31 TAC §15.30
The Texas General Land Office (GLO) proposes an amendment
to §15.30, Certification Status of the Town of South Padre Island Dune
Protection and Beach Access Plan. The amendment is proposed to certify as
consistent with state law an amendment to the Dune Protection, Beach Renourishment,
and Beach Access Plan (Plan) of the Town of South Padre Island (the Town),
adopted as Ordinance No. 05-07 on May 4, 2005.
Pursuant to the Open Beaches Act (Texas Natural Resources Code, Chapter
61), the Dune Protection Act (Texas Natural Resources Code, Chapter 63), and
the Beach/Dune Rules (31 TAC §§15.1 - 15.10), a local government
with jurisdiction over gulf beaches must submit its beach management plan
and amendments to the plan to the GLO for certification. The GLO is required
to review such plans and certify by rule those plans that are consistent with
the Open Beaches Act, the Dune Protection Act, and the Beach/Dune Rules.
The Town's plan was adopted on October 5, 1994. The GLO subsequently certified
amendments to the Town's plan adopted by the Board of Aldermen on May 7, 2003,
as consistent with state law. The Town seeks approval of amendments to its
Plan to modify the definition and location of the Historic Building Line (HBL)
in its Plan in one specific area. The HBL is a line established by the Texas
Attorney General that indicated the buildable depth line for construction
of buildings or structures on or to the landward side of the line. The HBL
was located on a map (drawn by Chas R. Hail Associates, Inc., Consulting Engineers,
dated March 1981) provided by the Texas Attorney General and is on file with
the Public Works Department of the Town of South Padre Island. The line was
intended to retain a minimum of two hundred feet of open beach above the mean
low tide line according to then available data.
The modification to the HBL is limited to its location on four lots identified
as Lots 1, 2, 3, and 4 of Block 156, Padre Beach Subdivision, Section X as
shown on the survey labeled and attached as Exhibit B to the Town's Plan Amendment.
The existing HBL makes a right angle turn landward immediately south of the
lots in question from an adjacent retaining wall. The site is the location
of a motel, a facility that was in place before the HBL was drawn. For reasons
unknown, the HBL was drawn directly through the structure when it was established
in 1981. The proposed adjustment to the HBL at this location will remove the
right angle and establish a line connecting the easternmost points of retaining
walls on either side of the identified lots. The Town represented in its February
9, 2005, letter requesting the modification to the HBL that by permitting
construction that eliminates the right angle, the potential for beach erosion
and dune damage caused by a vortex of wave action is reduced at the location.
The area between the existing HBL and the adjusted line is occupied by the
existing structure and dunes and dune vegetation. The Town further represented
in its February 9, 2005, letter that adjustment of the HBL at this location
will preserve a minimum of 200 feet or more of beach from the HBL to a point
above mean low tide at all times, and will not result in an encroachment on
the public beach. The GLO finds that the proposed amendments to the Town's
Plan provide an equal or better level of protection of dunes, dune vegetation,
and public access to and use of the public beach. Accordingly, the GLO proposes
to certify the amendment to the Dune Protection, Beach Renourishment, and
Beach Access Plan (Plan), adopted by the Board of Aldermen of the Town of
South Padre Island as Ordinance No. 05-07 on May 5, 2005.
Certification of the Plan shall not be considered in any manner as a waiver
of rights of the GLO concerning any failure by the Town to comply with its
certified plan and amendments thereto, the Open Beaches Act, the Dune Protection
Act, and the Beach/Dune Rules.
Mr. Sam Webb, Deputy Commissioner for the Coastal Resources Program area,
has determined that for the first five-year period that the amendment is in
effect there will be no fiscal implications for state and local government.
Mr. Webb has also determined that for each year of the first five years
the amended rule is in effect, the public benefit anticipated as a result
of enforcing the amended section will be that the approved plan provides for
preservation and enhancement of public beach use and dune protection. There
are no additional economic costs of compliance for small or large businesses
or individuals required to comply with the section as amended. The Texas General
Land Office has determined that the proposed rule change will have no local
employment impact that requires an impact statement pursuant to the Government
Code §2001.022.
