TITLE 31.NATURAL RESOURCES AND CONSERVATION

Chapter 15. COASTAL AREA PLANNING

Subchapter A. MANAGEMENT OF THE BEACH/DUNE SYSTEM

The General Land Office (GLO) adopts amendments to §15.36, relating to Certification Status of City of Galveston Dune Protection and Beach Access Plan (Plan) with changes to the proposed text as published in the March 19, 2004, issue of the Texas Register (29 TexReg 2849). The amendments to §15.36 document the status of the certification of the Dune Protection and Beach Access Plan for the City of Galveston (City) adopted on August 12, 1993, and amended on February 9, 1995, June 19, 1997, February 14, 2002, March 13, 2003, January 29, 2004, and February 26, 2004. The GLO originally proposed to amend §15.36(a) to change the status of the Plan as amended from "conditionally certified" to "certified as consistent with state law." The adopted amendment instead retains the conditional certification status for the City's Plan in §15.36(a) with respect to a specific area on the east end of Galveston Island. Section 15.36(a) as amended also changes the status of the Plan to certified as consistent with state law with respect to other geographic areas and with respect to the boundary adjustments to Seawall Beach Urban Park and the increased beach user and parking fees at Seawall Beach Urban Park, R.A. Apffel Park, Stewart Beach, Dellanera Park, and east and west areas of Galveston Island. Section 15.36(b) is unchanged. New §15.36(c) adds a definition of the phrase "completion of substantial physical improvements" applicable to areas where vehicular access may be restricted in the future under the Plan. New §15.36(d) outlines specific measures that must be included as an amendment to the Plan within the time specified in the adopted rule in order to continue to restrict vehicular access to the public beach in the area between Access Points 1 and 2 (extending from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park). New §15.36(e) outlines specific measures that must be taken in accordance with the Plan in order to restrict vehicular access to the public beach on the west end of Galveston Island. The former §15.36(c) and (d) are deleted as those subsections pertain to previous Plan amendments that are incorporated into new subsection (a).

PROCEDURAL BACKGROUND

City of Galveston Dune Protection and Beach Access Plan. The City adopted the original version of the Plan on August 12, 1993. That version of the Plan was conditionally certified as consistent with state law by the GLO. The Plan is generally set forth in Section 29-90 of the City of Galveston Zoning Standards (Section 29-90). The Plan has been previously amended on February 9, 1995, June 19, 1997, February 14, 2002, and March 13, 2003. Those amendments were approved by the GLO and are currently reflected in Section 29-90 and in §15.36 prior to the filing of this final adoption notice. In January 2004, the City amended the then-existing version of the Plan to change the boundaries of Seawall Beach Urban Park and to impose certain parking fees. In February 2004, the City further amended the Plan to change certain beach user fees and to implement a comprehensive beach access plan to allow the restriction of vehicular traffic on portions of the public beach in a manner consistent with state law. These amendments primarily amend Section 29-90, including the addition of Appendix A to Section 29-90, which describes forty-one ingress/egress ways, labeled as "Access Points" to the beach and the parking related to such Access Points (Appendix A). Along with the City ordinances amending Section 29-90, the City submitted a staff report and other information in support of its request that the GLO certify the Plan. The Plan amendments that are the subject of this final adoption notice and the information supporting them are described in more detail below.

Seawall Parking Fees. On January 29, 2004, the City passed Ordinance No. 04-020, amending the City's Plan to adjust the boundaries of the Seawall Beach Urban Park to remove all properties north of the right-of-way of Seawall Boulevard and expand the eastern and western boundaries of the Seawall Beach Urban Park to 1st Street and 103rd Street, respectively. On the same day, the City passed Ordinance No. 04-021, amending the City's Plan to establish parking fees to be collected at certain parking spaces along Seawall Boulevard and within the Seawall Beach Urban Park (Seawall Parking Plan). Ordinance No. 04-021 sets a fee structure for the south side of the Seawall Beach Urban Park under which daily parking fees are not to exceed $8.00 per vehicle, with a $25.00 annual pass available. It also sets a fee structure for the north side of the Seawall Beach Urban Park under which parking fees are imposed as follows: No charge for the first one-half hour, then $1.00 per hour in specified zones, and $2.00 per hour in beach access zones, not to exceed $8.00 per vehicle per day.

On December 19, 2003, a citizen submitted a petition to amend the City of Galveston's charter (Charter) to prohibit the City from charging a fee for parking a motor vehicle on Seawall Boulevard without approval of a majority of qualified voters voting in an election to authorize such a fee. The City Secretary did not certify the petition to amend the Charter. A petition for writ of mandamus was filed with the Fourteenth Court of Appeals of Texas. On March 5, 2004, the court ruled that the City Secretary had a ministerial duty to submit the petition to the governing body of the City of Galveston, so that the City's governing body may submit the proposed Charter amendment to the voters for their approval. The City held an election on the Charter amendment on May 15, 2004, and it was approved by a majority of voters. Therefore, in order to implement the Seawall Parking Plan, the City must hold an election and receive voter approval.

At such time as the parking fees may be imposed, the City has committed to implement these amendments to the Plan in a manner that provides free parking at a minimum of ten percent (10%) of the parking spaces within the Seawall Beach Urban Park and to ensure that all areas of the public beach adjacent to the Seawall Beach Urban Park are within a reasonable distance of free parking spaces.

Beach User Fees. On February 26, 2004, the City passed Ordinance No. 04-026, which amended the City's Plan in part to provide for establishment of and an increase in beach user fees at Stewart Beach, R.A. Apffel Park, Dellanera Park, and east and west areas of Galveston Island. These changes amend subparagraph (o)(7) ("Beach User Fees") of Section 29-90. The beach user fees at Stewart Beach and R.A Apffel Park, respectively, are increased from $7.00 to $8.00, with a $25.00 season pass available. The beach user fee at Dellanera Park is increased from $5.00 to $8.00 for each vehicle. The Plan amendments also establish a maximum daily beach user fee of $8.00 with a minimum $12.00 and maximum $25.00 annual pass available for east and west areas of Galveston Island where vehicular access and on-beach parking are provided as identified in Appendix A.

Beach Access and Parking Plan. The amendments to Section 29-90 in Ordinance No. 04-026 also amended the Plan extensively to implement a comprehensive beach access plan. The Plan limits vehicular access to portions of the public beach, with on-beach and off-beach parking and vehicular and pedestrian ingress/egress ways provided for areas where vehicular traffic is limited. The ingress/egress ways to the beach are identified as "Access Points," numbered from Access Point (AP) 1 on the far eastern end of Galveston Island at R.A. Apffel Park through AP 41 on the far western end at San Luis Pass. Appendix A briefly describes the location of the physical access, parking, and amenities provided at each AP. The Final Beach Access Map, dated February 26, 2004, that accompanied the City's request for certification (Beach Access Map) provides a graphical depiction of the Access Points and their associated on-beach and off-beach parking. Staff Report 04P-72, also submitted with the Plan amendments, describes the City's efforts and decision-making process in developing the Plan. Attachment D to the City's Plan amendment, which accompanied the City's request for Plan certification, sets forth "Beach Access Definitions" that the City used in formulating its Plan (Beach Access Definitions). The City states in the Beach Access Definitions that the definitions "are provided as part of the City of Galveston's beach access plan." Attachment E to the City's Plan amendment, entitled "Implementation Element," describes the City's policies and plan for carrying out the Plan itself and enhancing public access to and use of the beach under its Plan in the future (Implementation Element). All of these documents are available on the City's web site at http://www.cityofgalveston.org/pdf/04p72stf.pdf at the time of the filing of this final adoption notice.

DESCRIPTION OF THE GALVESTON BEACH ACCESS PLAN

Ordinance No. 04-026 amends paragraph (o) of Section 29-90 ("Public Beach Use and Access") to authorize and incorporate the requirements of state law into the Plan. As amended, that paragraph provides in part as follows:

"The City of Galveston shall regulate pedestrian and vehicular beach access, traffic, and parking on the public beach only in a manner that preserves or enhances existing public use and access . . . . Parking requirements for all new or replatted developments, on or adjacent to the beach, where there is no existing public parking, will be calculated at one (1) space for each 15 linear feet of beach frontage, calculated to meet the Galveston Zoning Standards for space requirements. Off-beach parking boundaries will be identified with signage and maintained on a continuous basis . . . . All parking and access plans must be consistent with General Land Office regulations as promulgated in state law. The City of Galveston therefore, adopts Beach Access and Parking Plan as it appears in Appendix A of this section."

The GLO recognizes that the requirement of Section 29-90 that the beach access and parking plan be consistent with state law and the wording of Appendix A and the Final Beach Access Map do not always harmonize. In the following description of the Plan, the GLO sets forth its general understanding of the Plan, in light of Section 29-90, Appendix A, the Beach Access Definitions, the Final Beach Access Map, the other Plan-related documents submitted with the request for certification, and further clarifications from the City. Such clarifications include a letter from the City to the GLO dated May 7, 2004, discussing the City's commitment to beach access and parking for East Beach, and a letter from the City to the GLO dated June 16, 2004, clarifying a number of aspects of the plan including the status of a golf cart as a "vehicle," planned access, parking and signage on East Beach and at Stewart Beach, information about the condition of the beach between AP 19 (Karankawa Beach) and AP 24 (Sandhill Shores), and information about the phased closure of the beach on the West End, planned access, parking, and signage, and the reasons for the access point spacing in the West End.

The City's Plan provides for the public's right of access to and use of the public beach through a combination of conspicuous signage labeling public beach access and parking, vehicular and pedestrian access and dune walkovers, seasonal and special use vehicular restrictions, and a variety of parking options. The City has set forth detailed goals to support and expand its beach access plan over a period of ten years in the Implementation Element. The GLO considers the Implementation Element to be essential to its interpretation of the Plan. The Implementation Element demonstrates the City's dedication of resources, present and future, to improving the quality of public beach access. Moreover, implicit in the Implementation Element is the City's strong commitment to enforcing its own beach access rules and regulations. The posting of illegal signage discouraging public beach access and practices such as towing of vehicles from subdivisions designated for public beach parking have caused problems for beach goers in the past and have the effect of limiting, not enhancing, public beach access. The inclusion of notification of subdivisions and neighborhood associations regarding sign violations as a High Priority item in the Implementation Element demonstrates the City's commitment to ending such practices and is consistent with the expectation of the GLO that appropriate action will be taken immediately.

The Implementation Element includes High-Priority/Short-Term Actions (0 - 2 years), Mid-Term Actions (2 - 5 years), and Long-Term Actions (5-10 years). The High-Priority/Short Term Actions (0 - 2 years) include implementation of one-way seasonal access between AP 33 and AP 35; implementation of the special use area to the east of Stewart Beach; repair and replacement of existing bollard placement; pedestrian enhancement; implementation of a Tier One signage program providing for "Public Beach Access" signs on F.M. 3005 at each access point that is currently improved; notification of subdivisions and neighborhood associations regarding sign violations; repair and replacement of City-owned dune walkovers and construction of at least one new accessible dune walkover with Coastal Impact Assistance Program grant funds; production of a GIS map to delineate access areas, bollard placement, signage, parking locations and public parks; relocation of bollard placement to widen vehicular beach areas in accordance with approved T-head widths at AP 7, AP 10, AP 18, AP 25, and AP 31; and assurance that new final plat documents contain dedicatory language for public beach parking areas, pedestrian access ways, vehicular drive access, parking easements, etc. Mid-Term Actions (2 - 5 years) include implementation of a Tier Two signage program providing for "Public Beach Access" signs on F.M. 3005 at each access point in addition to those currently improved; implementation of bollard installation parallel to the dune system at all vehicle accessible beach access points; implementation of access points on far west end as "substantial physical improvements" occur; acceptance of dedication of public beach parking areas, pedestrian access ways, vehicular drive access, and parking easements from subdivisions; installation of dune walkovers in dedicated public beach access easements; and development of a program to implement beach related amenities, such as public restrooms, showers, etc. Long-Term Actions (5 - 10 years) include implementation of accessibility standards for public beach access points in conjunction with revised state and local laws upon final adoption of Federal Access Board's Accessibility Guidelines for Outdoor Developed Areas; informational signage at all beach access points; completion of bollard installation parallel to the dune system at all vehicle accessible beach access points; completion of subdivision projects to address public beach access signage and parking plans, including improved parking areas; and repair and replacement of previously installed bollards, signage, walkovers, etc. as necessary.

Further, the GLO considers the following Beach Access Definitions, submitted with the request for certification and set forth in the following paragraphs, to be critical to a proper description and interpretation of the Plan:

"On-Beach Parking/Pedestrian Access ('T-heads')" means that "[t]he beach is open to all vehicles for parking throughout the year. The beach is accessible to pedestrians from the public beach easement." This type of access is provided at the following locations in the Plan: a) AP 1 (R.A. Apffel Park, one T-head inside park with beach user fee, one T-head for free parking outside park boundaries); b) AP 2 (Stewart Beach, with beach user fee); c) AP 6 (Pocket Park #1); d) AP 7 (Sunny Beach Subdivision); e) AP 10 (10-Mile Road/Hershey Beach Subdivision); f) AP 12 (Bermuda Beach Subdivision); g) AP 14 (11-Mile Road); h) AP 16 (13-Mile Road); i) AP 17 (15-Mile Road); j) AP 18 (16-Mile Road); k) AP 25 (Gateway Boulevard/Sea Isle Subdivision); l) AP 26 (San Jacinto Street/Sea Isle Subdivision); m) AP 30 (Gulf Boulevard/Isla Del Sol Subdivision); n) AP 31 (Terramar Drive/Terramar Beach Subdivision); o) AP 33 (2nd Street/Bay Harbor Subdivision); and p) AP 36 (Salt Cedar Avenue, also vehicular access east to AP 35).

