TITLE 31.NATURAL RESOURCES AND CONSERVATION

Chapter 15. COASTAL AREA PLANNING

Subchapter A. MANAGEMENT OF THE BEACH/DUNE SYSTEM

The General Land Office (GLO) proposes amendments to §15.35, relating to Certification Status of Galveston County Dune Protection and Beach Access Plan (Plan). The GLO proposes an amendment to §15.35 to the certification status of the Plan, adopted on August 16, 1993 and amended by order of the Commissioners' Court of Galveston County, Texas (County), on October 25, 2004, and January 18, 2006. As of the current date, the County's Plan as amended on January 18, 2006, can be viewed on the County's website at http://www2.co.galveston.tx.us/dunes/dunes_project_select.htm. New §15.35(a) eliminates the language stating that the certification of the Plan is conditional, and states that the amended Plan is consistent with state law. New §15.35(b) certifies that the "fibercrete" variance requested by the County relating to special dune protection standards for eroding areas in Section II(L) and Section III(A)(2)(i) of the Plan is consistent with state law. New §15.35(c) certifies that the variance from the Beach/Dune Rules relating to the construction of cisterns, septic tanks, and septic fields seaward of a structure under certain conditions in Section III(A)(2)(k) of the Plan is consistent with state law.

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, 15.12, 15.21 - 15.36), a local government with jurisdiction over Gulf Coast beaches must submit its dune protection and beach access plan and any amendments to such a plan to the GLO for certification. 31 TAC §15.3(o). The GLO reviews a local beach access and dune protection plan and, if appropriate, certifies that the plan is consistent with state law by adoption or amendment of a rule as authorized in Texas Natural Resources Code §61.011(d)(5). The certification by rule reflects the state's approval of the plan, but the text of the plan is not adopted by the GLO. 31 TAC §15.3(o)(4).

The commissioners court of each county including Gulf shoreline must establish a dune protection line (DPL) for the purpose of preserving sand dunes. Texas Natural Resources Code §63.011(a). A county may expressly delegate the authority to establish a DPL to a municipality within the county, which may adopt ordinances to implement the Dune Protection Act. Texas Natural Resources Code §63.011(b). A local government with authority to establish a DPL, that is, a county bordering the Gulf or a municipality within such a county with express delegation, must establish the DPL in accordance with state law. 31 TAC §15.3(f). A local government with the responsibility to establish a DPL must establish that line landward of all critical dune areas within 1,000 feet of mean high tide of the Gulf of Mexico. 31 TAC §15.3(f). The Land Commissioner, as trustee of the public lands of Texas, has the responsibility to identify and protect critical dune areas. 31 TAC §15.3(d). The local jurisdiction must notify the GLO of the establishment of and any changes to that DPL and submit information regarding the DPL to the GLO as part of its dune protection and beach access plan. 31 TAC §15.3(j). The local government must conduct a field inspection to determine the location of the DPL if it is to lie seaward of 1,000 feet from mean high tide. 31 TAC §15.3(f). The GLO may assist and advise a local government in establishing or modifying a DPL. 31 TAC §15.3(i). A local government that establishes a DPL must review it every five years, as well as within 90 days after a tropical weather system affects that portion of the coast, to determine whether the DPL still adequately protects critical dune areas. 31 TAC §15.3(k). The County expressly delegated authority to regulated dune protection and beach access within the City of Galveston to the City in Section VIII(D)(1) of the 1993 Plan (Section II(C)(2) of the Plan). The County also expressly delegated the authority to regulate dune protection and beach access in the Village of Jamaica Beach to the Village in Section VIII(D)(2) of the 1993 Plan (Section II(C)(3) of the Plan).

A local jurisdiction proposing to adopt of amend beach user fees must submit a plan detailing the proposed action to the GLO for certification. The GLO reviews a local jurisdiction's beach user fee plan and, if appropriate, certifies by rule that the beach user fee plan is consistent with the Open Beaches Act, the Dune Protection Act, and the Beach/Dune Rules. Texas Natural Resources Code §61.022(c), 31 TAC §15.8(e).

A local government requesting certification of a plan or plan amendment that includes a variance of any requirement or prohibition in the GLO's Beach/Dune Rules must submit to the GLO a reasoned justification demonstrating how the variance provides equal or better protection of dunes, dune vegetation, and public access to and use of the public beach than is provided by the Beach/Dune Rules. 31 TAC §15.3(o)(6).

