31 TAC §§15.5, 15.11 , 15.12
The General Land Office (GLO) adopts amendments to §15.5,
relating to Beachfront Construction Standards, §15.12, relating to Temporary
Orders Issued by the Commissioner and new §15.11, relating to Repairs
to Certain Houses Located Seaward of the Boundary of the Public Beach. Section
15.11 is adopted with changes to the proposed text as published in the June
23, 2006, issue of the
Texas Register
(31
TexReg 5155). Sections 15.5 and 15.12 are adopted without changes and will
not be republished.
New §15.11 was changed to omit subsection (d) as proposed that provided
that the GLO post a list of eligible houses on its Internet web site. The
determination of eligibility will be made on a case-by-case basis when the
certificate or permit application for repair is submitted to the GLO for review
and comment. The internet posting of a list of eligible house was determined
to be unnecessary by the GLO. The section as adopted imposes no additional
requirements on property owners than previously proposed and does not affect
any person or entity not previously affected by the proposed rule.
The amendments and new section are adopted pursuant to Texas Natural Resources
Code §61.011(d)(2), (3), and (4), which provide the GLO with the authority
to adopt rules concerning protection of the public beach easement from erosion
or reduction caused by development or other activities on adjacent land, minimum
measures needed to mitigate for adverse effect on public access, and reasonable
exercises of the police power of local governments with respect to public
beaches.
New §15.11(a) provides that local governments may issue certificates
or permits for certain houses the lie seaward of the boundary of the public
beach. New §15.11(b) provides definitions used in the section. New §15.11(c)
provides requirements for a house to be eligible for repairs under this section.
New §15.11(d) provides required determinations that a local government
must make before permitting repairs to eligible houses. New §15.11(e)
provides that a local government shall coordinate with owners of eligible
houses to remove beach debris. New section §15.11(f) provides that only
beach quality sand may be used in repairs, and the limits of sand placement.
New section §15.11(g) provides the information required for review of
repair permits and determination of eligibility by the GLO. New section §15.11(h)
provides that a local government must monitor the repair of eligible houses,
and may establish a monitoring program, the expenses of which are considered
beach-related services. New §15.11(i) provides that a house eligible
for repairs under this section may still be an encroachment on the public
beach, and an action for removal under §61.018(a) may be brought unless
the house is covered by a temporary order issued by the commissioner under §61.0185
(a "moratorium order").
An amendment to §15.5(c) provides that authorization of repairs under
new §15.11 does not violate the prohibition on construction on the public
beach or construction landward of the public beach that functionally supports
encroachments on the public beach. An amendment to §15.12(h) provides
that local governments may authorize repairs under §15.11 for a house
on the public beach easement even if that house is not subject to a moratorium
order.
The justification for adoption of the amendments to §15.5 and §15.12
and for new §15.11 is to give local governments discretion to issue certificates
and permits for repairs to houses that may be on the public beach easement
because of weather events solely to maintain habitability. Most of the houses
that currently lie seaward of the boundary of the public beach were under
a moratorium order issued by the commissioner on June 7, 2004. All of those
moratorium orders expired on June 7, 2006. The expiration of the moratorium
orders means that the moratorium houses are again subject to possible actions
for removal under §61.018(a) of the Texas Natural Resources Code. It
will also mean that, absent the adoption of this rule, those houses would
be ineligible for any legal repairs. The GLO has determined that the authorization
of the limited repairs necessary to maintain habitability in those houses
does not exacerbate the encroachment on or interference with the public beach
easement any more than the passive relocation of those houses from landward
of the public beach to seaward of its boundary by weather events. Therefore,
the adopted new rule and rule changes give local governments the discretion
to permit repairs to these houses under limited circumstances. The rule changes
continue the prohibition on repairs and construction seaward of mean high
tide, which is state-owned submerged land in all instances.
The Land Office has evaluated the adopted 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 of which the specific
intent 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
new rule and amendments are 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 adopted rulemaking implements legislative requirements
in Texas Natural Resources Code §61.011, which provides 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.
The adopted rule and rule amendments to permit certain repairs to houses
located on the public beach because of erosion or weather event 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
rulemaking action for consistency with the CMP goals and policies in accordance
with the regulations of the Coastal Coordination Council (Council). The adopted
action is consistent with the applicable CMP goals and policies.
The Land Office received no comments during the public comment period.
The new rule and amendments are adopted under the Texas Natural
Resources Code, §61.011(d)(2), (3), and (4), which provides the Land
Commissioner with the authority to adopt rules concerning protection of the
public beach easement from erosion or reduction caused by development or other
activities on adjacent land, minimum measures needed to mitigate for adverse
effects on public access, and reasonable exercise of the police power of local
governments with respect to public beaches.
Texas Natural Resources Code, §61.011 is affected by the adopted new
section and amendments.
§15.11.Repairs to Certain Houses Located Seaward of the Boundary of the Public Beach.
(a)
Purpose. The purpose of this section is to provide authority
for local governments to issue permits or certificates for repairs to certain
houses if any portion of the house is located seaward of the boundary of the
public beach.
(b)
Definitions. In addition to the definitions contained in §15.2
of this title (relating to Definitions), the following words and terms, as
used in this section, shall have the following meanings:
(1)
Beach debris--Anything that is not native to the beach
and beach/dune system, including but not limited to pilings, concrete, fibercrete,
rebar, riprap, boulders, automobile parts, rubble mounds, damaged dune walkovers,
garbage, septic systems, and other objects, that may pose a hazard to public
health and safety and/or no longer serve the purpose for which they were originally
intended.