"On-Beach Driving/Vehicular Access" means that "[t]he beach is open to all vehicles for parking and driving throughout the year." This type of access is provided at two locations under the Plan: a) A minimum of 3,230 linear feet of beach on the western edge of the island adjacent to AP 41, Pointe San Luis 4 (toll bridge area, with beach user fee); and b) The stretch of beach between AP 36 (Salt Cedar Avenue, unrestricted access to the east to AP 35) and AP 35 (Half Moon Beach Subdivision, unrestricted access to the west to AP 36).

"Seasonal Access" means that "[v]ehicular access/driving is only permitted during designated times of the year, as follows: Vehicles are prohibited on the beach from 6:00 P.M. Friday to 6:00 P.M. Sunday during the month of March, Memorial Day through Labor Day, and all legal holidays." This type of access has been provided at the following locations: a) The stretch of beach between AP 33 (2nd Street/Bay Harbor Subdivision, one-way driving west to east), AP 34 (Miramar Subdivision, one-way driving, west to east) and AP 35 (Half Moon Beach Subdivision and Stavanger Beach Subdivision, seasonal access to the east, unrestricted vehicular access to the west to AP 36); and b) AP 41 (minimum of 1,200 feet, seasonal on-beach parking on unrestricted vehicular area of beach). The GLO notes that prohibiting vehicular access at AP 41 under the "seasonal access" provision would block vehicular access to the beach adjacent to AP 38, 39 and 40 from the west. That portion of the beach would only be accessible to vehicles through AP 36 (Salt Cedar Avenue) for the duration of the seasonal access period. If vehicular access to the public beach is prohibited at any of the Access Points between Salt Cedar Avenue and AP 41 because Substantial Physical Improvements are in place, the City must not block vehicular access at the seasonal access area near AP 41 until the entire length of the beach is closed to vehicular traffic in accordance with Section 29-90.

"Restricted Access" means that "[t]he beach is open to vehicles throughout the year only as a special use area for persons with disabilities, saltwater fishermen, and the launching of non-motorized personal watercraft. The beach is accessible to pedestrians, from the public beach easement and/or adjacent parking areas." This type of access has been provided at one location: AP 2 (a minimum of 2,640 linear feet at the eastern end of Stewart Beach). The GLO notes that the location of adjacent free parking is unclear from the Final Beach Access Map. The City has clarified that free parking will be installed adjacent to the special use area. The GLO also notes that persons eligible for the special use area who pay the beach user fee to enter Stewart Beach should not be charged an additional beach user fee to enter the special use area. The imposition of such a double beach user fee on persons eligible for the special use area would be unreasonable and inconsistent with the OBA and the GLO's Beach/Dune Rules.

"Substantial Physical Improvements" means that "[t]he Director of the Department of Planning and Community Development, or designee, will approve the determination of 'substantial physical improvements', upon completion of all of the following criteria for development: 1) The filing of a final plat; 2) Installation of public and private infrastructure; 3) Installation of associated Beach Access Point parking, signage, and walkover; and 4) The issuance of a building permit for a private residence or public building, excluding a sales office or accessory structure." The GLO expects that the closing of portions of the public beach to vehicular traffic in new or replatted areas upon the completion of Substantial Physical Improvements shall be conducted in a manner that does not create a stretch of beach that is legally accessible to vehicles but is physically inaccessible to vehicles because it is located in an area bordered on the east and west by areas that are legally inaccessible to vehicles. Further, the GLO understands that, notwithstanding the placement of Substantial Physical Improvements at AP 38, 39 or 40, vehicular access to San Luis Pass via AP 36 (Salt Cedar Avenue) will be permitted until the road surface at the vehicular access at AP 41 is improved to provide reliable, regularly maintained vehicular access to the beach.

The GLO will monitor implementation of the Plan to insure that such implementation is consistent with the GLO's understanding of the Plan, interpreted in light of all Plan-related documents and clarifications. Failure to implement the Plan in a manner consistent with this understanding may result in GLO action to withdraw certification of all or any part of the Plan pursuant to 31 TAC §15.10(f) and/or §15.21(c).

Hearing and Public Comment Period. The GLO conducted a public hearing to receive public comment on the proposed amendments to §15.36 at the Seabrook Community Center, 1210 Anders, Seabrook, Texas, on March 31, 2004. In addition to the public hearing and the 30 day comment period specified in the notice of proposed rulemaking published in the March 19, 2004, issue of the Texas Register (29 TexReg 2849), the GLO extended the comment period to May 7, 2004, to address an inadvertent error in the original notice indicating an incorrect electronic mail address for submission of written comments. Notice of the extension was provided in the April 30, 2004, issue of the Texas Register (29 TexReg 4311) and was covered in the local Galveston newspaper. The GLO gave due consideration to all comments received by the agency.

CERTIFICATIONS

Texas Natural Resources Code, §61.022(c) provides that the commissioner shall certify whether a local government's proposals to regulate vehicular traffic so as to prohibit vehicles from an area of public beach or to impose or increase public beach access, parking, or use fees are consistent with the Open Beaches Act (OBA), §§61.001 - 61.026, Texas Natural Resources Code, and the GLO's Beach/Dune Rules, 31 TAC §§15.1 - 15.10. 31 TAC §15.8 establishes procedures for certification by the GLO as to whether the initiation or amendment of a beach user fee is consistent with the OBA and the GLO's Beach/Dune Rules. 31 TAC §15.7(h) - (k) establishes procedures for certification by the GLO as to whether the initiation or amendment of a vehicular control plan is consistent with the OBA and the GLO's Beach/Dune Rules. 31 TAC §15.21 establishes procedures whereby local governments are required to implement conditionally certified plans consistent the OBA and the GLO's Beach/Dune Rules. 31 TAC §15.3(o) establishes procedures through which local governments can submit integrated dune protection and beach access plans for certification, and the GLO's standards for certification where a plan or plan amendment varies from the GLO's Beach/Dune Rules.

Pursuant to the cited statutory and regulatory authority and the GLO's understanding of the Plan as stated herein, the GLO certifies as consistent with the OBA and the GLO's Beach/Dune Rules the January 29, 2004, and the February 26, 2004, amendments to the City's Plan to change the boundaries of Seawall Urban Beach Park, and to establish or increase beach user fees to be collected at the Seawall Beach Urban Park, Stewart Beach, R.A. Apffel Park, Dellanera Park, and east and west areas of Galveston Island. Failure to implement the Plan in compliance with the Plan's terms, GLO's Beach/Dune Rules, or the OBA may result in GLO action to withdraw certification of this part of the Plan pursuant to 31 TAC §15.10(f).

Additionally, pursuant to the cited statutory and regulatory authority and the GLO's understanding of the Plan as stated herein, the GLO certifies as consistent with the OBA and the GLO's Beach/Dune Rules the February 26, 2004, amendments to the Plan implementing a comprehensive beach access and parking plan through Section 29-90 of the Galveston Zoning Standards and Appendix A thereto with respect to the public beach west of the eastern boundary of Stewart Beach (the areas served by AP 2 through AP 41), and east of the western boundary of R.A. Apffel Park (the area served by AP 1). Failure to implement the Plan in compliance with the Plan's terms, GLO's Beach/Dune Rules, or the OBA may result in GLO action to withdraw certification of all or any part of the Plan pursuant to 31 TAC §15.10(f).

Finally, the GLO has imposed conditions on certification in response to public comment on the Plan's provisions for vehicular control and beach access on the public beach in the geographic area between Access Points 1 and 2 (East Beach, extending from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park). The conditional certification of the City's Plan provides a method and incentive for achieving consistency with state standards for preserving and enhancing public beach access and use.

PARKING AND BEACH USER FEES

The GLO finds that the amendments to the City's Plan that adjust the boundaries of the Seawall Beach Urban Park, establish or increase beach user fees to be collected at the Seawall Beach Urban Park, Stewart Beach, R.A. Apffel Park, Dellanera Park, and east and west areas of Galveston Island are consistent with the OBA and the GLO's Beach/Dune Rules. The adopted amendments providing for approval of the increased beach user fees are justified because the fees are reasonable and necessary for the City to continue to fund and provide adequate beach-related services and facilities to the public. The City also established its need for additional funds to support beach nourishment projects. Further, the City established that the beach user fees that may be collected by the City under the Seawall Parking Plan are necessary for the City to provide adequate and improved beach-related services to the public including funding for beach nourishment, additional beach patrol towers, expanded beach cleaning, enhanced and additional portable restroom facilities, additional off duty police officers in high need areas, and customer service zones with permanent restrooms, waste cans, and concessionaires. The GLO recognizes that the City's authority to impose the Seawall parking fees is subject to voter approval under local law. If and when the City is able to impose such fees, the GLO finds them to be consistent with state law.

FULL CERTIFICATION FOR CITY OF GALVESTON BEACH ACCESS PLAN WITH RESPECT TO THE PUBLIC BEACH WEST OF THE EASTERN BOUNDARY OF STEWART BEACH, AND EAST OF THE WESTERN BOUNDARY OF R.A. APFFEL PARK.

With respect to the geographic areas served by that part of the Plan regulating vehicular traffic and beach access on the public beach west of the eastern boundary of Stewart Beach, and east of the western boundary of R.A. Apffel Park, the GLO has made an affirmative finding and determination that the Plan as amended by Ordinance No. 04-026, as understood by the GLO and as further detailed in the Plan-related documents and clarifications discussed herein, preserves and enhances the public's right to use and access the public beach and is consistent with the OBA and the GLO's Beach/Dune Rules. This determination is based explicitly on the representations and commitments of the City in the Implementation Element and the City's letter to the GLO dated June 16, 2004. The GLO will monitor implementation of the Plan as represented by the City including, but not limited to, required signage for public access and enforcement of sign violations in subdivisions. Failure to adhere to the Implementation Element may result in GLO action to withdraw certification of all or any part of the Plan pursuant to 31 TAC §15.10(f).

In making its determination of certification status for the different geographic areas of Galveston, the GLO took into consideration, among other things, the presumptive criteria set forth in 31 TAC §15.7(h)(1) of the Beach/Dune Rules. Under that rule, if vehicular access is restricted to a stretch of beach, beach access and use is presumed to be preserved if these criteria are met: One parking space on or adjacent to the beach for every fifteen linear feet of beach restricted to vehicular traffic (31 TAC §15.7(h)(1)(A)), ingress/egress ways no farther apart than 1/2 mile (31 TAC §15.7(h)(1)(B)), and conspicuous signage explaining the nature and extent of vehicular controls, parking areas, and access points (31 TAC §15.7(h)(1)(C)).

With respect to the geographic areas east of the western boundary of R.A. Apffel Park, the GLO finds that the combination of planned vehicular and pedestrian access, T-head parking, and planned signage satisfy the requirements of state law under the OBA and the Beach/Dune Rules. Specifically, the Plan for this geographic area meets the presumptive criteria of the Beach/Dune Rules for parking spaces, access point spacing (Access Point 1 is about one-half mile from the eastern shore of the island), and conspicuous signage.

With respect to the geographic area served by Access Point 2, primarily Stewart Beach, the GLO finds that the combination of planned on-beach parking, pedestrian and vehicular access from Seawall Boulevard, and planned signage satisfy the requirements of state law under the OBA and the Beach/Dune Rule. In its letter to the GLO dated June 16, 2004, the City stated that, "the [Galveston Island] Park Board Trustees recently completed modifications to the free parking area within Stewart Beach. Specifically, the free parking area previously located around the pavilion building at 621 Avenue L was relocated to the eastern portion of the park. According to the Park Board of Trustees, approximately 250 parking spaces can be accommodated in the paved parking area, which is equal or greater than what previously existed." The GLO has taken this representation into account making the affirmative finding justifying certification. Further, the GLO's finding is made with the understanding that in the event that the Seawall Parking Plan comes into force, thereby converting a number of adjacent free spaces on Seawall Boulevard into paid spaces, the City will provide additional free parking at Stewart Beach as needed to satisfy the requirements of state law.

With respect to the geographic areas from the western boundary of Stewart Beach through the areas served by Access Points 3 through 18, the GLO finds that the combination of a special use beach area with year-round vehicular access for certain persons, planned vehicular and pedestrian access and public dune walkovers, planned on-beach, off-beach and T-head parking, and planned conspicuous signage satisfy the requirements of state law under the OBA and the Beach/Dune Rules. Specifically, the Plan for this geographic area meets the presumptive criteria of the Beach/Dune Rules for parking spaces, access point, and conspicuous signage. While a variety of different types of access and parking are planned for this diverse stretch of beach, the GLO finds that the Plan adequately preserves or enhances beach access in this area.

With respect to the geographic areas served by Access Points 19 through 24, the Plan continues the existing policy of restricting vehicular access to this stretch of beach under the current conditional plan. The beach is very narrow in this area and vehicular traffic directly seaward of existing homes is not feasible. In its letter dated June 16, 2004, the City stated the following justifications for continuing vehicular restriction on this stretch of beach: "During the 2-1/2 year process to develop a comprehensive beach access plan, City staff evaluated many options for access along Galveston beaches. The beach area between AP 19 and AP 24 was determined to have the most dense development, much of which was implemented prior to the City annexing portions of the west end and the development of the state beach/dune rules.