The proposed amendment to certify the Town's Dune Protection and Beach
Access Plan is subject to the Texas Coastal Management Program (CMP), as provided
in 31 TAC §505.11(a)(1)(J), relating to the Actions and Rules Subject
to the Coastal Management Plan, and must be consistent with the applicable
CMP goals and policies under §501.14(k), relating to Construction in
the Beach/Dune System. The GLO has reviewed this proposed action for consistency
with the CMP goals and policies in accordance with the regulations of the
Coastal Coordination Council (Council). The proposed action is consistent
with the GLO Beach/Dune regulations that the Council has determined to be
consistent with the CMP. Consequently, the Land Office has determined that
the proposed action is consistent with the applicable CMP goals and policies.
The proposed amendment will be distributed to council members in order to
provide them an opportunity to provide comment on the consistency of the proposed
rulemaking during the comment period.
The GLO has evaluated the proposed rulemaking action in light of the regulatory
analysis requirements of Texas Government Code §2001.0225, and determined
that the action is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule" as defined in the statute.
"Major environmental rule" means a rule, the specific intent of which is to
protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. The proposed amendment
to §15.30 is not anticipated to adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state because
the proposed rulemaking implements legislative requirements in Texas Natural
Resources Code §61.011 and §61.015(b), which provide the GLO with
the authority to adopt rules to preserve and enhance the public's right to
use and have access to and from the public beaches of Texas; and Texas Natural
Resources Code §63.121 which provides the GLO with authority to adopt
rules for the protection of critical dune areas.
The GLO has evaluated the proposed rulemaking to determine whether Texas
Government Code, Chapter 2007, is applicable and a detailed takings impact
assessment required. The GLO has determined the proposed rulemaking does not
affect private real property in a manner that requires real property owners
to be compensated as provided by the Fifth and Fourteenth Amendments to the
United States Constitution or Article I, Sections 17 and 19, of the Texas
Constitution. Furthermore, the GLO has determined the proposed rule amendment
would not affect any private real property in a manner that restricts or limits
the owner's right to the property that would otherwise exist in the absence
of the rule amendment being proposed.
To comment on the proposed rulemaking or its consistency with the CMP goals
and policies, please send a written comment to Ms. Deborah Cantu, Texas Register
Liaison, Texas General Land Office, P. O. Box 12873, Austin, TX 78711, facsimile
number (512) 463-6311 or email to deborah.cantu@glo.state.tx.us. Written comments
must be received no later than thirty (30) days from the date of publication
of this proposal.
The amendment is proposed under the Texas Natural Resources Code §61.011
and §61.015(b), which provide the Texas General Land Office with the
authority to adopt rules to preserve and enhance the public's right to use
and have access to and from the public beaches and Texas Natural Resources
Code §63.121 which provides the Texas General Land Office with authority
to adopt rules for protection of critical dune areas.
Texas Natural Resources Code §§61.011, 61.015(b), and 63.121
are affected by the proposed amendment.
§15.30Certification Status of Town of South Padre Island Dune Protection and Beach Access Plan.
(a)
The Town of South Padre Island has submitted
to the General Land Office a dune protection and beach access plan which is
certified as consistent with state law. The town's plan was adopted on October
5, 1994.
(b)
The General Land Office certifies that the amendment
to the town's plan adopted by the Board of Aldermen on May 7, 2003
,
is
consistent with state law.
(c)
The General Land Office further
certifies that the amendment to the town's plan adopted by the Board of Aldermen
as Ordinance No. 05-07 on May 4, 2005, is consistent with state law.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on August 8, 2005.
TRD-200503278
Larry L. Laine
Chief Clerk
General Land Office
Earliest possible date of adoption: September 18, 2005
For further information, please call: (512) 305-8598