31 TAC §15.14
The General Land Office adopts on an emergency basis new §15.14,
concerning Emergency Measures for Dune Restoration and Geotextile Shoreline
Protection Project Repair. The General Land Office has identified areas along
the Texas coast where emergency hazard mitigation measures are needed to reestablish
the protective barrier provided by natural dunes and geotextile shoreline
protection projects damaged or destroyed by storm tidal surges in order to
prevent imminent peril to the public health, safety, and welfare.
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 protective barrier provided
by naturally occurring dunes and geotextile shoreline protection projects
in Galveston, Brazoria, and Matagorda and other counties has been severely
impacted as a result of these natural forces. Coastal residents, public beaches,
public and private coastal property, and coastal natural resources are extremely
vulnerable to injury, damage, and destruction from subsequent tropical storms
and hurricanes, as Hurricane Claudette struck early in the hurricane season.
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
measures for dune restoration or geotextile shoreline protection project repair
and provides for temporary suspension of the permit and certificate application
requirements for these emergency hazard mitigation measures.
The emergency rule, §15.14, provides procedures and requirements for
issuance of authorization to undertake emergency measures for dune restoration
or geotextile shoreline protection project repairs for littoral property impacted
by Hurricane Claudette. The rule is applicable to Brazoria, Galveston, and
Matagorda Counties. The rule, §15.14(c) provides definitions applicable
to this section. Section 15.14(d) allows local governments with beach/dune
permitting jurisdiction in the named counties to issue authorizations for
emergency measures for dune restoration or geotextile shoreline protection
project repairs as necessary to eliminate the danger and threat to public
health, safety, and welfare. Section 15.14(e) provides that the normal permit
process shall not apply to authorizations, and that emergency authorizations
are valid only until November 1, 2003, the end of hurricane season. Section
15.14(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 dune restoration projects and geotextile shoreline
protection project repairs. They are also required to maintain a written record
of the specific activities that have been authorized, including pictures of
the dune area before and after the emergency dune restoration or geotextile
shoreline protection project repairs are completed. Section 15.14(g) provides
requirements and limitations with regard to the location of emergency dune
restoration projects. Section 15.14(h) provides guidelines for authorized
methods and materials with regard to emergency dune restoration projects.
Section 15.14(i) contains prohibitions with regard to dune restoration projects.
Section 15.14(j) contains limitations on geotextile shoreline protection project
repairs to ensure that such projects are consistent with policies of the Coastal
Coordination Council established for structural shoreline protection projects.
The General Land Office has determined that the Private Real Property Rights
Preservation Act, Chapter 2007 of the Texas Government Code, does not apply
to this emergency rulemaking action because the rule is adopted in response
to a real and substantial threat to public health, safety, and welfare.
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.
§15.14.Emergency Measures for Dune Restoration and Geotextile Shoreline Protection Project Repair.
(a)
Purpose. The purpose of this section is to allow local
governments to grant property owners the ability to immediately undertake
emergency repairs to dunes and geotextile shoreline protection projects that
have been damaged by the effects of Hurricane Claudette and to construct dune
restoration projects to minimize further threat or damage to coastal residents
and littoral property.
(b)
Applicability. This section applies only to the emergency
dune restoration projects and repairs to geotextile shoreline protection projects
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, terms, and phrases when
used in this section, shall have the following meanings:
(1)
Emergency dune restoration--those immediate response measures
that must be undertaken to construct a dune, repair a damaged dune, or stabilize
an existing dune in order to minimize further threat or damage to coastal
residents and littoral property.
(2)
Emergency geotextile shoreline protection project repairs--those
immediate response measures that must be undertaken to repair an existing
geotextile shoreline protection project in order to minimize further threat
or damage to coastal residents and littoral property.