"During the public plan development process, Staff presented options of allowing vehicular traffic to the subject beach via 16-Mile Road. However, after further review and discussions with applicable public safety departments, Staff determined that the beach area between AP 19 and AP 24 would not safely accommodate vehicular traffic.

"The physical conditions of the beach are not conducive to maintainable vehicular access. Due to the existing beach width, the City of Galveston remains concerned about public safety of vehicular traffic during normal high tides events. Additionally, the density of the entire area between Gulf Palms and Kahala Beach subdivisions, all of which was established prior to the adoption of the beach access standards, is not a viable location for on-beach vehicular driving."

The GLO finds these justifications to be a reasonable basis for restricting vehicular traffic. The GLO also finds that beach access to and use of this area is increased from current conditions under the amended Plan by expansion of on-beach parking at Access Point 18, the dedication of parking areas on streets within subdivisions, and the City's commitment to conspicuous signage and enforcement. These measures advance the public interest in that they provide equal or better protection of public access and use of the public beach in this area and justify a variance from the presumptive criterion of 31 TAC §15.7(h)(1)(A) of at least one parking space for each 15 linear feet of beach.

With respect to the geographic areas served by Access Points 25 through 36, the GLO finds that the combination of year-round unlimited vehicular access from AP 36 through AP 35, seasonal access from AP 35 through 34, planned vehicular and pedestrian access, planned on-beach, off-beach and T-head parking, and planned conspicuous signage satisfy the requirements of state law under the OBA and the Beach/Dune Rules. Specifically, the Plan for this geographic area meets the presumptive criteria of the Beach/Dune Rules for parking spaces, access points, and conspicuous signage.

With respect to the geographic areas served by Access Points 37 through 41 inclusive (West End, extending from Salt Cedar Avenue to San Luis Pass), the GLO has made an affirmative finding and determination that the Plan preserves and enhances the public's right to use and access the public beach and is consistent with the OBA and the GLO's Beach/Dune Rules, subject to its understanding of the Plan and clarifications by the City. As discussed below, the GLO bases its determination on the presumptive criteria of the Beach/Dune Rules with respect to parking and conspicuous signage. With respect to the access point spacing between AP 38, 39, and 40, the GLO certifies the Plan with a variance from the 1/2-mile spacing criterion because of the GLO's affirmative finding that City has demonstrated that the more visible, sustainable, and reliable access to be provided on the West End as development progresses will advance the public interest and will provide an equal or better level of protection of public access to and use of the public beach than strict adherence to the presumptive criterion would provide.

In its June 16, 2004, letter to the GLO, the City made the following clarifications: "The City of Galveston, through the public rule making process, determined that continuous vehicular access shall be limited on the west end of Galveston Island, beginning at [the western edge of] Bay Harbor Subdivision and extending west. The Galveston City Council, City Planning Commission and City staff have determined that designated off-beach parking areas (AP 38, AP 39, and AP 40) will better preserve the public's access to the adjacent beach through sustainable access. The current access provides for vehicular access only, which can be affected by tides and weather conditions. The subject area cannot provide reliable daily access for all citizens, and therefore, the City determined that improved, designated parking areas will provide a more safe and maintainable beach access option. . . .[T]here are currently no existing amenities in the subject area (west of Salt Cedar). At AP 39, the planned development will provide amenities such as . . . picnic areas, play ground area and access to a restaurant. . . . [P]ublic safety is a concern of the City; therefore, limiting areas where driving can occur in long, continuous stretches that may facilitate vehicles reaching high speeds was recommended for the subject beach easement. . . . . The spacing between planned Access Points 38-41 may exceed the recommended standard of no more than 1/2 mile between locations. However, parking areas will be improved with a paving material, identified with appropriate signage and will include pedestrian walkovers. Furthermore, the access points will be incorporated as part of the planned development, which will be more recognizable than the access currently provided. As previously stated, the current vehicular access can, at times, be affected by weather and tide events resulting in unreliable access. The City's plan provides for off-beach parking areas, setback from normal tidal influences, and therefore, will allow for more year-round access options than what currently exist."

The GLO agrees with the City's reasoned justifications for the phased-in restriction of vehicular traffic on the West End as development progresses, and finds that the Plan measures preserve or enhance the public's access to and use of the public beach. This determination is based explicitly on the City's clarifications and commitments of the City in the Implementation Element. Existing access to the areas presently served by Access Points 37 through 41 inclusive is often impeded by accumulation of windblown sand at existing ingress/egress ways at Salt Cedar Avenue and at the toll bridge area. In addition, the vehicular ingress/egress way at Salt Cedar Avenue can periodically be damaged by high tides. Further, the placement of reliable parking and access along this stretch of beach offers better access to those who chose not to drive on the beach from Salt Cedar to San Luis Pass because of uncertain driving conditions or lack of a vehicle suitable for driving on that terrain.

As the beach is closed to vehicular traffic upon completion of Substantial Physical Improvements, the Plan provides for the addition of on-beach parking west of Salt Cedar Avenue, new off-beach parking adjacent to the beach at AP 38, AP 39, and AP 40, and on-beach parking to serve the "seasonal access" area at Access Point 41. As development proceeds on the West End, the Plan requires and the City has committed to provide at least one parking space for each 15 linear feet of beach closed to vehicular traffic. Therefore, the GLO finds that the application of the Plan in this geographic area satisfies the presumptive criterion for parking in the Beach/Dune Rules, 31 TAC §15.7(h)(1)(A).

The Implementation Element and the City's clarifications provide for conspicuous signage at each new Access Point, indicating the location of parking and the availability of public beach access. The access point signage planned for F.M. 3005, the main road running parallel to the beach on the West End between Salt Cedar Avenue and the toll bridge area, will provide far more visible and better access to this stretch of beach than now exists from F.M. 3005. Therefore, the GLO finds that the application of the Plan in this geographic area satisfies the presumptive criterion for conspicuous signage in the Beach/Dune Rules, 31 TAC §15.7(h)(1)(C).

In addition, the GLO determines that the City's commitment to allow vehicular access to the West End until the completion of Substantial Physical Improvements, including parking, access points with dune walkovers (including a wheelchair accessible walkover at AP 39) and pedestrian pathways, and conspicuous signage at each Access Point is critical to the finding that the Plan preserves or enhances beach access. Moreover, the phasing in of vehicular restrictions in a way that preserves maximum vehicular access as development progresses is also crucial to the GLO's determination. Therefore, the portion of the West End beach served by each ingress/egress way may not be closed to vehicular traffic unless and until the City determines that Substantial Physical Improvements are in place at the respective Access Point. The City acknowledges the phasing in of the vehicular restrictions in the June 16, 2004 letter: "With regard to the planned implementation of restricted vehicular access west of Salt Cedar, the City of Galveston recognizes that 'substantial physical improvements' could occur on the adjacent private property simultaneously. However, the City of Galveston will not allow for the phased closure of the public beach to vehicular traffic in such a manner that would eliminate vehicular access where substantial physical improvements have not yet occurred. . . . [T]he City acknowledges that the vehicular access way at AP 41 (San Luis Pass) must be completed before blocking westward beach access via Salt Cedar Avenue. Additionally, if the beach in front of Playa San Luis Subdivision is bollarded because substantial physical improvements are in place, the progressive restriction of vehicular traffic can only proceed to adjacent access point areas to the west. The City understands that the proposed seasonal access area between Access Points 40 and 41 cannot be closed to vehicular traffic until substantial physical improvements are in place for all the access points between Salt Cedar and San Luis Pass."

The GLO also recognizes that prohibiting vehicular access at AP 41 under the "seasonal access" provision would block vehicular access to the beach adjacent to AP 38, 39 and 40 from the west. If vehicular access to the public beach is prohibited at any of the Access Points between Salt Cedar Avenue and AP 41 because Substantial Physical Improvements are in place, the City must not block vehicular access at AP 41 under the "seasonal access" provision until the entire length of the beach is closed to vehicular traffic in accordance with Section 29-90. Further, the GLO understands that the westward vehicular access to San Luis Pass via Salt Cedar Avenue will not be blocked until the road access at AP 41 is improved to provide reliable, regularly maintained vehicular access. Based on these understandings and as reflected in the final rule, the GLO finds that the measures providing for additional off-beach parking and ingress/egress ways in this area provide a more dependable and versatile means of access for the public, including disabled persons. These measures advance the public interest in that they provide equal or better protection of public access and use of the public beach in this area than the presumptive criterion and justify a variance from the presumptive criterion of 31 TAC §15.7(h)(1)(B) of no more than 1/2 mile between Access Points 38 and 39, and between Access Points 39 and 40. Failure of the City to comply with the Plan may also result in GLO action to withdraw certification of all or any part of the Plan pursuant to 31 TAC §15.10(f).

CONDITIONAL CERTIFICATION FOR CITY OF GALVESTON BEACH ACCESS PLAN WITH RESPECT TO THE PUBLIC BEACH EAST OF THE WESTERN BOUNDARY OF STEWART BEACH AND WEST OF THE EASTERN BOUNDARY OF R.A. APFFEL PARK.

In response to comment, the GLO revised the proposed rule to retain the conditionally certified status of the City's Plan with respect to the geographic area between Access Points 1 and 2 (East Beach, extending from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park). Although the Plan explicitly prohibits vehicular traffic on this area of the beach, neither the description of the Access Points in Appendix A nor the Final Beach Access Map supply sufficient information to support the Plan's own requirements with respect to beach access and off-beach parking. The distance between AP 1 and AP 2 is approximately two miles. Although there are a few existing pedestrian walkways through the dunes between AP 1 and AP 2, the City has not designated them as Access Points in the Plan. Moreover, the Final Beach Access Map does not reveal the location of off-beach parking to support this stretch of beach that is currently inaccessible to vehicles because of bollards. The GLO has received a commitment from the City to designate public pedestrian pathways between AP 1 and AP 2 and to provide for adequate off-beach parking. In its letter dated June 16, 2004, the City made the following statements regarding East Beach: "As stated in correspondence dated May 7, 2004, with regard to off-beach parking, the City of Galveston committed to providing off-beach parking areas, temporary in nature, on private property. Specifically, the City has secured agreements . . . to dedicate interim parking areas between and to the east of the two (2) existing condominium developments. The amount of parking will be sufficient to satisfy the state standard of one (1) parking space for every fifteen linear feet (15') of the undeveloped property on which the parking lots will be designated. . . . . [S]ignage has been installed, and additional signage will be added upon designation of the interim parking areas. . . . As development advances, the parking areas will be modified into the permanent developments."

In addition, the City represented in its letter dated June 16, 2004, that approximately 250 free parking spaces would be relocated to a paved parking area in the eastern portion of Stewart Beach. The GLO recognizes that this parking area will serve the Stewart Beach area, as well as the "special use" area to the east of AP 2.

The GLO appreciates the City's recent efforts to enhance beach access in this area. However, in order to continue to restrict vehicular access to the public beach from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park, the City must amend its Plan to comply with the presumptive criteria for parking spaces, spacing between beach ingress/egress ways, and conspicuous signage set forth in 31 TAC §15.7(h)(1) within 180 days of the effective date of this amendment. The City may request a variance from these provisions if it provides a reasoned justification and demonstrates that the variance will advance the public interest and provide equal or better protection of public access to and use of the public beach in accordance with 31 TAC §15.3(o)(6)(B). The GLO will condition its affirmative finding that the Plan as amended preserves and enhances the public's right to use and access the public beach upon the inclusion of the following specific measures in the amended Plan:

(A) Two existing pedestrian ingress/egress ways between the Galvestonian and the west entrance to R.A. Apffel Park marked with conspicuous signage as public access;

(B) A pedestrian ingress/egress way with appropriate conspicuous signage must be provided between the Islander East and Galvestonian;

(C) A pedestrian ingress/egress way with appropriate conspicuous signage at the approximate location of an existing path that is located near the eastern end of the "restricted" or "special use" area;

(D) Interim off-beach parking on or adjacent to East Beach Road that meets the presumptive criterion for parking spaces on or adjacent to the beach set forth in §15.7(h)(1)(A) of this title of one parking space for each 15 linear feet of beach for the area from the eastern boundary of Stewart Beach to the ingress/egress way at R.A. Apffel Park Road, with at least one parking lot located between the Islander East and the Galvestonian, and at least one other parking lot located to the east of the Galvestonian in proximity to the existing pedestrian ingress/egress ways;

(E) A parking lot at Stewart Beach located immediately adjacent to the "special use" area with a sufficient number of free parking spaces to satisfy the requirements of state law;

(F) Interim parking referred to in subparagraph (D) of this paragraph must be maintained by the City unless or until it is replaced with permanent parking on or adjacent to the beach south of East Beach Road.

The rule as amended provides that the City must open the beach to vehicular access from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park if it fails to amend the Plan within 180 days and complete the specific measures set forth in new §15.36(d)(1) within 270 days of the effective date of this amendment. The conditional certification of the City's Plan provides a method and incentive for achieving consistency with state standards for preserving and enhancing public beach access and use in this area. The City's commitment and adherence to the Implementation Element, as well as the measures outlined by the City in its letter dated June 16, 2004, are essential to the GLO's determination that the Plan preserves and enhances public access to and use of the beach. The affirmative finding of the GLO that the conditionally certified part of the Plan will preserve and enhance the public access to and use of the beach justifies the adopted amendments with conditional certification status. The GLO will monitor compliance with these conditions by the City. Failure to comply with these conditions by the City may also result in GLO action to withdraw certification of the Plan with respect to this area pursuant to 31 TAC §15.10(f) and/or §15.21(c).

