31 TAC §15.13
The General Land Office adopts on an emergency basis new §15.13,
concerning Emergency Provisions for the Emergency Stabilization and Repair
of Damaged Structures. The General Land Office has identified areas along
Texas coast where structures are in need of emergency stabilization and repair.
The section is adopted on an emergency basis due to the imminent peril
to public health, safety and welfare caused by high tides and erosion resulting
from Hurricane Claudette. As a result of Hurricane Claudette, July 15, 2003,
extreme tides and wave action, which greatly exceeded normal levels, caused
substantial coastal flooding and erosion. The structural integrity of many
homes in Galveston, Brazoria, and Matagorda and other counties has been severely
impacted as a result of these natural forces.
Following the landfall of Hurricane Claudette, concerned citizens along
the Texas coast requested immediate assistance from the General Land Office.
General Land Office staff conferred with local government staff and officials
and determined the necessity for an emergency rule which allows emergency
stabilization and repair of structures and provides for temporary suspension
of the permit and certificate application requirements for these emergency
stabilization and repair techniques and methods.
The emergency rule, §15.13, provides procedures and requirements for
issuance of authorization to undertake emergency stabilization and repairs
of structures impacted by Hurricane Claudette. The rule is applicable to Brazoria,
Galveston, and Matagorda Counties. The rule, §15.13(c) provides definitions
applicable to this section. Section 15.13(d) allows local governments with
beach/dune permitting jurisdiction in the named counties to issue authorizations
for emergency stabilization and repair of structures as necessary to eliminate
the danger and threat to public health, safety, and welfare. Section 15.13(e)
provides that the normal permit process shall not apply to authorizations,
and that emergency authorizations are valid for no more than six months from
issuance. Section 15.13(f) provides that local governments are required to
maintain a written record of the names and addresses of property owners who
have been authorized to undertake emergency stabilization and repair actions.
They are also required to maintain a written record of the specific activities
that have been authorized, including pictures of the structure before and
after the repairs are completed. Section 15.13(g) provides requirements and
limitations with regard to authorization by local governments of emergency
stabilization and repair. Section 15.13(h) provides additional limitations
with regard to structures located on the public beach, and requirements related
to the placement of beach quality sand. Sections 15.13(i), (j), (k) and (l)
provide additional limitations and requirements related to the repair of hard
structures and septic and sewage systems, the placement of materials on the
public beach, and the removal of beach debris.
The General Land Office has determined that a takings impact assessment
(TIA), pursuant to §2007.043 of the Texas Government Code, is not required
for the adoption of this emergency because the rule is adopted in response
to a real and substantial threat to public health, safety, and welfare. An
analysis of the applicability of the exemption from the TIA requirement has
been prepared and is available from Ms. Melinda Tracy, Texas Register Liaison,
Texas General Land Office, Legal Services Division, P.O. Box 12873, Austin,
Texas 78711-2873, facsimile number (512) 463-6311, email address melinda.tracy@glo.state.tx.us.
The new section is adopted on an emergency basis under the Texas
Natural Resources Code, §§63.121, 61.011, and 61.015(b), which provide
the General Land Office with the authority to: identify and protect critical
dune areas; preserve and enhance the public's right to use and have access
to and from Texas's public beaches; protect the public easement from erosion
or reduction caused by development or other activities on adjacent land; and
other measures needed to mitigate for adverse effects on access to public
beaches and the beach/dune system. The new section is also adopted pursuant
to the Texas Natural Resources Code, §33.601, which provides the General
Land Office with the authority to adopt rules on erosion, and the Texas Water
Code, §16.321, which provides the General Land Office with the authority
to adopt rules on coastal flood protection. Finally, the new section is adopted
on an emergency basis pursuant to Texas Government Code §2001.034, which
authorizes the adoption of a rule on an emergency basis without prior notice
and comment based upon a determination of imminent peril to the public health,
safety, or welfare.
§15.13.Definitions and Applicability.
(a)
Purpose. The purpose of this section is to allow local
governments to grant property owners the ability to immediately undertake
emergency stabilization and repair of structures which have been damaged as
the result of Hurricane Claudette.
(b)
Applicability. This section applies only to structures
located in Brazoria, Galveston, and Matagorda Counties. This section shall
be in effect for 90 days from the date of filing with the Office of the Secretary
of State and may be extended by the Land Commissioner for additional 30-day
periods as necessary to protect public health, safety and welfare.
(c)
Definitions. The following words and terms, as used in
this section, shall have the following meanings:
(1)
The Code--The Texas Natural Resources Code.
(2)
Habitable--The condition of the premises which permits
the inhabitants to live free of serious threats to health and safety.
(3)
House--A single or multi-family structure that serves as
living quarters for one or more persons or families.
(4)
Emergency repair--Those immediate response actions that
must be undertaken to render a structure habitable or to prevent further damage.