Galveston County is a coastal county consisting of areas bordering Galveston Bay, Galveston Island, and Bolivar Peninsula. The County borders the Gulf of Mexico to the southeast, extending from the westernmost boundary of Chambers County on Bolivar Peninsula to the east to San Luis Pass on Galveston Island on the west. Galveston Island is a barrier island at the mouth of Galveston Bay, accessible by car from Harris County and points north by the Galveston Causeway on IH-45. Bolivar Peninsula is separated from Galveston Island by Bolivar Roads, an inlet connecting Galveston Bay to the Gulf of Mexico. Bolivar Peninsula is not accessible to Harris County by car. It is accessible from Galveston Island to its southwest only by car ferry (a 25-minute ride). Highway access to Bolivar Peninsula from Chambers County to the northeast is via coastal Highway 87, far removed from highly populated areas.

The Gulf beaches governed by the Plan are those within the County on the beaches on Bolivar Peninsula and the following areas on Galveston Island: (1) The unincorporated Pirates' Beach subdivision; and (2) four County beach parks: (i) Beach Pocket Park #1 at 7-1/2 Mile Road and FM 3005 (Pocket Park #1); (ii) Frank Carmona Pocket Park #2 at 9-1/2 Mile Road and FM 3005 (Pocket Park #2); (iii) Beach Pocket Park #3 at 11 Mile Road and FM 3005 (Pocket Part #3), and (iv) Beach Pocket Park #4 at 22 Mile Road and FM 3005 (Pocket Park #4). The Gulf beaches within the corporate limits of the City of Galveston are governed by the City of Galveston Dune Protection and Beach Access Plan (City's Plan), certified in part and conditionally certified in part in 31 TAC §15.36. The text of the City's plan and related documents can be viewed on the City's website at http://www.cityofgalveston.org/pdf/04p72stf.pdf. The Gulf beaches within the corporate limits of the City of the Village of Jamaica Beach are governed by the Village of Jamaica Beach Dune Protection and Beach Access Plan, certified as consistent with state law in 31 TAC §15.29.

On August 16, 1993, the Commissioners' Court of Galveston County issued an order adopting the Galveston County Dune Protection and Beach Access Plan for Bolivar Peninsula and Unincorporated Areas of Galveston Island (1993 Plan) that is currently in force. The County submitted the 1993 Plan to the GLO with a request for certification in accordance with state law. In response to that request, the GLO amended to Beach/Dune Rules to provide that the 1993 Plan is "conditionally certified . . . until the county amends its plan according to the comments provided by the General Land Office to the county on October 18, 1993, or until the General Land Office officially revokes the conditional certification." 31 TAC §15.35.

Over the intervening years since the 1993 Plan was conditionally certified, the GLO and the County have maintained an ongoing dialogue concerning various proposed changes to the 1993 Plan that would warrant unconditional certification. Much of that dialogue has focused on certain changes necessary to satisfy the requirements of state law, particularly with respect to the DPL. The 1993 Plan has provided that the DPL is 50 feet landward of the line of vegetation, except in areas where critical dunes lie landward of 50 feet, in which case the DPL lies landward of such critical dunes areas. This ambiguous DPL has been an overriding concern of the GLO in discussing amendments to the County's plan.

On October 25, 2004, the Commissioners' Court of Galveston County adopted amendments to the 1993 Plan and submitted those amendments to the GLO with a request for certification. The amended plan included, among other changes, a dune protection line fixed at 200 feet landward of the line of vegetation on Bolivar Peninsula. It also included amended beach user fees for areas on Galveston Island, as well as a new beach user fee for Bolivar Peninsula, imposed as a $10 annual parking sticker for parking on Bolivar beaches. The GLO responded to the County's request for certification with comments concerning several aspects of the October 25, 2004, amendments that were not consistent with state law. After months of discussion with the GLO and several field inspections of critical dune areas, the County made additional amendments to the 1993 Plan, adopting an amended and restated version of the October 25, 2004 amendments on January 18, 2006 (2006 Plan).

The 2006 Plan includes a number of notable changes from the 1993 Plan: (1) The DPL is established at 200 feet landward of the line of vegetation on Bolivar Peninsula, except for areas on the western end, where the DPL is delineated by metes and bounds, reflecting a line landward of all critical dune areas identified by the GLO and the County after several mutual field inspections; (2) The 2006 Plan authorizes a new beach user fee for Bolivar Peninsula only, which will require a parking sticker for vehicles to park on Bolivar Peninsula beaches at a cost of $10.00 annually. Additional parking fees are authorized at Pocket Parks #2 and #3 on Galveston Island (no fee is imposed at Pocket Parks #1 and #4); (3) a special standard is adopted for construction in eroding areas providing that unreinforced fibercrete may be used for the footprint of a habitable structure and a driveway under certain conditions; (4) under certain conditions, construction of cisterns, septic tank, and septic field on previously existing, permitted, or platted lots may be placed seaward of a structure provided that they do not encroach on the public beach.