SUMMARY OF COMMENTS

The GLO conducted a public hearing to receive public comment on the proposed amendments to §15.36 at the Seabrook Community Center, 1210 Anders, Seabrook, Texas, on March 31, 2004. In addition to the public hearing, and the 30 day comment period specified in the notice of proposed rulemaking published in the March 19, 2004, issue of the Texas Register (29 TexReg 2849), the GLO extended the comment period to May 7, 2004, to address an inadvertent error in the original notice indicating an incorrect electronic mail address for submission of written comments. Notice of the extension was provided in the April 30, 2004, issue of the Texas Register (29 TexReg 4311) and was covered in the local Galveston newspaper. The GLO gave due consideration to all comments received by the agency.

Representatives of the following organizations provided comments generally in favor of the proposed rulemaking: Pirate's Beach Property Owners, Pointe San Luis Home Owners Association (with reservations), West Galveston Island Property Owner's Association (with reservations), Galveston County Envision Task Force, Centex Destination Properties, San Luis Development L.P., Save Our Seawall PAC, and City of Galveston Park Board of Trustees.

Representatives of the following organizations provided comments generally opposed to the proposed rulemaking: Sierra Club, Texas Open Beach Advocates (TOBA), Surfrider Foundation, American Kiteflyers Association, Bay Harbor Improvement Association, San Jacinto Neighborhood Association, Fort Crocket Neighborhood Association, Let Galveston Vote PAC, Surf-Masters Fishing Team, Sea Isle Property Owners, Bay Harbor Property Owners, Terramar Property Owners, Kingwood Property Owners, Victoria Property Owners, Texas Fishermen, Coastal Fishing Alliance, and Public Interests.

Several commenters complained about the location of the public hearing for this rulemaking. The location, suggested by critics of the Plan, provided all interested persons a reasonable opportunity to submit data, views, or arguments, orally or in writing. One commenter representing TOBA asserted that the GLO should be required to republish the proposed rule due to an incorrect e-mail address for the submission of written comments in the original notice. Counsel for the GLO has reviewed the process for proposing and adopting these rules and determined that the Land Office has complied with Texas Government Code provisions regarding the rulemaking process. No change was made based on these comments.

Several commenters, including representatives of the Sierra Club and San Jacinto Neighborhood Association, stated that the approval of the City's Seawall Parking Plan should be postponed until after the Seawall Charter amendment election. The GLO disagreed that the Plan certification must be postponed pending the election. As a practical matter, however, the Charter amendment election occurred before the filing of this final adoption notice regarding certification status of the Plan. Although the GLO has certified that the beach user fees provided for in the City's Seawall Parking Plan are consistent with the OBA and the GLO's Beach/Dune Rules, the Charter amendment election may affect the ability of the City to collect the beach user fees authorized for parking at the Seawall Beach Urban Park by Ordinance No. 04-021 passed by the City on January 29, 2004. In order to implement the parking fees along Seawall Boulevard as set forth in Ordinance No. 04-021, the City may choose to hold an election and receive voter approval. The reasoned justification for the GLO's certification is that the City has demonstrated that the increased fees are reasonable and necessary for the City to provide adequate and improved beach-related services to the public including funding for beach nourishment, additional beach patrol towers, expanded beach cleaning, enhanced and additional portable restroom facilities, additional off-duty police officers in high need areas, and customer service zones with permanent restrooms, waste cans, and concessionaires. No change was made in response to these comments.

One commenter stated that the Seawall Parking Plan is the equivalent of putting a toll on the beaches, which are thus not "accessible." The GLO disagrees because beach user fees are allowed under the OBA and the GLO's Beach/Dune Rules, and must be used to support beach-related services. Also, the Plan includes provisions for free parking, consistent with the OBA and the Beach/Dune Rules. No change was made in response to this comment.

One commenter representing the San Jacinto Neighborhood Association stated that the Seawall Parking Plan did not have data to support it, and that there were problems with the survey conducted by the City regarding the Seawall Parking Plan. The GLO disagrees with the commenter because it determined that the fees are reasonable and necessary to fund and provide adequate beach-related services and facilities to the public. In addition, the survey methods of the City are not relevant to the whether the Seawall Parking Plan is consistent with the OBA, the Dune Protection Act (§§63.001 - 63.181, Texas Natural Resources Code), and the GLO's Beach/Dune Rules. No changes were made based upon these comments.

One commenter indicated that other options exist to raise money for beach services than those in the Seawall Parking Plan. Although other options exist for the City to raise money, the City is allowed by §61.011(b) of the OBA to charge beach user fees specifically in order to fund beach-related services. No change was made in response to this comment.

Several commenters, including representatives of the City of Galveston Park Board of Trustees and the Save Our Seawall PAC, stated that the Seawall Parking Plan's revenues will be used to fund beach improvements such as lighting, showers, and beach nourishment. The GLO agrees because all beach user fees must be used to support beach-related services. No change was made in response to this comment.

Numerous commenters, including representatives of TOBA, Surfrider Foundation, American Kiteflyers Association, Kite Flyers of Texas, Bay Harbor Improvement Association, San Jacinto Neighborhood Association, Fort Crocket Neighborhood Association, Let Galveston Vote PAC, Surf-Masters Fishing Team, Sea Isle Property Owners, Bay Harbor Property Owners, Terramar Property Owners, Kingwood Property Owners, Victoria Property Owners, Texas Fishermen, Coastal Fishing Alliance, and Public Interests stated that the beach should be kept open to vehicular traffic in the San Luis Pass area and that the off-beach parking is inadequate. Many claimed that limiting vehicular access to the beach does not provide "equal or better" access as required in the OBA, and that historic access would only be preserved if the beaches are left open to vehicular access. Many of these commenters stated that they used the beach for fishing and that vehicular traffic is necessary. Some commenters stated that the OBA requires that all beaches must be open to vehicular traffic. Many of these commenters also stated that safety laws concerning vehicular traffic on the beach should be enforced, rather than limiting vehicular access to the beaches. The GLO agrees that law enforcement of traffic violations is an important component of managing beaches that are open to vehicular access. However, the GLO disagrees that the City must keep all beaches open to vehicular access. The OBA §61.022(b) allows a local government to regulate vehicular traffic, including possible prohibition of vehicles, as long as such regulation is consistent with the OBA and the Beach/Dune Rules. The OBA §61.011(d)(3) authorizes the commissioner to promulgate rules regarding "local government prohibitions of vehicular traffic on public beaches, provision of off-beach parking, and other minimum measures needed to mitigate for any adverse effect on public access and dune areas." The procedures set forth in 31 TAC §15.7 provide that a local government, upon certification by the GLO following notice-and-comment rulemaking, can prohibit vehicular traffic on areas of the beach as long as the public's access to and use of the public beach is preserved or enhanced. The GLO disagrees with the commenters that the Plan, which allows restriction of vehicular access to portions of the beach in the San Luis Pass area does not provide "equal or better" access as required in the OBA, and that historic access would only be preserved if the beaches are left open to vehicular access. In the City's Plan, the public's right of access to and use of the public beach will be provided for through a combination of vehicular access and on-beach and off-beach parking with pedestrian access. For example, the City's Plan takes into account the historic use of the San Luis Pass area, including use by fishermen, by providing 3,200 linear feet of unrestricted vehicular access around the San Luis Pass area and 1,200 linear feet of seasonal vehicular access east of Access Point 41 at San Luis Pass. Existing access to the areas presently served by Access Points 36 through 41 inclusive is often impeded by accumulation of windblown sand at existing ingress/egress ways at Salt Cedar Avenue and at the toll bridge area. In addition, the vehicular ingress/egress way at Salt Cedar Avenue can periodically be damaged by high tides. The Plan provides for the addition of off-beach parking areas, pathways, and a wheelchair accessible walkover in the areas served by Access Points 38 through 40 inclusive, as well as improved vehicular access at Access Point 41. Also, the placement of reliable parking and access along the West End offers better access to those who chose not to drive on the beach from Salt Cedar to San Luis Pass because of uncertain driving conditions or lack of a vehicle suitable for driving on that terrain. Further, the placement of conspicuous signage along F.M. 3005 designating beach access and parking, provided for in the Implementation Element and confirmed in the City's letter of June 16, 2004, will provide better access than currently exits. Because the restriction of vehicular access to the beach on the West End will take place over a period of months, the restrictions must proceed in a manner that preserves vehicular access to the beach until adequate parking, access points, and signage are in place. Therefore, the portion of the beach served by these ingress/egress ways may not be closed to vehicular traffic unless and until completion of "Substantial Physical Improvements" is determined by the City, including parking that meets the presumptive criterion for parking spaces on or adjacent to the beach set forth in 31 TAC §15.7(h)(1)(A). Access is preserved or enhanced and the public interest is advanced with the addition of off-beach parking areas that provide a more dependable and versatile means of access for the public, including disabled persons. The City's commitment and adherence to the presumptive criterion for parking spaces on or adjacent to the beach set forth in 31 TAC §15.7(h)(1)(A) in this area, the City's commitments in its June 16, 2004, letter, and the Implementation Element are essential to the GLO's determination that the Plan preserves and enhances public access to and use of the beach. Although the GLO has determined that there is justification for full certification of the Plan in this area, in response to comments, the finally adopted rule in new §15.36(e) provides for specific minimum measures needed to mitigate for any adverse effect on public access under the authority of §61.011(d)(3) of the OBA.

One commenter representing TOBA states that the Plan provides inadequate parking where it limits vehicular traffic on the beach in the Pointe San Luis area for a distance of approximately 11,410 linear feet. The commenter asserts that the Plan provides only 300 parking spaces for this stretch of beach, where at least 760 are required by state standards. With respect to the number of parking spaces provided in the Plan, the GLO notes that the Plan states that the off-beach parking areas at Access Points 38, 39, and 40 shall include a "minimum" of 100 parking spaces. The GLO agrees that a total of 300 parking spaces for this stretch of beach would be inadequate to meet the requirements of Section 29-90(o)(1), Galveston City Code, and state law. In its June 16, 2004 letter responding to the GLO's request for clarification concerning the number of parking spaces to be available in the West End, the City stated that "the actual number of parking places necessary to comply with the state standard will be determined at such time of the final plat. From recent surveys, City planning staff estimates the following number of minimum number of parking spaces will be needed to be dedicated for public use: [1] AP 38 - 125 spaces [2] AP 39 - 150 spaces [3] AP 40 - 200 spaces..." According to GLO's understanding, two large on-beach parking areas are available on adjacent beaches on both the eastern and the western boundaries of the stretch of beach that will be restricted to vehicular traffic. To the east, the wide beach adjacent to Access Point 36 and Playa San Luis Subdivision includes a large on-beach parking area. To the west, the wide beach adjacent to the seasonal access area at Access Point 41 includes a large on-beach parking area. These parking areas are taken into account in GLO's consideration of the beach access available in this area. The Plan also provides for street parking in the Playa San Luis subdivision at Access Point 37. The portion of the beach served by these ingress/egress ways may not be closed to vehicular traffic unless and until completion of "Substantial Physical Improvements" is determined by the City, including parking that meets the presumptive criterion for parking spaces on or adjacent to the beach set forth in 31 TAC §15.7(h)(1)(A) and as provided in Section 29-90(o)(1), Galveston City Code, calculated at one (1) space for each 15 linear feet of beach frontage. In response to this comment, the finally adopted rule in new §15.36(e) clarifies the requirements and circumstances under which restriction of vehicular traffic on the beach in the Pointe San Luis area may be implemented.

The same commenter also states that the distance between the access points in the San Luis Pass area exceeds one-half mile, contrary to state standards. The GLO agrees with the commenter that the distance between some of the ingress/egress ways in this area exceeds the presumptive criterion in 31 TAC §15.7(h)(1)(B). Nonetheless, parking lots adjacent to the beach and walkways provide better access than currently exists for persons without all terrain vehicles. Improved roads to parking lots and conspicuous signage on F.M. 3005 will also provide better access than currently exists. The combination of parking lots, improved roads to parking lots, dune walkovers, and conspicuous signage provide a more dependable and versatile means of access for the public, including disabled persons. The City's commitment and adherence to the presumptive criterion for parking spaces on or adjacent to the beach, conspicuous signage, and enforcement in this area, as well as the Implementation Element are essential to the GLO's determination that the Plan preserves and enhances public access to and use of the beach. No change was made in response to this comment.