(5)
Emergency stabilization--Those immediate response actions
that must be undertaken to stabilize a structure that is subject to imminent
collapse or substantial damage as a result of erosion or undermining caused
by waves or currents of water exceeding normally anticipated cyclical levels.
(d)
Local government authorization. Local governments with
jurisdiction to issue dune protection permits and beachfront construction
certificates may, in accordance with this section, authorize emergency stabilization
and repair of structures that have been damaged by Hurricane Claudette. All
authorizations issued under this section must otherwise be in accordance with
applicable state and local law. The local government is responsible for assessing
damage to such structures, determining whether the structures are eligible
for approval of emergency stabilization and repair, and determining appropriate
emergency stabilization and repair procedures. Under this section, local governments
may only authorize emergency stabilization and repair as necessary to eliminate
the danger and threat to public health, safety, and welfare. Any proposed
stabilization and repair method or technique must comply with the standards
provided in this section and §15.6(e) and (f) of this title (relating
to Concurrent Dune Protection and Beachfront Construction Standards).
(e)
Procedure. The permit and certificate application requirements
of §15.3(s)(4) of this title (relating to Administration) are not applicable
to the emergency stabilization and repair of structures, however, all property
owners eligible to undertake emergency stabilization efforts and repair must
receive prior approval for such actions from the local government officials
responsible for approving such actions. Any action that is not necessary for
the emergency stabilization and repair of structures will require a permit
and/or certificate before such action is undertaken. An authorization issued
by a local government under this section shall be valid for no more than 6
months from the date of issuance. A local government shall not renew an authorization
issued under this section.
(f)
Written Record. Local governments authorizing emergency
stabilization and repair of structures shall compile and maintain a record
of the names and addresses of the property owners that receive such authorization.
For each authorization, the local government must maintain a written record
of the actions that it authorized, including pictures of the structure before
and after completion of the authorized activities, and will make such record
available for inspection by the General Land Office upon request. Within one
week of the expiration of this rule, local governments shall submit to the
General Land Office copies of the complete written record of actions authorized
under this section.
(g)
Authorized Repairs. Local governments may authorize emergency
stabilization and repair of a structure only if the local government determines
that the proposed action:
(1)
is solely to make the house habitable or prevent further
damage, including reconnecting the house to utilities;
(2)
does not increase the footprint of the house;
(3)
does not include the use of impervious material, including
but not limited to concrete or fibercrete, seaward of the natural line of
vegetation;
(4)
does not include the construction of an enclosed space
below the base flood elevation and seaward of the natural line of vegetation;
(5)
does not include the repair, construction, or maintenance
of an erosion response structure seaward of the natural line of vegetation;
(6)
does not occur seaward of mean high water; and,
(7)
does not include construction underneath, outside or around
the house other than for reasonable access to the house.
(h)
Existing structures on the public beach.
(1)
Local governments may grant authorization in accordance
with this section for emergency stabilization of structures that encroach
on the public beach, but only to the limited extent necessary to prevent an
immediate threat to public health, safety, and welfare.
(2)
Local governments may grant authorization in accordance
with this section for emergency repair of a structure that encroaches on the
public beach, but only if the structure is:
(A)
a house; and,
(B)
not in imminent danger of collapse or other imminent threat
to public health and safety.
(3)
Beach-quality sand may be placed on the lot in the area
five feet seaward of a structure where necessary to prevent further erosion
due to wind or water. The beach-quality sand must remain loose and cannot
be placed in bags. Such actions are authorized in situations where protection
of the land immediately seaward of a structure is required to prevent foreseeable
undermining of habitable structures in the event of such erosion.
(i)
Local governments are not authorized under this rule to
allow the use of concrete or the construction or repair of bulkheads, geotubes,
or hard protective structures.
(j)
Repair of sewage or septic systems. If the Texas Commission
on Environmental Quality or its designated local authority, the Texas Department
of Health, or a local health department has made a determination that a sewage
or septic system located on or adjacent to the public beach poses a threat
to the health of the occupants of the property or public health, safety or
welfare, and requires removal of the sewage or septic system, the sewage or
septic system shall be located in accordance with §15.5(b)(1) of this
title (relating to Beachfront Construction Standards) and §15.6(b) and §15.6(e)(1)
of this title (relating to Concurrent Dune Protection and Beachfront Construction
Standards).
(k)
Prohibitions. This emergency rule does not authorize the
placement of materials on the public beach except in conjunction with authorized
emergency stabilization and repair of structures.
(l)
Removal of beach debris. Beach debris moved by wind or
water can threaten Gulf-fronting properties. Local governments, therefore,
shall coordinate with property owners to remove debris such as pilings, concrete
and garbage from the public beach as soon as possible.
This agency hereby certifies that the emergency adoption
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 July 16, 2003.
TRD-200304328
Jerry E. Patterson
Commissioner
General Land Office
Effective Date: July 16, 2003
Expiration Date: October 14, 2003
For further information, please call: (512) 305-9129