(d)
Local government authorization. Local governments with
jurisdiction to issue dune protection permits and/or beachfront construction
certificates may, in accordance with this section, authorize emergency dune
restoration projects and emergency geotextile shoreline protection project
repairs in areas where dunes or existing geotextile shoreline protection projects
have been damaged by the effects of Hurricane Claudette. All authorizations
issued under this section must otherwise be in accordance with applicable
state and local laws. Under this section, local governments may only authorize
emergency dune restoration projects and emergency geotextile shoreline protection
project repairs as necessary to minimize the danger and threat to coastal
residents and littoral property. Any proposed emergency dune restoration or
emergency geotextile shoreline protection project repair project must comply
with the standards provided in this section.
(e)
Procedures. The permit and certificate application requirements
and procedures of §15.3(s)(4) of this title (relating to Administration)
are not applicable to emergency dune restoration or emergency geotextile shoreline
protection project repair. However, any person eligible to undertake emergency
dune restoration or emergency geotextile shoreline protection project 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 dune restoration or emergency geotextile shoreline protection
project repair under this section 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 only until November 1, 2003, after which
it will expire. A local government shall not renew an authorization issued
under this section.
(f)
Written Record. Local governments authorizing emergency
dune restoration or emergency geotextile shoreline protection project repair
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 emergency dune restoration or emergency geotextile
shoreline protection project repair 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 emergency dune restoration. Local governments
shall require persons to locate restored dunes in the area extending no more
than 20 feet seaward of the post-storm line of vegetation, referred to herein
as the restoration area. Local governments shall ensure that the restoration
area follows the natural meander or migration of the post-storm vegetation
line. Local governments may issue permits and certificates to allow the restoration
of dunes on the public beach only under the following conditions:
(1)
Restored dunes may be located farther seaward than the
restoration area only to the limited extent necessary to minimize further
damage to coastal residents and littoral property, provided such dunes shall
not substantially restrict or interfere with the public use of the beach at
normal high tide;
(2)
Local governments shall not allow any person to restore
dunes, even within the restoration area, if such dunes would effectively prohibit
access to or use of the public beach at normal high tide; and
(3)
Under no circumstances may sand or other materials be placed
below mean high water.
(h)
Authorized methods and materials for emergency dune restoration.
Local governments may allow persons to use the following methods or materials
for emergency dune restoration:
(1)
piles of sand having similar grain size and mineralogy
as the surrounding beach;
(2)
clay core dunes with a minimum six-inch cover of sand having
similar grain size and mineralogy as the surrounding beach,
(3)
organic brushy material such as hay bales; and
(4)
sand obtained by scraping accreting beaches only if the
scraping is approved by the local government and the project is monitored
to determine any effect on the public beach, including, but not limited to,
increase erosion of the public beach.
(i)
Prohibitions. Local governments shall not allow any person
to undertake dune restoration projects using any of the following methods
or materials:
(1)
hard or engineered structures;
(2)
materials such as bulkheads, riprap, concrete, or asphalt
rubble, building construction materials, and any non-biodegradable items;
(3)
fine or silty sediments;
(4)
sediments containing the toxic materials listed in Volume
40 of the Code of Federal Regulations, Part 302.4 in concentrations which
are harmful to people, flora, and fauna as determined by applicable, relevant,
and appropriate requirements for toxicity standards established by the local,
state, and federal governments; or,
(5)
sand obtained by scraping or grading dunes or beach.
(j)
Repair of existing geotextile shoreline protection project.
Notwithstanding the general prohibition on maintaining or repairing erosion
response structures in §15.6(d) of this title (relating to Concurrent
Dune Protection and Beachfront Construction Standards), a local government
may authorize the maintenance or repair of a geotextile shoreline protection
project that conforms with the policies of the Coastal Coordination Council
promulgated in §501.14(k)(2) of this title, subject to the following
limitations:
(1)
Local governments shall not authorize any person to maintain
or repair a geotextile shoreline protection project that is located below
mean high water;
(2)
This section does not authorize the repair of a geotextile
shoreline protection project that is currently in violation of state laws
and regulations; and
(3)
This section does not authorize the construction of a new
geotextile shoreline protection project.
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 25, 2003.
TRD-200304534
Larry L. Laine
Chief Clerk, Deputy Land Commissioner
General Land Office
Effective Date: July 25, 2003
Expiration Date: October 23, 2003
For further information, please call: (512) 305-9129