31 TAC §15.11
The General Land Office (Land Office) adopts amendments to
31 Texas Administrative Code (TAC) §15.11, relating to Certification
of Local Government Dune Protection and Beach Access Plans (Plans). The amendments
are adopted with changes to the proposed text as published in the April 12,
2002, issue of the
Texas Register
(27 TexReg
3024).
Under §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 (31 TAC §§15.1-15.10),
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.
The adopted amendments will function as conditional certifications that
will allow for implementation of the respective Plan provisions. The amendment
to §15.11(a)(10) and the addition of §15.11(b)(3) are adopted to
conditionally certify the establishment of a beach user fee in the beach user
fee portion of the City of Corpus Christi's (Corpus Christi's) Plan. The amendment
to §15.11(b)(1) is adopted to conditionally certify the special events
portion of the City of Galveston's (Galveston's) Plan. The conditional certification
of the special events portion of Galveston's Plan carries its own 180-day
conditional certification period, and does not change the timeframe of the
180-day conditional certification period for the remainder of Galveston's
Plan, adopted August 12, 1993, and amended February 9, 1995, and June 19,
1997. After the filing of this proposed rule in the
Texas Register
, both Corpus Christi and Galveston submitted amended
ordinances, amending their Plans, that satisfied the issues raised by the
Land Office in its comments sent to Corpus Christi on March 19, 2002, and
to Galveston on March 11, 2002, and March 27, 2002. The Land Office will evaluate
the amended Plans, pursuant to §15.3 of the beach/dune rules, to determine
whether the Plan amendments are consistent with the requirements of the Open
Beaches Act, the Dune Protection Act, and 31 TAC, Chapter 15, Subchapter A.
The adopted amendments to conditionally certify Corpus Christi's Plan and
Galveston's Plan 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.
No comments were received regarding the proposed amendments to this rule,
and there were no requests for the two takings impact assessments that were
prepared by the Land Office for the adopted amendments.
The amendments are adopted under Texas Natural Resources Code,
Chapter 61. Specifically, the amendments are adopted under Texas Natural Resources
Code §61.011(d)(5), 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(d), 61.015, and 61.022
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)
Brazoria County (adopted August 9, 1993, amended September
27, 1993);
(2)
Chambers County (adopted August 9, 1993);
(3)
City of Port Aransas (adopted February 15, 1995);
(4)
City of Port Arthur (adopted April 12, 1993);
(5)
Jefferson County (adopted August 16, 1993, amended March
7, 1994);
(6)
Matagorda County (adopted February 13, 1995). The General
Land Office certifies that the Beach User Fees section of the Matagorda County
plan adopted by the Matagorda County Commission Court on March 15, 1999, is
consistent with state law.
(7)
Town of Quintana (adopted August 11, 1993);
(8)
Village of Jamaica Beach (adopted August 16, 1993, amended
December 6, 1993);
(9)
Town of South Padre Island (adopted October 5, 1994);
(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)
Cameron County:
(A)
Plan (adopted September 20, 1994). The 440-foot building
line established in the Cameron County plan, Section III.I, shall not be operative
unless it is landward of the line of vegetation. The line of vegetation shall
be established as required in the Open Beaches Act, Texas Natural Resources
Code, §61.017.
(B)
Padre Shore Ltd. Final Master Plan Amendment (adopted November
5, 1996).
(12)
Nueces County
(A)
Plan (adopted March 25, 1992, amended October 23, 1996).
(B)
La Concha master plan. The General Land Office certifies
that the dune protection portion of the La Concha master plan adopted by the
Nueces County commissioners court on March 20, 1996, is consistent with state
law.
(C)
Palms at Waters Edge master plan: The General Land Office
certifies that the dune protection portion of the Palms at Waters Edge master
plan adopted by the Nueces County commissioners court on December 27, 1996,
is consistent with state law.
(D)
Mustang Island Episcopal Conference Center master plan.
The General Land Office certifies that the dune protection section of the
Mustang Island Episcopal Conference Center master plan adopted by the Nueces
County Commissioners Court on January 31, 2000, is consistent with state law.