Numerous commenters, including representatives of TOBA, Surfrider Foundation, Fort Crocket Neighborhood Association, Let Galveston Vote PAC, Sea Isle Property Owners, Victoria Property Owners, Texas Fishermen, Coastal Fishing Alliance, and Public Interests expressed similar concerns that the beach should be open to vehicular traffic in the East Beach area and that the off-beach parking is inadequate. They also claimed that limiting vehicular access to the beach does not provide "equal or better" access as required in the OBA in this area, and that historic access would only be preserved if the beaches are open to vehicular access. Many of these commenters stated that they used the beach for fishing and that vehicular traffic is necessary. Commenters also asserted that East Beach had been illegally closed to vehicular traffic for a number of years. The GLO agrees that the City's Plan as submitted does not adequately identify how the Plan meets state standards intended to preserve or enhance the public's right of access to and use of the public beach in the East Beach area. The City's Plan as submitted provides for closure of the public beach to vehicular traffic for stretches in excess of one mile in the East Beach area, leaving some areas of the beach farther than one-half mile from the closest ingress/egress ways. In addition, the City's Plan calls for off-beach parking in the East Beach area where either the parking area does not exist, or the precise location of the off-beach parking area cannot be determined under the Plan as submitted. However, in order to restore and preserve historic use by fishermen and others members of the public with special needs, the City's Plan does provide for 2,640 linear feet of vehicular access in a special use area for persons with disabilities, saltwater fishermen, and launching of non-motorized personal watercraft on East Beach adjacent to Stewart Beach. As previously discussed, the GLO has received a commitment from the City to designate public pedestrian pathways between AP 1 and AP 2 and to provide for adequate off-beach parking. In its letter dated June 16, 2004, the City made the following statements regarding East Beach: "As stated in correspondence dated May 7, 2004, with regard to off-beach parking, the City of Galveston committed to providing off-beach parking areas, temporary in nature, on private property. Specifically, the City has secured agreements . . . to dedicate interim parking areas between and to the east of the two (2) existing condominium developments. The amount of parking will be sufficient to satisfy the state standard of one (1) parking space for every fifteen linear feet (15') of the undeveloped property on which the parking lots will be designated. . . . . [S]ignage has been installed, and additional signage will be added upon designation of the interim parking areas. . . . As development advances, the parking areas will be modified into the permanent developments." In addition, the City represented in its letter dated June 16, 2004, that approximately 250 free parking spaces would be relocated to a paved parking area in the eastern portion of Stewart Beach. The GLO recognizes that this parking area will serve the Stewart Beach area, as well as the "special use" area to the east of AP 2. Although the City was responsive to requests from the GLO for information to clarify its Plan with respect to this area and agreed to undertake the specific measures outline in its letter dated June 16, 2004, the GLO has changed the proposed rule in response to public comment to retain the conditional certification status for the City's Plan with respect to the area extending from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park. The conditions in new §15.36(d) provide for specific minimum measures needed to mitigate for any adverse effect on public access under the authority of §61.011(d)(3) of the OBA, and establish incentives for achieving consistency with state standards for preserving and enhancing the public's right of access to and use of the public beach.

Several commenters, including representatives of TOBA, assert that the Plan as submitted by the City has insufficient detail with respect to east and west ends of Galveston Island to determine consistency with the OBA, the Dune Protection Act, and the GLO's Beach/Dune Rules. The GLO disagrees with these commenters. Although the GLO sought clarification, the GLO finds that the City's submission in support of its request for Plan certification substantially complied with requirements of state law. The Plan amendments that are the subject of this final adoption notice and the information supporting them are described in more detail above, and include the Final Beach Access Map, the Beach Access Definitions, the Implementation Element, plats for Phases I and II of the Pointe San Luis Subdivision, and written clarifications from the City in its letter dated June 16, 2004, requested by the GLO concerning the City's implementation of the Plan. Many of these documents are available on the City's web site at http://www.cityofgalveston.org/pdf/04p72stf.pdf at the time of the filing of this final adoption notice. No change was made in response to these comments other than retaining the conditional certification with respect to East Beach and clarifying the requirements for limiting vehicular access to the beach in the Pointe San Luis area.

One commenter representing TOBA stated that the Plan was submitted without all of the supporting documentation required by 31 TAC §15.7(i). The GLO disagrees with this commenter. Although the information submitted with the initial request for Plan certification lacked specificity and clarity in some respects, the City has been responsive to requests by the GLO for additional documentation and has expressed willingness to comply with the conditions outlined in this final adoption notice. The GLO finds that the City's submission in support of its request for Plan certification substantially complied with requirements of state law. The Plan amendments that are the subject of this final adoption notice and the information supporting them are described in more detail above, and include the Final Beach Access Map, the Beach Access Definitions, the Implementation Element, initially filed plats for Phases I and II of the Pointe San Luis Subdivision, and written clarifications from the City in its letter dated June 16, 2004, requested by the GLO concerning the City's implementation of the Plan. Many of these documents are available on the City's web site at http://www.cityofgalveston.org/pdf/04p72stf.pdf at the time of the filing of this final adoption notice. No change was made in response to this comment.

Several commenters, including representatives of TOBA, stated that Texas beaches are state property and should remain open to the public. The GLO disagrees with the commenter for the following reasons: The boundary of state-owned submerged land is the line of mean high water or mean higher high water, depending upon the nature of the original grant. Landward of that boundary, the land may be privately owned, although impressed with the public beach easement. The GLO is charged with enforcing the public's right of access to and use of the public beach under the OBA. The City's Plan, together with the required conditions in this final adoption notice, preserve and enhance the public's right of access to and use of the public beach. No change was made in response to this comment other than retaining the conditional certification as discussed above.

Several commenters, including representatives of TOBA, Surfriders, Sea Isle Property Owners, Kingwood Property Owners, Fort Crocket Neighborhood Association, Let Galveston Vote PAC, and Surf-Masters Fishing Team, stated that because the City has not complied with its current Plan, the GLO should not certify the City's amended Plan. Comments include the following: the City's prior conduct at Seawolf Park shows a history of poor conduct because the commenter had to pay to park and fish even if he didn't use the fishing pier; the City is currently in violation of the OBA; a few people are causing damage to the dunes with vehicles; the City needs to put signs every half-mile; there is inadequate funding of beach-related services; subdivisions designated for public access are closed to traffic; and the beach has been closed illegally. The GLO disagrees that the City's Plan cannot be certified at this time because of past non-compliance issues. However, the GLO is committed to enforcement of and compliance with the amended Plan as certified by this rule. The GLO has directed the City to correct reported violations of the City's Plan. Methods of enforcing the provisions of the City's Plan include notification and correction of individual violations. The GLO agrees with the commenters that all illegal or non-compliant signs should be removed immediately. All signs and bollards must be consistent with the Plan, the OBA, the Dune Protection Act, and the GLO's Beach/Dune Rules. On-beach and off-beach parking referenced in the Plan must be available and subdivisions designated for public access must not close those areas to public access. The City's commitment and adherence to the Implementation Element, including signage and enforcement, are essential to the GLO's certification of the Plan. In addition, GLO enforcement options include possible decertification of all or a portion of the City's Plan and referral to the Office of the Attorney General. No changes were made to the rule in response to these ongoing enforcement concerns. However, the GLO will monitor compliance with the Plan.

Several commenters, including representatives of TOBA, Fort Crocket Neighborhood Association, Let Galveston Vote PAC, and American Kiteflyers Association, stated that the Plan results in beaches in Texas becoming "private" beaches. One commenter suggested, without offering supporting evidence, that the Plan's limit of vehicular access to areas of the beach is based on racial and age-related issues. The GLO disagrees with the commenters because the City's Plan, together with conditions imposed, preserves and enhances the public's right of access to and use of the public beach through a combination of vehicular access, on-beach, and off-beach parking with pedestrian access. For example, the City's Plan takes into account the historic use of the San Luis Pass area by fishermen by providing 3,200 linear feet of unrestricted vehicular access around the San Luis Pass area and 1,200 linear feet of seasonal vehicular access east of Access Point 41 at San Luis Pass. In addition, the City's Plan provides for 2,640 linear feet of vehicular access in a special use area for persons with disabilities, saltwater fishermen, and launching of non-motorized personal watercraft on East Beach. Vehicular access is integrated within several currently developed subdivisions by incorporation of T-heads and parking on streets within these subdivisions. The City's commitment and adherence to the Implementation Element, including signage and enforcement, are essential to the GLO's determination that the Plan preserves and enhances the public's right of access to and use of the public beach. No change was made based on these comments.

Several commenters addressed concerns regarding the effect of vehicular access on sea turtle nesting areas. Three commenters, including a representative of TOBA, stated that vehicular access is not a danger to sea turtles and would allow people to identify sea turtle nesting areas more easily. The GLO disagrees that vehicular access is required to identify sea turtle nesting sites for the reason that pedestrian access is adequate for such purpose. One commenter representing TOBA suggested that other restrictions should be required, such as lighting regulations for nesting areas. The GLO disagrees with this commenter for the reason that such regulations are beyond the scope of this rulemaking. One of the commenters stated that vehicles can crush sea turtles. The GLO agrees that any activity on vehicular or pedestrian beaches should conform to applicable laws for the protection of endangered species. However, the GLO has not received sufficient evidence in this rulemaking to substantiate that vehicular access to the public beach is detrimental to nesting sea turtles and warrant further restrictions on vehicular access to the public beach. No change was made in response to these comments.

Several commenters, including a representative of TOBA, stated that geotextile tubes restrict access to the beach, damage the beach, and should be removed. Other commenters expressed support for geotextile tubes. These comments are not directly related to this rulemaking as shore protection projects are addressed by other provisions of the GLO's Beach/Dune Rules and the goals and policies of the Coastal Coordination Council. Further, existing shore protection projects in the City that include geotextile tubes are consistent with the OBA, the Dune Protection Act, and the GLO's Beach/Dune Rules through a memorandum of agreement between the City and the GLO. New shore protection projects in the City that include geotextile tubes must be consistent with the GLO's Beach/Dune Rules and the goals and policies of the Coastal Coordination Council. No change was made in response to these comments.

One commenter representing TOBA stated that large areas of beach are being covered with mud. The comment appears to relate to a project to renourish a beach on West Galveston Island under the Coastal Erosion Planning and Response Act (CEPRA). The CEPRA project is not part of the City of Galveston's Plan, and therefore the comment is not directly relevant to the Plan. Another commenter complained that foreign material was put in the beach/dune system under the emergency rules. The GLO is not aware of the situation in the comment. Any foreign material, as we interpret that term, introduced into beach fill or dunes is not consistent with the GLO's Beach/Dune Rules. The emergency rules were a temporary measure to allow protection during hurricane season. The GLO disagrees with the commenters based upon relevancy of the comments to the Plan. The Plan is consistent with the GLO's Beach/Dune Rules regarding sand quality for placement within the beach/dune system. No change was made based on these comments.

One commenter stated that there is a sewage problem and a wastewater treatment plant is needed instead of underground septic systems. While the comment is not directly relevant to the Plan and is largely outside the scope of this rulemaking, the GLO agrees that adequate sewage facilities must be provided in applications for construction in the beach/dune system. Because the City's Plan is consistent with the GLO's Beach/Dune Rules regarding sewage facilities, no change was made in response to this comment.

Several commenters stated that the City's Plan should increase the setback from the north toe of the dune for paving or altering the ground below the lowest habitable floor of a structure in beachfront construction standards. The GLO disagrees with the commenters for the reason that the local government should retain the discretion to address this issue in its Plan. No change was made in response to these comments.

Several commenters, including a representative of TOBA, stated that the Plan should not be certified because of conflicts of interest on the part of city and/or park board officials. The GLO expresses no opinion with regard to the allegations, and also disagrees with the commenters based upon relevancy. The issue before the GLO was whether the Plan as submitted by the City is consistent with the OBA, the Dune Protection Act, and the GLO's Beach/Dune Rules. No changes were made based upon these comments.

One commenter representing TOBA stated that there were problems with the manner in which the Plan was reviewed and approved by the City in March of 2003. The GLO expresses no opinion with regard to the allegations, and also disagrees with the commenters based upon relevancy. The issue before the GLO was whether the Plan as submitted by the City is consistent with the OBA, the Dune Protection Act, and the GLO's Beach/Dune Rules. No changes were made based upon these comments.

Several commenters, including a representatives of TOBA and Terramar Property Owners, stated that under the City's Plan the beaches are not accessible as required by the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq. The GLO disagrees with the commenters because the Plan provides access either vehicular or non-vehicular in a non-discriminatory manner to persons with disabilities as required by ADA. The Architectural and Transportation Barriers Compliance Board (Access Board) is the federal agency responsible for developing accessibility guidelines under the ADA to ensure that new construction and alterations of facilities covered by titles II and III of the ADA are readily accessible to and usable by individuals with disabilities. The Access Board created the Outdoor Developed Areas Regulatory Negotiation Committee to achieve a consensus approach and developing accessibility guidelines for outdoor developed areas such as trails, picnic and camping facilities, and beaches. The Committee represented people with disabilities, owners and operators of outdoor developed areas, federal, state, and local land management agencies, designers, and trails groups. The Report from the Outdoor Developed Areas Regulatory Negotiation Committee was submitted to the Board in September 1999 (available at http://www.access-board.gov/outdoor/outdoor-rec-rpt.htm.). However, the Access Board has not published rules adopting the guidelines recommended in the Report. In its June 16, 2004 letter to the GLO, the City stated as follows: "With regard to access for persons with disabilities, the City closely monitors the Federal Access Board website for the potential development of regulations that may apply to public beaches. As currently noted within the Access Board's research material, while it is considered an enhancement, vehicular driving does not equal access for persons with disabilities. The public parking area at AP 39 will provide a walkover that will be constructed for use by persons with disabilities, which is currently unavailable." The GLO understands that the City is committed to providing ADA-compliant walkovers for off-beach parking as required by law. In addition, the City is committed in its Implementation Element to amending local regulations as required by law upon final adoption of the Access Board's Accessibility Guidelines for Outdoor Developed Areas. The GLO appreciates input concerning enhanced access for special needs groups and is exploring new technologies which may enhance access from parking areas and dune walkover areas to the wet beach. No change was made in response to these comments.

