31 TAC §§15.5, 15.11, 15.12
The General Land Office (GLO) proposes amendments to §15.5
(relating to Beachfront Construction Standards) and §15.12 (relating
to Temporary Orders Issued by the Commissioner), and a new §15.11 (relating
to Repairs to Certain Houses Located Seaward of the Boundary of the Public
Beach). 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 that the GLO will post a list of eligible houses
on its Internet web site as soon as practicable following a survey determining
the natural line of vegetation. New §15.11(e) provides required determinations
that a local government must make before permitting repairs to eligible houses.
New §15.11(f) provides that a local government shall coordinate with
owners of eligible houses to remove beach debris. New §15.11(g) provides
that only beach quality sand may be used in repairs, and the limits of sand
placement. New §15.11(h) provides the information required for review
of repair permits by the GLO. New §15.11(i) 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(j)
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
land ward 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 purpose of the 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 houses are again subject to possible
actions for removal under §61.018(a) of the Texas Natural Resources Code.
It also means that, absent the adoption of this rule, those houses will 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 proposed 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.
Mr. Sam Webb, Deputy Commissioner for the GLO's Coastal Resources Program
Area, has determined that for each year of the first five years the amended
sections as proposed are in effect there will be no fiscal implications for
the state government as a result of enforcing or administering the amended
or new sections. There will be no fiscal impact on the local government as
a result of enforcing or administering the amended sections.
Mr. Webb also has determined that for each year of the first five years
that the rule will be in effect the public benefit will be that local governments
are given discretion to determine repairs to houses located on the public
beach that are necessary to maintain safe conditions on the beach.
Mr. Webb also has determined that there are no additional costs of compliance
for small businesses or large businesses or individuals as result of the proposed
changes.
The GLO has determined a local employment impact statement on these proposed
regulations is not required, because the proposed regulations will not adversely
affect any local economy in a material manner for the first five years they
will be in effect.
The Land Office has reviewed the proposal to amend §15.5 and §15.12
and adding new §15.11 for consistency with the goals and policies of
the Coastal Management Program (CMP). The applicable goals and policies are
found at 31 TAC §501.26, relating to Policies for Construction in the
Beach/Dune System, and §501.27, relating to Policies for Development
in Coastal Hazard Areas. The Land Office has determined that the proposed
actions are consistent with applicable CMP goals and policies. The proposed
amendments will be distributed to Council members in order to provide them
an opportunity to provide comment on the consistency of the proposed rule
during the comment period.
The GLO has evaluated the proposed amendments to determine whether Texas
Government Code, Chapter 2007, is applicable and a detailed takings impact
assessment required. The GLO has determined the proposed amendments do 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 amendments
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 amendments being proposed.
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 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 proposed 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 proposed
rulemaking implements legislative requirements in Texas Natural Resources
Code §61.011, 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.
Written comments on the proposed rulemaking and its consistency with the
CMP may be submitted to Walter Talley, Texas Register Liaison, Texas General
Land Office, Legal Services Division, P.O. Box 12873, Austin, TX 78711-2873;
facsimile number (512) 463-6311; email address walter.talley@glo.state.tx.us.
Comments must be received no later than 5:00 p.m., 30 (thirty) days after
the proposed amendments are published.
The amendments and new section are proposed under 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.
Texas Natural Resources Code §61.011 is affected by the proposed amendments
and new section.
§15.5.Beachfront Construction Standards.
(a) - (b)
(No change.)
(c)
Encroachments on public beaches.
(1)
Prohibition of construction on the public beach.
Except as provided in §15.11, a
[
A
] local government
is prohibited from issuing a certificate authorizing any person to undertake
any construction on the public beach or any construction that encroaches in
whole or in part on the public beach. This prohibition does not prevent the
approval of man-made vegetated mounds and dune walkovers under a properly
issued dune protection permit and beachfront construction certificate. Any
issuance or approval of a permit, certificate, or any other instrument contrary
to this subsection is void.
(2)
Construction landward of the public beach.
Except
as provided in §15.11, local
[
Local
] governments shall
not issue any beachfront construction certificate authorizing construction
landward of the public beach that functionally supports or depends on, or
is otherwise related to, proposed or existing structures that encroach on
the public beach, regardless of whether the encroaching structure is on land
that was previously landward of the public beach.
(d)
(No change.)
§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). For purposes of this section,
the location of the natural line of vegetation shall be determined by the
General Land Office. The General Land Office 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)
List of eligible houses. A list of the houses eligible
to obtain permits and certificates under this section shall be posted on the
Land Office's Internet web site, www.glo.state.tx.us, as soon as practicable
following a survey by the General Land Office that determines the location
of the natural line of vegetation.
(e)
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;
and,
(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.
(f)
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.
(g)
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.
(h)
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. 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.
(i)
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.
(j)
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 Section 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 Section 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.
§15.12.Temporary Order Issued by the Land Commissioner.
(a)
(No change.)
(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) - (2)
(No change.)
(3)
Habitable--The condition of the premises which permits
the inhabitants to live free of serious
hazards
[
defects
]
to health and safety.
(4)
(No change.)
(c)
(No change.)
(d)
While an order issued under this section is in effect,
a local government may issue a certificate or permit authorizing repair of
a house subject to this order if the local government determines that the
repair:
(1) - (6)
(No change.)
(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)
(No change.)
(f)
While an order issued under this section is in effect,
only
beach-quality sand may be placed underneath the footprint of the
house and in an area up to five feet seaward of the house. 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)
(No change.)
(h)
While an order issued under this section is in effect,
a local government is responsible for monitoring the repair of the house under
this section. Any permit or certificate issued by a local government under
this order expires automatically on the date the order expires.
Except
as provided in §15.11, local
[
Local
] governments may
not issue permits or certificates for repairs to houses located on the public
beach easement that are not subject to an order issued under this section.
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 June 7, 2006.
TRD-200603089
Trace Finley
Policy Director
General Land Office
Earliest possible date of adoption: July 23, 2006
For further information, please call: (512) 305-8598