The 2006 Plan also updates the description of beach access points. A detailed designation of the beach accessways on Bolivar Peninsula and the unincorporated areas of Galveston Island can be found in Section V(B)(1) of the 2006 Plan, with maps included at Appendices 5 and 6.

The GLO reviewed information provided by the County by letters dated November 1, 2004, January 4, 2005, and January 24, 2005, in support of its request to impose its beach user fee plan as required by 31 TAC §15.8(d), together with beach user fee revenue reports required by 31 TAC §15.8(f). Based on the information provided by the County, the GLO has determined that the fee requested is reasonable in that it does not exceed the necessary and actual cost of providing reasonable beach-related facilities and services, does not unfairly limit public use of and access to and from public beaches in any manner, and is consistent with §15.8 of the Beach/Dune Rules and the Open Beaches Act.

Section 15.8 of the Beach/Dune Rules requires that local governments within a county adopt a state-approved system of reciprocity of beach users fees and fee privileges as a condition of certification of plan amendments. The 2006 Plan addresses the reciprocity requirement in Section VI (A)(6) and Section VI(E). The Park Board of Trustees for the City of Galveston currently manages the City's beach parks as well as the County's Pocket Parks on Galveston Island. The County, the City of Galveston, and the Park Board of Trustees for the City of Galveston have entered into as InterLocal Agreement that governs the collection and expenditure of beach user fees collected by the Park Board from the City's parks and the Pocket Parks on Galveston Island. The GLO anticipates that the County, the City, and the Park Board will enter into an agreement to address specific issues relating to the reciprocity of the new and increased beach user fees on Bolivar Peninsula and Galveston Island authorized in the 2006 Plan and the beach user fees imposed on Galveston Island in accordance with the City's Plan. The GLO will consider approval of the system of reciprocity prior to any final adoption of amendments to 31 TAC §15.35.

The General Land Office proposes to certify as consistent with state law the following variances from §§5.4(c)(8), 15.5(b)(3), and 15.6(f)(3) of Beach/Dune Rules (relating to Dune Protection Standards, Beachfront Construction Standards, and Concurrent Dune Protection and Beachfront Construction Standards) in the County's plan. The plan establishes special standards for eroding areas providing that: (1) paving or altering the grade below the lowest habitable floor is prohibited in the area between the line of vegetation and 25 feet landward of the landward toe of the back dune; (2) 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 maximum of 4 foot x 4 foot sections, which shall be a maximum of four inches thick with sections separated by expansion joists or pervious materials approved by the County Building Official, in that area 25 feet from the landward toe of the back dune to 200 feet landward of the line of vegetation; a "Fibercrete Maintenance fee" of $200.00 shall be assessed by the County to be used to pay for the clean-up of fibercrete from the public beaches should the need arise; and reinforced concrete may be used in that area landward of 200 feet from the line of vegetation to alter or pave only the ground within the footprint of the habitable structure. The reasoned justification submitted by the County in support of its request for the variance authorizing the use of fibercrete in eroding areas within 200 feet seaward of the line of vegetation suggests that it provides an equal or better level of protection of dunes, dune vegetation, and public access to and use of the beach in that: (1) financial assurance for debris removal and beach clean-up through imposition of the maintenance fee; (2) debris removal and beach clean-up are facilitated by the use of unreinforced fibercrete in large 4 foot x 4 foot sections rather than small pavers, with less sand removed from the beach during clean-up; (3) the 4 foot x 4 foot sections of fibercrete help with wind-load requirements for windstorm and FEMA regulations by shifting the point of movement in pilings during a storm from below grade level without fibercrete to grade where fibercrete is present; and (4) prohibiting the use of fibercrete in the area between the line of vegetation and 25 feet from the landward toe of the back dune ensures that dune hydrology are not adversely affected.

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 amendments are in effect there will be no fiscal implications for the state government as a result of enforcing or administering the amendments. There will be a fiscal impact on the local government as a result of enforcing or administering the amendments. The County will experience an increase in net revenue estimated at approximately $380,000 for each year of the first five years the amended section as proposed is in effect as a result of the increased beach user fees to be collected, with approximately $80,000 from increased beach user fees from the Pocket Parks on Galveston Island and approximately $300,000 from the new beach user fees on Bolivar Peninsula.