One commenter pointed out that the Plan does not address whether a golf cart would be permitted where vehicles are prohibited from driving on the beach. The GLO agrees that the Plan does not directly address the issue. In its June 16, 2004, letter, the City made the following clarification: "The City of Galveston Zoning Standards, Section 29-54: Sand Dune Definitions define motor vehicle as the following: Motor vehicle or vehicle--A vehicle as defined by the Texas Uniform Traffic Act, Art. 6701d, Texas Revised Civil Statutes Annotated. . . . [T]he City of Galveston has determined that golf carts are considered motor vehicles, and therefore, are only permitted in those areas of the beach that allow vehicular traffic/parking. However, the City of Galveston recognizes the use of golf carts by persons with disabilities as a means of accessing the beach where vehicles are not permitted." The GLO understands that City ordinances prohibit motorized conveyances such as golf carts from driving any stretch of beach restricted to vehicular traffic, with certain exceptions for handicapped persons. Based on this understanding of local law, the GLO considers a golf cart to be a vehicle for purposes of vehicular restrictions except for permitted handicapped uses. Enforcement would be the responsibility of the local government. No change was made in response to this comment.

One commenter representing TOBA stated that it would be difficult to get a stroller out to the beach. The GLO disagrees that the Plan must specifically provide accommodations for parents of infants in strollers. However, the City may wish to monitor the use of these "special" or "restricted" use areas under the Plan and consider modifying these areas to meet the needs of a diversity of beach users such as parents with infants in strollers. No change was made in response to this comment.

One commenter representing TOBA expressed support for an annual permit system to provide additional financial support for beach-related services, including improved trash collection and law enforcement. The GLO agrees with the commenter and recognizes that the Plan provides for a $25.00 annual pass for east and west areas of Galveston Island other than designated parks. No change was made based on this comment.

Numerous commenters, including representatives of the West Galveston Island Property Owners Association, Terramar Property Owners, and Sea Isle Property Owners, stated that vehicular traffic should not be allowed on the beach. The commenters had various reasons, including the following: vehicular traffic destroys sand dunes; it is dangerous to pedestrians, especially children; it causes pollution and trash; and it is dangerous to wildlife, including sea turtles. Some of the commenters stated that better enforcement of traffic laws is needed. One of the commenters specifically objected to vehicular traffic from Stewart Beach to East Beach. The GLO disagrees that vehicular traffic should not be allowed on the beach. The OBA permits restriction of vehicular traffic on beaches where adequate access, parking, and signage are provided. The City's Plan, when considered with the conditions required by GLO, offers a combination of access by vehicular, on-beach, and off-beach parking, which are consistent with the OBA, the Dune Protection Act, and the GLO's Beach/Dune Rules. Provisions in the Plan require that access, either vehicular or pedestrian, must be constructed, permitted, and regulated in a way that does not damage dunes or dune vegetation. The GLO agrees that enforcement of traffic laws is necessary to provide safety along both vehicular and pedestrian beaches. The City has the authority to close the beach to vehicular access in order to preserve public safety, consistent with the OBA and GLO's Beach/Dune Rules. No change was made in response to these comments.

Several commenters stated that they supported approval of the Plan limiting vehicular access to the beach, except for the portion of the Plan permitting vehicular access in the area of Access Points 33 through 36. The commenters stated that if the beach in front of one neighborhood is open to vehicles, it should be open in front of all neighborhoods. The GLO disagrees with the commenters because the City should have the discretion to develop a plan that offers a diversity of access. Vehicular access is integrated within several currently developed subdivisions by incorporation of T-heads and parking within subdivisions. The existing subdivision in the area in question has sparse development and conditions do not favor more dense development because of the short distance between the line of vegetation and F.M. 3005. No change was made based on these comments.

Numerous commenters, including representatives of Pirate's Beach Property Owners, Pointe San Luis Home Owners Association (with reservations), West Galveston Island Property Owner's Association (with reservations), Galveston County Envision Task Force, Centex Destination Properties, and San Luis Development L.P., expressed general support of the City's Plan and designated pedestrian beaches. The GLO generally agrees with these comments with conditions. The Plan contains a diversity of on-beach parking, off-beach parking and vehicular access throughout the jurisdiction of the City. However, the GLO disagrees that the Plan is fully adequate in all respects, and in response to public comment GLO has changed the proposed rule to retain the conditional certification status for the City's Plan for East Beach.

STATUTORY AUTHORITY

These amendments are adopted under Texas Natural Resources Code, Chapter 61, §61.011(d), which authorizes the GLO 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 the GLO to certify the consistency of vehicular plans and fees by adoption into the beach/dune rules.

Texas Natural Resources Code §§61.011, 61.015, 61.022, and 61.070 are affected by the amendments.

§15.36.Certification Status of City of Galveston Dune Protection and Beach Access Plan.

(a) The City of Galveston (City) has submitted to the General Land Office a dune protection and beach access plan which was adopted on August 12, 1993 and amended on February 9, 1995, June 19, 1997, February 14, 2002, March 13, 2003, January 29, 2004, and February 26, 2004. The City's plan is certified as consistent with state law with respect to the January 26, 2004, amendments and the February 26, 2004, amendments to change the boundaries of Seawall Urban Beach Park, and to establish or increase beach user fees to be collected at the Seawall Beach Urban Park, Stewart Beach, R.A. Apffel Park, Dellanera Park, and east and west areas of Galveston Island. The City's plan is certified as consistent with state law with respect to the geographic area west of the eastern boundary of Stewart Beach, and east of the western boundary of R.A. Apffel Park. The City's plan is conditionally certified as consistent with state law with respect to the geographic area between Access Points 1 and 2 (East Beach, extending from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park). The City must satisfy the conditions set forth below in accordance with the reasoning outlined in the final adoption notice for the amendment approving this conditional certification. The conditional certification shall remain in effect until the General Land Office officially withdraws the conditional certification.

(b) The General Land Office certifies as consistent with state law the following variances 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) in the City of Galveston's plan. The plan:

(1) 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;

(2) 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;

(3) assesses a "Fibercrete Maintenance Fee" of $200.00 to be used to pay for the cleanup of fibercrete from the public beaches, should the need arise; and

(4) allows the use of reinforced concrete in that area landward of 200 feet from the line of vegetation.

(c) For purposes of this section, the phrase "completion of substantial physical improvements" shall mean the completion of all of the following criteria for development, as determined by the City's Director of the Department of Planning and Community Development:

(1) The filing of a final plat;

(2) Installation of public and private infrastructure;

(3) Installation of the associated beach access point parking, signage, and walkover consistent with §15.7(h)(1) of this title (relating to Local Government Management of the Public Beach); and

(4) The issuance of a building permit for a private residence or public building, excluding a sales office or accessory structure.

(d) In order to continue to restrict vehicular access to the public beach from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park, the City must amend its plan to comply with the presumptive criteria for parking spaces on or adjacent to the beach, spacing between beach ingress/egress ways, and conspicuous signage set forth in §15.7(h)(1) of this title within 180 days of the effective date of this amendment. The General Land Office will condition its affirmative finding that the Plan as amended preserves and enhances the public's right to use and access the public beach upon the inclusion in the amended Plan of the specific measures set forth in paragraph (1) of this subsection.

(1) With respect to the area between Access Points 1 through 2, the Plan must provide for the following:

(A) Two existing pedestrian ingress/egress ways between the Galvestonian and the west entrance to R.A. Apffel Park marked with conspicuous signage as public access;

(B) A pedestrian ingress/egress way with appropriate conspicuous signage must be provided between the Islander East and Galvestonian;

(D) Interim off-beach parking on or adjacent to East Beach Road that meets the presumptive criterion for parking spaces on or adjacent to the beach set forth in §15.7(h)(1)(A) of this title of one parking space for each 15 linear feet of beach for the area from the eastern boundary of Stewart Beach Park to the ingress/egress way at R.A. Apffel Park Road, with at least one parking lot located between the Islander East and the Galvestonian, and at least one other parking lot located to the east of the Galvestonian in proximity to the existing pedestrian ingress/egress ways;

(E) A parking lot at the eastern end of Stewart Beach located immediately adjacent to the "special use" area with a sufficient number of free parking spaces to satisfy the requirements of state law; and

(2) The City must open the beach from the eastern boundary of Stewart Beach to the western boundary of R.A. Apffel Park to vehicular traffic if it fails to amend the Plan within 180 days and take the specific measures set forth in paragraph (1) of this subsection within 270 days of the effective date of this amendment.

(e) The restriction of vehicular access to any portion of the public beach from the eastern boundary of the Playa San Luis subdivision to San Luis Pass is permitted only under the following circumstances:

(1) the completion of substantial physical improvements at the ingress/egress way adjacent to that portion of the public beach restricted to vehicular traffic including:

(A) dedication of pedestrian pathways for public use as identified in the City's plan;

(B) parking that meets the presumptive criterion for parking spaces on or adjacent to the beach set forth in §15.7(h)(1)(A) of this title of one parking space for each 15 linear feet of beach; and

(2) notwithstanding the completion of substantial physical improvements at AP 38, 39 or 40, vehicular access to San Luis Pass via AP 36 (Salt Cedar Avenue) must be permitted until the road surface at the vehicular access at AP 41 is improved to provide reliable, regularly maintained vehicular access to the beach;

(3) ingress/egress ways to the public beach for Access Points 38 through 41 inclusive are located so that the distance between such ingress/egress ways represents no more than one-quarter mile variance from the one-half mile presumptive criterion of §15.7(h)(1)(B) of this title; and

(4) restriction of vehicular access to a portion, rather than all, of the beach from the eastern boundary of the Playa San Luis subdivision to San Luis Pass inclusive can occur only if such restriction does not create a section of beach open to vehicular access between two or more areas that are inaccessible to vehicular traffic.

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 June 30, 2004.

TRD-200404329

Larry L. Laine

Chief Clerk/Deputy Land Commissioner

General Land Office

Effective date: July 20, 2004

Proposal publication date: March 19, 2004

For further information, please call: (512) 305-8598

Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

Chapter 51. EXECUTIVE

Subchapter K. DISCLOSURE OF CUSTOMER INFORMATION

31 TAC §§51.300 - 51.306

The Texas Parks and Wildlife Commission adopts new §§51.300 - 51.306, concerning the disclosure of customer information. Section 51.300 and §51.304 are adopted with changes to the proposed text as published in the March 5, 2004, issue of the Texas Register (29 TexReg 2204). Sections 51.301 - 51.303, 51.305, and 51.306 are adopted without change and will not be republished.

The change to §51.300(6) and (8) removes the word 'is' for consistency with the other provisions of that section. The change to §51.304(a)(2) adds the word 'information,' which was inadvertently omitted from the published proposal.

The new sections are necessary to implement Texas Parks and Wildlife Code, §11.030(c), which requires the Texas Parks and Wildlife Commission to adopt policies by rule relating to: (1) the release of customer information; (2) the use of the customer information by the department; and (3) the sale of a mailing list consisting of the names and addresses of persons who purchase customer products, licenses, or services" from the department. Section 11.030(d) requires that the policies adopted by the commission include "a method for a person by request to exclude information about the person from a mailing list sold by the department." Section 11.030 was previously implemented as 31 TAC §53.35, which has been repealed.

Pursuant to Parks and Wildlife Code, §11.030(b), the department's customer information is not subject to the provisions of the Texas Public Information Act (PIA), Texas Government Code, Chapter 552. The Office of the Texas Attorney General has confirmed in several informal letter rulings that department customer information is not subject to the PIA. See, Texas Attorney General OR2003-2513 (2003); OR2002-6599 (2002); OR2002-5890 (2002); OR2002-0479 (2002).

The proposed new rules also address "personal information," which is defined as a social security number, drivers' license number, bank account number, credit card number, or charge card number of a department customer. Because of the potential for identity theft and misuse, under the new rules, except in certain specified situations, the department will not disclose a customer's personal information. Also, maintaining the confidentiality of such information is consistent with other law regarding such information. See, e.g., Texas Government Code §§552.024(a), 552.117, 552.136; 42 U.S.C. §405(c)(2)(C)(viii) (I); Texas Family Code §231.006 and §231.302(e); Texas Occupations Code §56.001; Texas Family Code §231.302(e).

Under the new rules, except in certain specified situations, recreational customer information and confidential customer information will not be disclosed by the department. However, if a requestor provides the name or other identifying information for a recreational customer, the department will confirm certain information about the customer. Alternatively, except in certain specified situations, magazine customer information and commercial customer information will be disclosed by the department. Although boat customer information is defined by the new rules, the handling of such information is dictated by specific statutory and regulatory provisions regarding that boat customer information. Also, under the new rules, information about a corporation, partnership or other commercial entity will be disclosed unless otherwise prohibited by law.

Included within the definition of recreational customer information in the new rules is information regarding purchasers of recreational hunting and fishing licenses. The department's automated system for selling hunting and fishing licenses relies on driver's license data obtained from the Texas Department of Public Safety (DPS). Under federal law and the Texas Transportation Code, disclosure of personal driver information is prohibited, except for specified purposes. Texas Transportation Code §730.004; 18 U.S.C. §2721(b). Personal driver information is "information that identifies a person, including an individual's photograph or computerized image, social security number, driver identification number, name, address. Texas Transportation Code §730.003(6); see, also, 18 U.S.C. §2725(3), (4).