(2)
Boundary of the public beach--The landward edge of the
public beach, as described in §15.3(b) of this title (relating to Administration).
For purposes of this section, the location of the natural line of vegetation
shall be determined by the General Land Office on a case-by-case basis. The
General Land Office may conduct a field investigation and may consult with
the Bureau of Economic Geology of the University of Texas at Austin when making
a determination under this section regarding the natural line of vegetation.
(3)
Habitable--The condition of the premises which permits
the inhabitants to live free of serious hazards to health and safety.
(4)
House--A single or multi-family structure that serves as
permanent, temporary or occasional living quarters for one or more persons
or families.
(c)
Eligible houses. To find a house eligible for a permit
or certificate to make repairs under this section, the Land Office must determine
that:
(1)
The line of vegetation establishing the boundary of the
public beach has moved as a result of erosion or a meteorological event;
(2)
The house was located landward of the natural line of vegetation
before the erosion or meteorological event occurred;
(3)
No portion of the house is located seaward of mean high
tide;
(4)
The house was not damaged more than 50 percent or destroyed
as the result of a meteorological event; and
(5)
The house does not present an imminent threat to public
health and safety.
(d)
For a house eligible under this section, a local government
may issue a certificate or permit authorizing repair of an eligible house
if the local government determines that the repair:
(1)
is solely to make the house habitable including reconnecting
the house to utilities;
(2)
does not increase the footprint of the house;
(3)
does not include the use of impervious material, including
but not limited to concrete or fibercrete, seaward of the natural line of
vegetation;
(4)
does not include the construction of an enclosed space
below the base flood elevation and seaward of the natural line of vegetation;
(5)
does not include the repair, construction, or maintenance
of an erosion response structure seaward of the natural line of vegetation;
(6)
does not include construction underneath, outside, or around
the house other than for reasonable access to or structural integrity of the
house, provided that such repair does not create an additional obstruction
to public use of and access to the beach; and
(7)
does not include construction underneath, outside or around
the house other than for reasonable access to or structural integrity of the
house, provided that such repair does not create an additional obstruction
to public use of and access to the beach.
(e)
Debris removal. Debris on the public beach creates a hazard
to public health and safety and can threaten Gulf-facing properties. A local
government shall coordinate with owners of eligible houses to remove beach
debris from the public beach as soon as possible as a condition of the issuance
of a certificate or permit under this section. All beach debris collected
from the public beach shall be removed from the beach/dune system and disposed
of in an appropriate landfill.
(f)
Sand placement. Only beach-quality sand may be placed underneath
the footprint of an eligible house and in an area up to five feet seaward
of the house, provided that the sand may not be placed seaward of mean high
tide except as part of an approved beach nourishment project. The beach-quality
sand must remain loose and unconsolidated, and cannot be placed in bags or
other formed containment. In addition, the beach-quality sand must be an acceptable
mineralogy and grain size when compared to the sediments found in the beach/dune
system. The use of clay or clayey material is not allowed.
(g)
Land Office review. A local government shall submit the
certificate or permit application for repair of an eligible house under this
section to the commissioner for review and determination of eligibility as
provided in subsection (b)(2) and (c) of this section. If the commissioner
does not object to or otherwise comment on the application within ten working
days of receipt of the application, the local government may act on the application.
Local governments shall require that all permit and certificate applicants
fully disclose in the application all items and information necessary for
the local government to make an affirmative determination regarding a permit
or certificate for repairs. Local governments may require more information,
but they shall submit to the Land Office the following information:
(1)
the name, address, phone number, and, if applicable, fax
number or electronic mail address of the applicant, and the name of the property
owner, if different from the applicant;
(2)
a complete legal description of the tract and a statement
of its size in acres or square feet including the location of the property
lines and a notation of the legal description of adjoining tracts;
(3)
the floor plan, footprint or elevation view of the house
identifying the proposed repairs;
(4)
photographs of the site which clearly show the current
conditions of the site; and
(5)
an accurate map, site plan, plat or drawing of the site
identifying:
(A)
the site by its legal description, including, where applicable,
the subdivision, block, and lot;
(B)
the location of the property lines and a notation of the
legal description of adjoining tracts, and the location of any roadways, driveways
and landscaping that currently exist on the tract;
(C)
the location of any seawalls or any other erosion response
structures on the tract and on the properties immediately adjacent to the
tract;
(D)
the location of the house and the distance between the
house and mean high tide, and the natural line of vegetation; and,
(E)
if known, the location and extent of any man-made vegetated
mounds, restored dunes, fill activities, or any other pre-existing human modifications
on the tract.
(h)
Monitoring. A local government is responsible for monitoring
the repair of an eligible house under this section. A local government may
conduct a monitoring program to study the effects of permitting repairs to
an eligible house on the public's access to and use of the public beach. Expenses
related to the monitoring program are considered beach-related services for
the purpose of this subchapter.
(i)
Effect on actions for removal. This section does not create
a property right of any kind in the littoral property owner. Houses eligible
for repairs to maintain habitability under this section may also be encroachments
on and interferences with the public beach easement. Except as provided in
an unexpired temporary order issued by the commissioner under §61.085
of the Texas Natural Resources Code, the commissioner, the attorney general,
a county attorney, district attorney, or criminal district attorney may file
suit under Texas Natural Resources Code §61.018(a) to obtain a temporary
or permanent injunction, either prohibitory or mandatory, to remove a house
from the public beach without regard to whether the house is eligible for
repairs under this section.
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 August 10, 2006.
TRD-200604154
Trace Finley
Policy Director
General Land Office
Effective date: August 30, 2006
Proposal publication date: June 23, 2006
For further information, please call: (512) 475-1859