reasonable, taking into account that Corpus Christi will have beach
user fee revenue with which to establish and maintain beach-related services
and facilities for the preservation and enhancement of access to and from,
and the safe and healthy use of, the public beaches by the public. The conditional
certification is valid for 180 days, during which time Corpus Christi will
modify its Plan consistent with the Land Office comments submitted to Corpus
Christi on March 19, 2002. Corpus Christi would be required to amend the ordinance
to: (1) include a statement under Section 10-86 of the Corpus Christi Dune
Protection and Beach Access Regulations referencing the $6.00 annual beach
user fee; and (2) with regard to reciprocity and in accordance with 31 TAC §15.8(b),
change the statement under Section 10-86(C) of the Corpus Christi Dune Protection
and Beach Access Regulations from "the City Council may authorize" to "the
City Council shall authorize."
On February 14, 2002, Galveston adopted Ordinance No. 02-012 as an amendment
to its Plan in order to provide for alternative or equivalent beach parking
and access during special events. Texas Natural Resources Code §61.013(a)
and §15.7(h) of the beach/dune rules require a local government to regulate
pedestrian or vehicular beach access and traffic only in a manner that preserves
or enhances the public's existing right to use and have access to and from
the beach. Galveston Ordinance No. 02-012 authorizes Galveston to host special
events that may alter access to public beaches, such as the beaches along
Seawall Boulevard, while providing for alternative beach access and parking.
The ordinance requires Galveston to submit a detailed alternative beach access
and parking plan to the Land Office and the Office of the Attorney General
at least 60 days before any event that will impact beach parking and access.
The Land Office and the Office of the Attorney General will thus have an opportunity
to comment on the preservation and enhancement of access through alternative
arrangements for beach access and parking.
As part of the 180-day proposed conditional certification of the amendment
to Galveston's Plan, Galveston is required to modify its Plan consistent with
the Land Office's comments submitted to Galveston on March 11, 2002. Galveston
would be required to amend Ordinance No. 02-012 to ensure that the public's
right to use and have access to Galveston's beaches is fully preserved or
enhanced. Galveston is required to amend the ordinance to: (1) include a statement
that Galveston will review and consider the comments on the detailed alternative
beach access and parking plan submitted by the Land Office and the Office
of the Attorney General; and (2) specify that if the special event continues
beyond the scheduled ending time, the arrangements for alternative beach access
and parking will remain in effect until beach access and parking are restored
to pre-event status.
Ashley K. Wadick, Deputy Commissioner for the Land Office Resource Management
Program Area, has determined that for the first five-year period the Corpus
Christi beach user fee plan is in effect, there will be little or no fiscal
implications for state government. The addition to Corpus Christi's Plan may
increase state government administrative costs in that Corpus Christi will
be eligible to participate in the beach maintenance fund program. There will
be fiscal implications for Corpus Christi as a result of enforcing or administering
the rule. It is estimated that Corpus Christi will experience an increase
in revenue due to the availability of new funds dedicated to beach-related
services and facilities. Corpus Christi projects revenues from sales of the
Beach Parking Pass to be as follows: FY 2001-02 $100,000; FY 2002-03 $152,000;
FY 2003-04 $155,040; FY 2004-05 $158,141; FY 2005-06 $161,304; and FY 2006-07
$164,530. There are no additional economic costs of compliance for small or
large businesses or individuals in Corpus Christi. However, because Nueces
County has been charging a beach user fee of $10.00/year or $5.00/month on
beaches where the Corpus Christi $6.00 beach user fee will now be charged,
many members of the public will experience a decrease in cost.
Ms. Wadick has also determined that for the first five-year period the
Corpus Christi beach user fee is in effect, the public benefit anticipated
as a result of enforcing or administering the rule will be to provide Corpus
Christi with funding for beach-related services and facilities, as defined
in §15.2 of the beach/dune rules. Nueces County will no longer be maintaining
these beaches, so the Corpus Christi beach user fee will ensure that the amenities
and services to the public will be sustained. Corpus Christi anticipates that
the amount of revenue available from the sale of beach parking permits will
be substantially less than the funding needed to pay for allowable beach-related
services. However, Corpus Christi anticipates that additional funding for
beach-related services should be available from grants, hotel/motel taxes,
and general funds.
Ms. Wadick has determined there will be no fiscal implications for state
or local governments as a result of enforcing the Galveston Plan amendment
for the first five-year period the proposed amendment is in effect. The public
benefit of the proposed rulemaking will be preservation of access to, and
use of, the public beaches of Galveston during special events. There will
be no economic cost to the public for the use of alternative means of beach
access during special events, and neither large nor small businesses will
be impacted by the proposed amendment.
The Land Office has determined that the proposed rule changes will have
no local employment impact that requires an impact statement pursuant to Government
Code §2001.022.