Because the department relies on the DPS driver's license database for the department's hunting and fishing license system, most information regarding purchasers of recreational hunting and fishing licenses is confidential. The new rules merely confirm the confidentiality of that information. As authorized by federal law and the Texas Transportation Code, the new rules also include a mechanism for a recreational customer to consent to a specific disclosure of his or her customer information or personal information. It should be noted that under the new rules, information regarding purchasers of recreational hunting and fishing licenses would be exempt from disclosure as recreation customer information and as confidential customer information.

Also, under the new rules, information regarding other types of recreational customers is included in the definition of recreational customer information. Therefore, the following types of customer information would not be disclosed, except in specified situations: information about a visitor to a state park and other department facilities; information about a person who purchases a state parks annual pass or makes a reservation at a park or other department facility; and, a person who purchases items or products from the department.

The new rules also address information regarding subscribers to the Texas Parks and Wildlife Magazine. Since 1942, the department (or the department's predecessor) has published a magazine. A common practice within the magazine industry is to trade, sell or rent subscriber lists to other magazines or publications. Therefore, the new rules authorize the sale, trade or rent of subscriber mailing lists. However, the new rules also provide a mechanism by which a magazine subscriber can elect to have his or her name and information removed from a list that is otherwise disclosed.

The new rules recognize that there are instances in which the department may disclose information that is not otherwise subject to disclosure. As a result, the rules authorize the disclosure of such information in specified situations, including disclosure consented to by the customer, disclosure to another governmental entity that agrees to maintain the confidentiality of the information, disclosure pursuant to a subpoena, disclosure that does not identify the customer, and disclosure otherwise required by law.

The new rules also state that the department's executive director will establish the amount to be charged by the department for providing information under the rule. The executive director is also charged with establishing procedures for processing requests for information under the rules.

Because certain landowner information and information about boat customers are addressed separately in the Texas Parks and Wildlife Code, the rules expressly exclude such information from the application of the rules. Also, the new rules provide that the department will only collect and use information as required to carry out department functions.

The new rules will function by setting forth the department's policies relating to the release of customer information; the use of the customer information by the department; and the sale of information about persons who purchase customer products, licenses, or services from the department.

The department received no comments regarding adoption of the proposed sections.

The new sections are adopted under the authority of Texas Parks and Wildlife Code, §11.030, which requires the commission to adopt policies by rule relating to the release of the customer information; the use of the customer information by the department; and the sale of a mailing list consisting of the names and addresses of persons who purchase customer products, licenses, or services.

§51.300.Definitions.

The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise.

(1) Boat customer information--customer information regarding the holder of or applicant for a marine dealer license or for a title or registration issued by the department for a vessel or motor.

(2) Commercial customer information--customer information regarding an individual who is the holder of a commercial fishing, hunting or other commercial license issued by the department. Commercial customer information does not include boat customer information.

(3) Confidential customer information--customer information made confidential by law, including, but not limited to, information made confidential by the Motor Vehicle Records Disclosure Act, Chapter 730, Texas Transportation Code.

(4) Customer information--the name, address and telephone number of a department customer. For purposes of this subchapter, customer information does not include personal information.

(5) Department customer--a person who purchases a product, license, permit or service from the department. For purposes of this subchapter, a department customer does not include a corporation, partnership or other commercial enterprise.

(6) Magazine customer information--customer information about a person who subscribes to the Texas Parks and Wildlife Magazine.

(7) Mailing list--a list containing the name and address for more than one department customer.

(8) Personal information--the social security, drivers' license, bank account, credit card, or charge card number of a department customer.

(9) Recreational customer information--customer information about a person who purchases a recreational product, license, permit or service from the department, including but not limited to customer information about the following:

(A) the holder of a recreational hunting, fishing, or combination license issued by department;

(B) a visitor to a state park or other department facility, such as a wildlife management area, the Texas Freshwater Fisheries Center, or Sea Center Texas;

(C) a person who has purchased a state parks annual pass or made a reservation at a park or other department facility; or

(D) a person who has purchased an item or product from the department.

(10) Requestor--a person or entity seeking information from the department about a department customer.

§51.304.Exceptions.

(a) Unless otherwise prohibited by law, the department may disclose the recreational customer, personal customer information or confidential customer information as follows:

(1) Statistical data and compilations of recreational customer information may be disclosed so long as the information does not reveal a specific department customer or a department customer's address or telephone number;

(2) Recreational customer information, personal information or confidential customer information may be disclosed to another governmental body that agrees to maintain the confidentiality of the information.

(3) Recreational customer information, personal information or confidential customer information may be disclosed if the customer that is the subject of the information consents to a specific disclosure in writing.

(4) Customer information or personal information may be disclosed pursuant to a lawfully issued subpoena.

(b) If a requestor provides a recreational customer's name or other identifying information, the department may verify information about a recreational customer as specified in this subsection; however, the department may require that the requestor complete and submit a separate written form for each recreational customer about which the department is requested to verify information.

(1) The department may verify whether a recreational customer holds a specified license or permit.

(2) The department may verify whether a recreational customer was a visitor to a state park or other department facility.

(3) The department may verify whether a recreational customer purchased a state parks annual pass or made a reservation at a park or other department facility.

(4) The department may verify whether a recreational customer purchased an item or product from the department.

(c) Information that is rented under this subchapter may be used by the requestor no more than one time. The department will take appropriate steps to verify that rented information is used no more than one time.

(d) A commercial customer or magazine customer may elect to exclude his or her customer information from disclosure. In the event that a commercial customer or magazine customer elects to exclude his or her customer information from disclosure, his or her customer information will be treated as confidential information under this subchapter.

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 June 29, 2004.

TRD-200404298

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: July 19, 2004

Proposal publication date: March 5, 2004

For further information, please call: (512) 389-4775

Subchapter L. VENDOR DISPUTE RESOLUTION

31 TAC §51.350

The Texas Parks and Wildlife Commission adopts new §51.350, concerning the department's procedures for handling vendor disputes, with changes to the proposed text as published in the March 5, 2004, issue of the Texas Register (29 TexReg 2207). The change involves a reference made in subsection (a) to the 'Director of Purchasing, Payments, and Properties.' That reference is being changed to 'Director of Purchasing, Contracting, and Distribution Services' because the job title in the current rule no longer exists.

The new section is substantively identical to current 31 TAC §53.70, which is being repealed as part of a reorganization of Chapter 53. Therefore, the ultimate effect is that of an administrative transfer of the rule from one chapter to another chapter.

The new section will function by providing an opportunity for vendors to administratively process protests of department procedures relating to purchasing issues, as required by Government Code, §2155.076, which stipulates that each state agency by rule shall develop and adopt protest procedures for resolving vendor protests relating to purchasing issues, and that the rules must include standards for maintaining documentation about the purchasing process to be used in the event of a protest.

The department received no comments concerning adoption of the proposed new section.

The new section is adopted under Government Code, §2155.076, which requires the department as a state agency to adopt rules for resolving vendor protests relating to purchasing issues.

§51.350.Vendor Protest Procedures.

(a) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract may formally protest to the Director of Purchasing, Contracting, and Distribution Services. Such protests must be in writing and received in the director's office within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested. Copies of the protest must be mailed or delivered by the protesting party to the department and other interested parties. For the purpose of this section "other interested persons" means at least all vendors who have submitted bids or proposals for the contract involved.

(b) If the vendor wants the solicitation or the award process to be terminated, he must make that request in his protest and state the reasons for such termination of the process. The director will review such request and, after consultation with the issuing division and the appropriate manager, make a written determination within three business days of receipt of the request to terminate from the vendor.

(1) a specific identification of the statutory or regulatory provision(s) the action complained of is alleged to have violated;

(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified above;

(3) a precise statement of the relevant facts;

(4) an identification of the issue or issues to be resolved;

(5) argument and authorities in support of the protest; and

(6) a statement that copies of the protest have been mailed or delivered to the identifiable interested parties.

(d) The director shall have the authority, absent a proper appeal to the executive director of the department, to settle and resolve the dispute concerning the solicitation or award of a contract. The director may solicit written responses to the protest from other interested parties.

(e) If the protest is not resolved by mutual agreement, the director will issue a written determination on the protest:

(1) if the director determines that no violation of rules or statutes has occurred he shall so inform the protesting party, and the other interested parties by letter which sets forth the reasons for the determination; or

(2) if the director determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, he will so inform the protesting party and the other interested parties by letter which sets forth the reasons for the determination, which may include ordering the contract void.

(f) The director's determination on a protest may be appealed by an interested party to the executive director of the department. An appeal of the director's determination must be in writing and must be received in the executive director's office no later than ten working days after the date of the director's determination. The appeal shall be limited to review of the director's determination. Copies of the appeal must be mailed or delivered to other interested parties within ten working days after the date of the director's decision and must contain a certification that such copies have been provided as directed in this section.

(g) The appropriate lawyer for the agency must review the protest, the director's determination and the appeal and prepare a written opinion with recommendations to the executive director.

(h) A decision issued by the commission in open meeting, or in writing by the executive director, shall be the final administrative action of the department.

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 June 29, 2004.

TRD-200404299

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: July 19, 2004

Proposal publication date: March 5, 2004

For further information, please call: (512) 389-4775

Subchapter M. INVESTMENT OF LIFETIME LICENSE ENDOWMENT

31 TAC §51.400

The Texas Parks and Wildlife Department adopts new §51.400, concerning Investment of the Lifetime License Endowment Fund, without changes to the proposed text as published in the March 5, 2004, issue of the Texas Register (29 TexReg 2208).

The new section is textually identical to current 31 TAC §53.9, which is being repealed as part of a reorganization of the department's rules. Therefore, the ultimate effect is that of an administrative transfer of the rule from one chapter to another chapter.

The new section will function by authorizing the Executive Director to invest the Lifetime License Endowment Fund in accordance with the investment policy approved by the Parks and Wildlife Commission.

The department received no comments concerning adoption of the new section.

The new section is adopted under the authority of Parks and Wildlife Code, §11.065, which requires the commission to adopt rules for the investment of the lifetime license endowment account.

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 June 29, 2004.

TRD-200404300

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: July 19, 2004

Proposal publication date: March 5, 2004

For further information, please call: (512) 389-4775

Chapter 65. WILDLIFE

Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

3. SEASONS AND BAG LIMITS--FISHING PROVISIONS

31 TAC §65.79

The Texas Parks and Wildlife Commission adopts new §65.79, concerning gear restrictions for minnow traps, without changes to the proposed text as published in the April 23, 2004, issue of the Texas Register (29 TexReg 3939).

The new section is in response to public comment received by the Texas Parks and Wildlife Commission concerning identification of trap-type fishing mechanisms generally. The commenters requested that gear identification be required on all trap-type devices that have the potential to continue functioning if lost or abandoned. The department agreed with the comments and determined that the rule was necessary to prevent the waste of aquatic resources as required by the Wildlife Conservation Act of 1983 (Parks and Wildlife Code, Chapter 61).

The new section imposes restrictions on minnow traps similar to those currently in effect for crab traps and perch traps, namely that each trap be equipped with a gear tag bearing the name of the person who set out the trap and the date the trap was set out. Research has shown that abandoned or lost traps can continue to function for years, leading to waste and loss of marine organisms. By requiring the gear tag, the department can consider the trap to have been abandoned if the date on the gear tag indicates the trap has been in the water longer than 30 days. At that point the trap can be removed by department personnel as an abandoned trap. The contents of the gear tag are as defined in 31 TAC §65.3(27), which requires the tag be as durable as the device to which it is attached and contain the name and address of the person using the device and the date the device was set out.

The new section will function by requiring minnow traps to be equipped with a gear tag bearing the name of the person who set out the trap and the date the trap was set out, which will allow the department to identify and remove abandoned traps and thereby reduce unnecessary mortality of marine organisms.

Eleven commenters opposed adoption of the proposed section without specifying a reason for opposition.

One commenter opposed adoption of the section by stating that minnow traps are not set overnight and are checked every few minutes. The department disagrees with the comment and responds that the section as adopted is intended to allow the removal of the minnow traps that are lost or abandoned. No changes were made as a result of the comment.

One commenter opposed adoption by stating that the minnow trap tag would cause extra work for game wardens, that persons who don't tag trotlines won't tag minnow traps, and that most traps will rust or be destroyed in less than a year anyway. The department disagrees with the comment and responds that, respectively, department game wardens routinely inspect taking devices as part of ordinary duties and the department doesn't believe that the new section will cause an additional workload; persons who do not choose to follow regulations can be cited, and upon conviction, fined; and traps that continue to function after being lost or abandoned continue to cause mortality, which is why the department seeks a method to identify lost or abandoned traps as quickly as possible so that they can be removed. No changes were made as a result of the comment.

One commenter opposes adoption by stating that the new section was an example of over-regulation, since minnow traps are rarely used. The department disagrees and responds that the regulation is necessary to reduce unnecessary mortalities of marine organisms caught by lost or abandoned traps, which has been proven to occur. No changes were made as a result of the comment.

One commenter opposed adoption by stating that the time period for validity of the gear tag should be 90 days rather than 30. The department disagrees with the comment and responds that a person should be able to check their traps at least once every 30 days. No changes were made as a result of the comment.

