TITLE 31.NATURAL RESOURCES AND CONSERVATION

Part 1. GENERAL LAND OFFICE

Chapter 15. COASTAL AREA PLANNING

Subchapter B. COASTAL EROSION PLANNING AND RESPONSE

31 TAC §15.41, §15.42

The Texas General Land Office (Land Office) adopts amendments to 31 TAC Part 1, Chapter 15, relating to Coastal Area Planning, §15.41, relating to Evaluation Process for Coastal Erosion Studies and Projects and §15.42, relating to Funding Projects From the Coastal Erosion Response Account. The amendments are adopted without changes to the proposed text as published in the December 30, 2005, issue of the Texas Register (30 TexReg 8823) and the text will not be republished.

The amendments are adopted pursuant to the Coastal Erosion Planning and Response Act (CEPRA), Texas Natural Resources Code, Chapter 33, Subchapter H, §§33.601 - 33.612. The CEPRA requires the Land Office to implement a program of coastal erosion avoidance, remediation, and planning. Senate Bill 517, 79th Legislature, Regular Session amended §33.603, Texas Natural Resources Code, by amending subsections (b) and (d) and adding subsection (g), to authorize the use of CEPRA funds for projects including hard structures such as: (1) construction or retrofitting of dams, jetties, groins, and other impoundment structures, provided that the structures include sediment bypass systems; (2) the use of hard or soft structures for the purpose of avoiding, slowing, or remedying erosion on bay shorelines; (3) structural shoreline protection projects utilizing innovative technologies designed or engineered to minimize beach scour; and (4) one or more erosion response demonstration projects if the state's portion does not exceed one-tenth of the total appropriated to the Land Office for coastal erosion planning and response. Senate Bill 517 also amended §33.603, Texas Natural Resources Code, by adding subsection (h) to allow the Commissioner of the GLO to determine the percentage of the shared project cost a qualified project partner must pay for a project undertaken pursuant to subsection (b)(11) for removal of debris or structures, or relocation of structures from the public beach. The amendments to §15.41 and §15.42 are adopted to implement CEPRA as amended by Senate Bill 517.

The amendment to §15.41(1)(A)(xiii) concerning information required in the project goal summary submitted by a potential project partner adds to the list of the types of projects for which funding may be sought new subclause (VII) relating to a structural shoreline protection project on or landward of a public beach that utilizes innovative technologies, designed or engineered to minimize beach scour, in accordance with Texas Natural Resources Code, §33.603(b)(12), and new subclause (VIII) relating to a demonstration project in accordance with Texas Natural Resources Code, §33.603(g). Section 15.41(1)(A)(xv) is also adopted to require the project goal summary to include a description of how the proposed project is consistent with the policies of the Coastal Coordination Council for shore protection projects promulgated in 31 TAC §501.26(b) (relating to Policies for Construction in the Beach/Dune System) if the project involves structural shoreline protection on or landward of a public beach.

The amendments to §15.41(1)(C) concerning the criteria used by the Land Office to evaluate project goal summaries add new clause (x) to include consideration of whether proposed structures will be designed with a sediment bypass system, if the project involves the construction or retrofitting of dams, jetties, groins or other structural impoundments; and new clause (xi) to include consideration of whether the proposed project uses innovative technologies designed or engineered to minimize beach scour in accordance with Texas Natural Resources Code, §33.603(b)(12) and is consistent with the policies of the Coastal Coordination Council promulgated in 31 TAC §501.26(b) (relating to Policies for Construction in the Beach/Dune System), if the project involves structural shoreline protection on or landward of a public beach.

The amendments to §15.42(d) concerning the state's portion of the shared project costs adds a limitation of one-tenth of the total amount appropriated to the Land Office for coastal erosion planning and response during the current state fiscal biennium, if the project is a demonstration project undertaken or funded pursuant to Texas Natural Resources Code §33.603(g) as added by Senate Bill 517. The amendments to §15.42(d) concerning the qualified project partner's portion of the shared project costs for a project undertaken for the removal of debris or structures, or the relocation of structures from the public beach provides that the Land Commissioner may determine the percentage that the qualified project partner must pay in accordance with Texas Natural Resources Code §33.603(h) as added by Senate Bill 517.

The justification for the adopted rulemaking is that potential project partners and the Commissioner of the Land Office will have additional funding options available for projects that utilize hard structures in conjunction with beach nourishment to respond to coastal erosion. A November 2003 study by the University of Texas Bureau of Economic Geology reported that new technologies such as geotextile tubes, in conjunction with beach nourishment, provide an effective response to erosion on the Texas Gulf coast. Geotextile tubes, comprised of fabric tubes filled with sand, are placed parallel to the shoreline to protect property and public infrastructure from storm surge and erosion. Since parts of the Texas coast are undergoing long-term shoreline retreat, local government officials are using these types of projects in conjunction with beach nourishment to mitigate the effects of erosion. CEPRA funding participation in such projects on or landward of the public beach will insure that they will be consistent with the policies of the Coastal Coordination Council promulgated in 31 TAC §501.26(b) (relating to Policies for Construction in the Beach/Dune System).

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, 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 adopted amendments to Chapter 15, Subchapter B 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 CEPRA relating to coastal erosion studies or projects undertaken in cooperation with a qualified project partner under an agreement with the Commissioner of the Land Office.

The adopted rulemaking is not subject to the Texas Coastal Management Program (CMP), Texas Natural Resources Code §33.2053 and 31 TAC §505.11, relating to the Actions and Rules Subject to the Coastal Management Program. Individual erosion response projects undertaken in compliance with these rules may be subject to the CMP, and consistency with the CMP is determined at the appropriate stage of project planning.

The Land Office received no comments during the public comment period.

The amendments are adopted under the Texas Natural Resources Code, §33.602(c) that provides the Commissioner of the General Land Office with the authority to adopt rules to implement Subchapter H, Chapter 33, Texas Natural Resources Code, concerning coastal erosion.

Texas Natural Resources Code, §§33.601 - 33.605 are affected by the adopted amendments.

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 February 14, 2006.

TRD-200600782

Trace Finley

Policy Director

General Land Office

Effective date: March 6, 2006

Proposal publication date: December 30, 2005

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