The GLO has determined that the proposed rule changes will not have an effect on the costs of compliance for small businesses or large businesses as the proposed changes relate to permits for parking on the beach. Individuals required to comply with the County's amended plan to increase the beach user fee to be collected in fee areas for parking on the beach will experience increased costs for parking of up to $10.00 per year. The 2006 Plan also identifies no-fee areas on Bolivar Peninsula in Section VI(A)(1)(i) and Appendix 8, as required by 31 TAC §15.8(h), which serves to mitigate the impact of the new beach user fee on Bolivar beachgoers.

Mr. Sam Webb has determined the public will benefit from the increase in the beach user fees imposed by Galveston County, which will continue to fund and provide adequate and improved beach-related services to the public including the following: funding for ensuring safe use of and access to and from the public beach, including vehicular controls, management, and parking regulations; sanitation and litter control, including providing and servicing trash receptacles; law enforcement; providing public facilities such as portable restrooms; and installing signage explaining the nature and extent of vehicular controls, parking areas, and access points.

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 proposal to amend §15.35 concerning Certification Status of Galveston County Dune Protection and Beach Access Plan is subject to the Coastal Management Program (CMP), 31 TAC §505.11(a)(1)(J), relating to the Actions and Rules Subject to the CMP. The Land Office has reviewed these proposed actions for consistency with the CMP's goals and policies in accordance with the regulations of the Coastal Coordination Council (Council). 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 proposed actions are consistent with the Land Office's Beach/Dune Rules that the Council has determined to be consistent with the CMP. Consequently, 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, 61.015(b), and 61.022(c), 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 to certify that plans to impose or increase public beach access, parking, or use fees are consistent with state law.

A public hearing on this notice of proposed rulemaking will be held on Monday, March 27, 2006, at 5:00 p.m., at the Ray Holbrook Building, 601 Tremont, Galveston, Texas, in the First Floor Conference Room.

Written comments may be submitted to Ms. Deborah Cantu, 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 deborah.cantu@glo.state.tx.us. Comments must be received no later than 5:00 p.m., 30 (thirty) days after the proposed amendments are published. Copies of the local government dune protection and beach access plans and any amendments to those plans are available from the local government and from the General Land Office's Archives Division, Texas General Land Office, P.O. Box 12873, Austin, TX 78711-2873, phone number (512) 463-5277.

The amendments are proposed 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 proposed amendments.

§15.35.Certification Status of Galveston County Dune Protection and Beach Access Plan.

(a)

Galveston County (County) has submitted to the General Land Office a dune protection and beach access plan which [ ~~is conditionally certified as consistent with state law. The county's plan~~ ] was adopted on August 16, 1993 , and amended on October 25, 2004, and January 18, 2006. The County's plan is certified as consistent with state law. [ This conditional certification will remain in effect until the county amends its pan according to the comments provided by the General Land Office to the county on October 18, 1993, or until the General Land Office officially revokes 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 County's plan. The plan establishes special standards for eroding areas providing that:

(1) paving or altering the grade below the lowest habitable floor is prohibited in the area between the line of vegetation and 25 feet landward of the landward toe of the back dune;

(2) 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 maximum of 4 foot x 4 foot sections, which shall be a maximum of four inches thick with sections separated by expansion joists or pervious materials approved by the County Building Official, in that area 25 feet from the landward toe of the back dune to 200 feet landward of the line of vegetation;

(3) a "Fibercrete Maintenance fee" of $200.00 shall be assessed to be used to pay for the clean-up of fibercrete from the public beaches should the need arise; and

(4) reinforced concrete may be used in that area landward of 200 feet from the line of vegetation to alter or pave only the ground within the footprint of the habitable structure.

(c) The General Land Office certifies as consistent with state law the following variances from §15.4(c)(10) of the this title (relating to Dune Protection Standards) in the County's plan. The plan prohibits the construction of cisterns, septic tanks, and septic fields seaward of any structure serviced by the cisterns, septic tanks, and septic fields, except that:

(1) cisterns, septic tanks, and septic fields that are in existence prior to the effective date of the County's plan may be repaired or replaced;

(2) cisterns, septic tanks, and septic fields that are located in subdivisions platted before the effective date of the County's plan and permitted before the effective date of the County's plan may be constructed, repaired, or replaced; and

(3) cisterns, septic tanks, and septic fields that are located in subdivisions platted before the effective date of the County's plan may be constructed, repaired, or replaced in a location seaward of the structure they are to serve provided that the applicant shows that it is not practicable to locate the cisterns, septic tanks, and septic fields landward of the structure they are to serve.

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 March 3, 2006.

Earliest possible date of adoption: April 16, 2006

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