(13)
Village of Surfside Beach (adopted December 12, 2000).
(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, June 19, 1997, and February 14, 2002).
(A)
This certification is valid for 180 days, during which
time the City of Galveston will modify its plan consistent with the General
Land Office comments submitted to the City of Galveston (October 14, 1993).
(B)
This certification includes a variance from §§15.4(c)(8),
15.5(b)(3), and 15.6(f)(3) of this title, (relating to Dune Protection Standards,
Beachfront Construction Standards, and Concurrent Dune Protection and Beachfront
Construction Standards). The City of Galveston's plan:
(i)
provides that paving or altering the ground below the lowest
habitable floor is prohibited in the area between the line of vegetation and
25 feet landward of the north toe of the dune;
(ii)
provides that paving used under the habitable structure
and for a driveway connecting the habitable structure and the street is limited
to the use of unreinforced fibercrete in 4 feet by 4 feet sections, which
shall be a maximum of four inches thick with sections separated by expansion
joists, or pervious materials approved by the City Department of Planning
and Transportation, in that area 25 feet landward of the north toe of the
dune to 200 feet landward of the line of vegetation;
(iii)
assesses a "Fibercrete Maintenance Fee" of $200.00 to
be used to pay for the clean-up of fibercrete from the public beaches, should
the need arise; and
(iv)
allows the use of reinforced concrete in that area landward
of 200 feet from the line of vegetation.
(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 and March 27, 2002).
(2)
Galveston County (adopted August 16, 1993). This certification
is valid for 180 days, during which time Galveston County will modify its
plan consistent with the General Land Office comments submitted to Galveston
County (October 18, 1993).
(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)
Implementation of conditionally certified plans. Local
governments are required to implement conditionally certified plans consistent
with the Texas Natural Resources Code, Chapters 61 and 63, and the General
Land Office rules for management of the beach/dune system, §§15.1
- 15.10 of this title (relating to Management of the Beach/Dune System).
(d)
Removal of conditions of certification.
(1)
Local governments shall submit their modified plans on
or before the expiration of the 180-day time period. The General Land Office
shall provide to the pertinent local government a determination as to the
sufficiency of the modification(s) within 60 days of receipt of the plan.
The General Land Office will remove all conditions of the plan's certification
by amending this subsection. Such amendments will list the name of the pertinent
local government in subsection (a) of this section, and delete the same from
subsection (b) of this section. If the General Land Office determines that
modifications of plans are insufficient, the General Land Office shall provide
specific exceptions to the modifications. If those portions of the plan to
which the General Land Office has noted exceptions can be addressed through
further comment, plan revision and review, conditional certification will
be reissued pursuant to a General Land Office amendment to this subsection,
subject to further plan modification.
(2)
In the event that a local government chooses not to modify
its plan as requested in the General Land Office comments, the local government
shall provide in writing the scientific or legal justification as to why such
modifications are not feasible. The justification shall be submitted to the
General Land Office on or before the due date of the revised plan. The justification
will be reviewed by the General Land Office, and a determination as to the
sufficiency of the justification will be provided to the local government
within 60 days of receipt by the General Land Office. Local government plans
shall continue in effect under conditional certification until the sufficiency
of the justification is resolved or this section is amended.
(e)
Withdrawal of conditional certification. Conditional certification
of a local government plan shall be withdrawn by the General Land Office after
the 180-day time period if the pertinent local government does not submit
to the General Land Office either a formally adopted plan which has been modified
consistent with General Land Office comments or the written scientific or
legal justification as to why such modification is not feasible. In any event,
withdrawal of conditional certification shall only occur after the General
Land Office adopts an amendment to this subsection withdrawing conditional
certification, with accompanying specific reasons, and the General Land Office
has given the pertinent local government written notice of the withdrawal
of the conditional certification.
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 May 23, 2002.
TRD-200203170
Larry Soward
Chief Clerk
General Land Office
Effective date: June 12, 2002
Proposal publication date: April 12, 2002
For further information, please call: (512) 305-9129