One commenter opposed adoption by stating that the opening on a minnow trap was too small to trap game fish. The department disagrees with the comment and responds that although minnows and other small organisms are not game fish, they are nonetheless important components of a healthy ecosystem. Protecting them from waste is therefore no less important than protecting game species. No changes were made as a result of the comment.

The department received 63 comments supporting adoption of the proposed section.

Sportsmen Conservationists of Texas supported adoption of the proposed section.

The new section is adopted under the authority of Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the commission with authority to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life.

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 June 29, 2004.

TRD-200404301

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: July 19, 2004

Proposal publication date: April 23, 2004

For further information, please call: (512) 389-4775

Subchapter K. RAPTOR PROCLAMATION

31 TAC §§65.263 - 65.265, 65.270

The Texas Parks and Wildlife Commission adopts amendments to §§65.263 - 65.265 and §65.270, concerning the Raptor Proclamation. Section 65.270, concerning Marking, is adopted with changes to the proposed text as published in the April 23, 2004, issue of the Texas Register (29 TexReg 3940). Sections 65.263 - 65.265 are adopted without change and will not be republished.

The change to §65.270 clarifies that the two-day time period stipulated for notifying the department of possession of an unbanded gyrfalcon, Harris hawk, or peregrine falcon consists of two business days.

The Texas Legislature in 1975 authorized the Parks and Wildlife Commission to regulate the taking, capture, possession, propagation, transportation, export, import, and sale of raptors, time and area from which raptors may be taken or captured, and species that may be taken or captured; to provide standards for possessing and housing raptors held under a falconry permit; to prescribe annual reporting requirements and procedures; to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit; and to require and regulate the identification of raptors held by permit holders. The agency's regulations governing falconers, falconry, and people who possess raptors historically have been formulated following close consultation with the department's Falconry Advisory Board (FAB), which is composed of Texas residents who are permitted falconers. The department relies on the FAB for valuable advice in crafting the standards, requirements, and restrictions for various classes of falconry permits. The relationship between the department and the FAB allows for regulations that protect and promote the sport of falconry without creating onerous restrictions that might serve as an impediment to enjoyment of the resource or the sport. The adopted amendments are recommendations from the FAB.

The amendment to §65.263(b)(1), concerning General Provisions, adds the word 'display' in paragraph (1) to clarify that public display of raptors is limited to educational display and adds language to subsection (b)(2) to allow apprentice falconry permit holders to perform public display activities with raptors (provided they are supervised by a general or master permit holder). The amendment is necessary to prevent misunderstandings by specifically restricting the display of raptors to educational instances only and to create a mechanism for persons displaying raptors at fairs, conferences, and other events to be assisted by apprentice permit holders.

The amendment to §65.264, concerning Applications and Permits, relocates the testing requirement for apprentice falconers to another section. The amendment is necessary to locate the requirement in a section where it more logically belongs.

The amendment to §65.265, concerning Permit Classes: Restrictions, restructures the section to consolidate all provisions related to qualifying for and maintaining a falconry permit in one place, making for easier reference. The amendment also creates qualifications for various types and classes of permits. For apprentice permittees, the FAB recommends a minimum age of 14 for apprentice falconry permittees because it is at about that age that a person generally begins to develop the maturity necessary to apprehend the principles of falconry and to accept the responsibility necessary to care for and train raptors. The FAB further recommends that apprentices be sponsored by a general or master class permittee, because falconry is an exacting sport that cannot be learned or practiced correctly without expert guidance and training from someone very experienced in the sport. To this end, the amendment also stipulates that apprentices trap their own birds, which is intended to be part of a conscientious program of training apprentices in the rudiments of falconry, during which time they learn about the biology and behavior of raptors. Additionally the rule requires apprentices to notify the FAB and the department within 30 days of a sponsorship termination, which is necessary to ensure that apprentices do not attempt to practice falconry without being supervised. The amendment also stipulates that an apprentice permittee may not replace a raptor more frequently than once per year, in order to discourage the irresponsible use of wildlife resources by preventing the frequent replacement of birds by apprentices who for whatever reasons cannot maintain effective control of a bird in their possession. The amendment also prohibits apprentice permittees from taking eyas raptors. An eyas bird is a raptor that is still in the nest and has not fledged. At that age, the bird in untrained hands is in danger of being imprinted, becoming unnaturally attached to a human being as a surrogate parent or social equal. Such birds can be dangerous to their handlers, and it is inappropriate to release imprinted birds to the wild, because they have not been socialized to interact with other birds or fend for themselves. Experienced falconers are able to take eyas birds and rear them in such a fashion that they do not become imprinted.

The amendment also establishes qualifications and restrictions for general class permittees, specifying that they be at least 18 years of age, have two years of experience in falconry at the apprentice level (having flown a bird for at least four months in each year, as certified by a sponsor), that they possess no more than two raptors at any time, that they not replace raptors more frequently than twice per year, and that they notify the department within five days of sponsorship termination. The requirement of documented activity (as certified by the sponsor) is recommended by the FAB to prevent acquisition of a general class permit simply on the basis of elapsed time, without having demonstrated sufficient commitment to the sport. Therefore, the FAB's recommendations reflect a progressive, incremental approach that gradually increases permit privileges based on supervised performance. Based on the skills acquired at the apprentice level, the general class permittee is allowed to keep an additional bird (which necessitates a replacement privilege of one additional bird per year). The notification requirement is to allow the department to track apprentice level permittees and ensure that apprentices are supervised. At the master class level, the permittee must have at least five years of experience as a general class permittee, is allowed to keep up to three birds in possession, may not replace more than three birds per year, and must notify the department within five days of sponsorship termination. Finally, the amendment requires an applicant for a raptor propagator permit to have five years of experience in falconry and be a general or master class permittee. Under the current rule, an applicant must have at least five years of experience at the apprentice level. The FAB recommends that no person be engaged in raptor propagation who is not qualified to practice falconry alone. In sum, the amendment is necessary to restructure the section to consolidate in one section all provisions related to qualifying for and maintaining a falconry permit in one place, thus making for easier reference, and to prescribe qualifications for various types and classes of permits as recommended by the FAB.

The amendment to §65.270, concerning Marking, requires persons acquiring an umarked gyrfalcon, Harris hawk, or peregrine falcon to notify the department within two business days of acquiring the bird. The current rule as written is impossible to comply with for persons seeking to possess an umarked bird, since the marker supplied by the department cannot be issued unless the bird is in possession; however, if the bird is in possession without being marked, an offense has been committed. By applying the section's provisions to unmarked birds and providing a two-day window for acquiring the band, the department seeks to implement a regulation that is easier to comply with and understand. The amendment is necessary to provide a more flexible method for permittees to acquire raptors without violating the regulations.

The amendment to §65.263, concerning General Provisions, will function by allowing the public display of raptors in educational settings, and by allowing apprentice falconry permit holders to perform public display activities provided they are supervised by a general or master permit holder.

The amendment to §65.264, concerning Applications and Permits, will function by reorganizing the contents of the section to increase user-friendliness.

The amendment to §65.265, concerning Permit Classes: Restrictions, will function by prescribing the qualifications and restrictions for all classes of permittees.

The amendment to §65.270, concerning Marking, will function by allowing qualified permittees to acquire an umarked gyrfalcon, Harris hawk, or peregrine falcon, provided the bird is marked with a department-supplied band within two business days of acquisition.

The department received four comments opposing adoption of the proposed amendment to allow apprentice permittees to assist master and general permittees in educational display activities. Three of the commenters stated that only experienced falconers should be allowed to display, and one commenter stated that apprentices should have at least four months experience before being allowed to participate in supervised display activities. The department disagrees with the comment and responds that since apprentice falconers already must be supervised while learning to practice falconry (which by necessity includes the handling of raptors), they should be allowed to handle birds in a display environment, provided they are supervised by a general or master permittee. No changes were made as a result of the comments. The department received 31 comments supporting adoption of the proposed amendment.

The department received four comments opposing various provisions of the amendment establishing the qualifications for apprentice permittees. One commenter stated that no person should be allowed to take eyas raptors. The department disagrees with the comment and responds that the danger in taking eyas raptors is that careless or unknowledgeable handling will result in the bird becoming imprinted, and therefore unable to survive in the wild. The same is true of raising captive-bred birds. A general or master permittee is presumed by the department to have developed the knowledge, skills, and ability to successfully rear an eyas bird without imprinting it. No changes were made as a result of the comment. One commenter stated that apprentices should be allowed to take branchers. The department disagrees with the comment and responds that the point of requiring each apprentice to trap a mature raptor is to equip the apprentice with one of the skills necessary to recover a bird that has flown off, and to enable them to successfully capture birds once they have attained a status allowing them to work on their own. The trapping of eyas birds and branchers (a bird that is strong enough to leave the nest, but still unable to fly) is not sufficient to gain these skills. No changes were made as a result of the comment. One commenter stated that apprentices should have to band their birds. The department disagrees and responds that there is no reason to identify apprentice birds other than the instance in which an apprentice bird has flown off, in which case the bird will still be wearing jesses that the apprentice permittee ought to be able to recognize. No changes were made as a result of the comment. The department received 32 comments supporting adoption of the proposed amendment.

The department received four comments opposing various provisions of the proposed amendment establishing the qualifications for general class permittees. One commenter stated that the number of birds a permittee is allowed to replace should be based on the circumstances for replacement. The department disagrees and responds that conditioning the number of replacement birds on specific circumstances would create a number of problems. First, the department would have to develop a list of appropriate circumstances, which would be lengthy, subjective, and complicated, since the number of situations leading to the replacement of a bird is open-ended. Second, the department would have to develop some kind of system for tracking and, in some cases, verifying the circumstances for replacement. Lastly, the initiation of conditioned replacements would create the opportunity for lazy or incompetent persons to lose and replace large numbers of birds per year, a situation which the department and the FAB are eager to avoid. By placing a limit on replacement opportunities for each class of permittee, the department intends to encourage permittees to do their utmost to recover lost birds. No changes were made as a result of the comments. Two commenters stated that the calculation of flight time for the purposes of qualifying for a general permit should not be restricted to flight time spent hunting. The department agrees with the comment and responds that the amendment as proposed made no such stipulation. No changes were made as a result of the comment. The department received 30 comments supporting adoption of the proposed amendment.

The department received four comments opposing adoption of the provisions of the proposed amendment establishing qualifications for master permittees. One commenter stated that the number of birds a permittee is allowed to replace should be based on the circumstances for replacement. The department disagrees with the commenter and has previously responded to it elsewhere in this preamble. One commenter stated that the three-bird possession limit for master permittee was too high. The department disagrees with the comment and responds that master permittees, by virtue of their many years of experience, are presumed to be able keep and fly three birds. No changes were made as a result of the comments. The department received 29 comments supporting adoption of the proposed amendment.

The department received two comments opposed to adoption of the proposed amendment establishing qualifications for raptor propagators. The commenter stated that certain professional classes, such as avian veterinarians, ornithologists, biologists, etc.) should be allowed to propagate raptors without having to meet the falconry experience criteria. The department disagrees with the comment and responds that the raptor propagation permit is a permit intended to be used by falconers to produce birds for falconry purposes. There are other, more appropriate types of permits for other uses, such as research or endangered species propagation. No changes were made as a result of the comment. One commenter stated that general or master class permittees should be able to qualify as a propagator under special circumstances. The department disagrees with the commenter and responds that accounting for every special circumstance that might arise would be difficult if not impossible, and that the department feels that the FAB recommendation of five years' experience in falconry and possession of a general or master permit is a good benchmark for being able to assume that an individual has acquired sufficient knowledge and experience in the biology, care, and handling of raptors to supervise a breeding program. No changes were made as a result of the comment. The department received 31 comments in support of the proposed amendment.

The department received five comments opposing adoption of the provision requiring gyrfalcons, peregrine falcons, and Harris hawks to be banded within two days of acquisition. One commenter stated that there was no reason to band Harris hawks. The department disagrees and responds that by federal law Harris hawks must be banded. No changes were made as a result of the comment. Four commenters stated that the department should allow more time for persons to get birds banded. The department agrees with the comment and has lengthened the time period from two days to two business days. The department received 27 comments supporting adoption of the amendment as proposed.

The department received 15 comments supporting the adoption of the amendments as proposed.

The Texas Hawking Association and the Falconry Advisory Board supported adoption of the amendments as proposed.

The amendments are adopted under the authority of Parks and Wildlife Code, §49.014, which authorizes the department to prescribe rules for the taking, capture, possession, propagation, transportation, export, import, and sale of raptors, time and area from which raptors may be taken or captured, and species that may be taken or captured; to provide standards for possessing and housing raptors held under a permit; to prescribe annual reporting requirements and procedures; to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit; and to require and regulate the identification of raptors held by permit holders.

§65.270.Marking.

(a) No person may possess an unmarked gyrfalcon, peregrine falcon, or Harris hawk under a permit issued pursuant to this subchapter unless the person has notified the department within two business days of acquisition. Upon notification, the department shall issue a numbered nonreusable marker supplied by the U.S. Fish and Wildlife Service, which must be attached to the raptor immediately upon receipt.

(b) It is unlawful for any person to alter, counterfeit, or deface a marker, except that a permit holder may remove the rear tab on markers and smooth an imperfect surface, provided the integrity of the marker and numbering are not affected.

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 June 29, 2004.

TRD-200404302

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: July 19, 2004

Proposal publication date: April 23, 2004

For further information, please call: (512) 389-4775