The proposed amendments to certify Corpus Christi's beach user fee plan
and Galveston's Plan amendment are subject to the Texas Coastal Management
Program (CMP), 31 TAC §505.11(a)(1)(J), relating to the Actions and Rules
Subject to the Coastal Management Program, and must be consistent with the
applicable CMP goals and policies under §501.14(k) of this title, relating
to Construction in the Beach/Dune System. The Land Office has reviewed these
proposed actions for consistency with the CMP goals and policies in accordance
with the regulations of the Coastal Coordination Council (Council). The proposed
actions are consistent with the Land Office's beach/dune rules that the Council
has determined to be consistent with the CMP. Consequently, the Land Office
has determined that the proposed actions are consistent with the applicable
CMP goals and policies.
The Land Office has prepared two takings impact assessments for the proposed
amendments, pursuant to Texas Government Code §2007.043(b) and §2.18
of the Attorney General's Private Real Property Rights Preservation Act Guidelines.
The following is a summary of the takings impact assessments.
The stated purposes of this rulemaking are: (1) to conditionally certify
as consistent with state law the beach user fee portion of Corpus Christi's
Plan, as amended by Ordinance No. 024733, passed January 15, 2002; and Ordinance
No. 024734, passed on January 15, 2002, and amended on February 19, 2002,
which establish beach user fees on public beaches in Corpus Christi; and (2)
to conditionally certify as consistent with state law the amendment to Galveston's
Plan, Ordinance No. 02-012, passed February 14, 2002, which enables Galveston
to provide alternative or equivalent beach parking and access during special
events. The proposed amendments achieve the stated purposes in accordance
with the Open Beaches Act (Texas Natural Resources Code, Chapter 61). The
proposed amendments will not adversely affect the interests of any real private
property owner. The Land Office has determined that the proposed rulemaking
will not result in a taking of private property. To receive a copy of the
takings impact assessments, please send a written request to Melinda Tracy,
Texas Register Liaison, Texas General Land Office, P.O. Box 12873, Austin,
Texas 78711-2873; facsimile number (512) 463-6311; e-mail address melinda.tracy@glo.state.tx.us.
Comments may also be submitted to Ms. Melinda Tracy. Comments must be received
no later than 5:00 p.m., 30 days after the proposed amendments are published.
Copies of Corpus Christi's and Galveston's Plans and the Plan amendments are
available from the cities and from the Land Office Archives Division, Texas
General Land Office, P.O. Box 12873, Austin, Texas 78711-2873, phone number
(512) 463-5277.
The amendments are proposed under Texas Natural Resources Code,
Chapter 61, which gives the Land Office the authority to preserve and enhance
the public's right to use and have access to and from Texas' public beaches.
Specifically, the amendment is proposed under Texas Natural Resources Code §61.011(d),
which authorizes the Land Office to adopt rules related to the certification
of beach access and use plans; §61.015(b), which provides that certification
of local government plans shall be by adoption into the beach/dune rules;
and §61.022(c), which requires that the Land Office certify consistency
of vehicular plans and fees by adoption into the beach/dune rules.
Texas Natural Resources Code §§61.011, 61.013(a), 61.015, 61.022,
and 61.070 are affected by the adoption of these amendments.
§15.11.Certification of Local Government Dune Protections and Beach Access Plans.
(a)
Certification of local government plans. The following
local governments have submitted plans to the General Land Office which are
certified as consistent with state law:
(1) - (9)
(No change.)
(10)
City of Corpus Christi (adopted August 10, 1993)
, with conditional certification of the beach user fee portion of the plan,
adopted by Corpus Christi by ordinance on January 15, 2002, and amended on
February 19, 2002, as authorized under subsection (b)(3) of this section
;
(11) - (13)
(No change.)
(b)
Conditional certification of local government plans. The
following local governments have submitted plans to the General Land Office
which are conditionally certified as consistent with state law.
(1)
City of Galveston (adopted August 12, 1993, amended February
9, 1995, [
and amended
] June 19, 1997
, and February 14 2002
.
(A) - (B)
(No change.)
(C)
The conditional certification of the special
events portion of the City of Galveston's plan, adopted by the City of Galveston
by ordinance on February 14, 2002, is valid for 180 days, during which time
the City of Galveston will modify the special events portion of its plan to
be consistent with the General Land Office comments submitted to the City
of Galveston (March 11, 2002).
(2)
(No change.)
(3)
City of Corpus Christi beach user fee
portion of its dune protection and beach access plan, adopted by the City
of Corpus Christi by ordinance on January 15, 2002, and amended on February
19, 2002. This certification of the beach user fee portion of the City of
Corpus Christi's dune protection and beach access plan is valid for 180 days,
during which time the City of Corpus Christi will modify the beach user fee
portion of its plan consistent with the General Land Office comments submitted
to the City of Corpus Christi (March 19, 2002).
(c) - (e)
(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 March 29, 2002.
TRD-200202056
Larry Soward
Chief Clerk
General Land Office
Earliest possible date of adoption: May 12, 2002
For further information, please call: (512) 305-9129