31 TAC §15.32
The General Land Office (GLO) adopts amendments to §15.32
relating to Certification Status of Cameron County Dune Protection and Beach
Access Plan (Plan) without changes to the proposed text as published in the
November 3, 2006, issue of the
Texas Register
(31
TexReg 8963) and the text of the rule as amended will not be republished.
The GLO adopts amendments to §15.32 to the certification status of the
Plan, adopted on September 20, 1994, and previously amended on November 5,
1996, by order of the Commissioners' Court of Cameron County, Texas (County),
and on November 5, 1996, to incorporate the Padre Shore Ltd. Final Master
Plan Amendment. The County sought approval of amendments to its Plan adopted
by order of the Commissioners' Court of the County on August 29, 2006, as
Order No. 2006O8004 (2006 Plan Amendments). The adopted amendments to §15.32
delete language in subsection (b) concerning the 440-foot building line that
has been eliminated by the County's 2006 Plan Amendments. The amendments to §15.32
also delete subsection (c) concerning the Padre Shore Ltd. Final Master Plan
Amendment because most of the area governed by the Master Plan Amendment has
been annexed by the Town of South Padre Island (Town). In addition, the Padre
Island Shore Ltd. Final Master Plan had a ten-year term and expired on November
6, 2006. The portion of the Padre Shore Ltd development that is outside of
the corporate limits of the Town of South Padre Island but within its extraterritorial
jurisdiction will require individual dune protection permits issued by the
County and beachfront construction certificates issued by the Town.
Pursuant to the Open Beaches Act (Texas Natural Resources Code, Chapter
61, "OBA" hereinafter), the Dune Protection Act (Texas Natural Resources Code,
Chapter 63, "DPA" hereinafter), and the Beach/Dune Rules (31 TAC §§15.1
- 15.12 and §§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 as provided
in 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) and §61.015(b). The certification by rule reflects
the state's approval of the plan, but the text of the plan is not adopted
by the GLO as provided in 31 TAC §15.3(o)(4).
A local jurisdiction proposing to adopt or 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
and the Beach/Dune Rules as provided in Texas Natural Resources Code, §61.022(c)
and 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 at 31 TAC §15.3(o)(6).
Cameron County is a coastal county that borders the Gulf of Mexico to the
east, extending from the Rio Grande River, its southern boundary with Mexico,
northward to the southernmost boundary of Willacy County on South Padre Island.
South Padre Island is a barrier island, accessible by car from Cameron County
and points west by the Queen Isabella Causeway on State Park Road 100. Boca
Chica Beach is separated from South Padre Island by Brazos Santiago Pass,
an inlet connecting the Laguna Madre to the Gulf of Mexico. Highway access
to Boca Chica Beach is from Cameron County to the west via Boca Chica Highway,
State Highway 4, removed from populated areas.
The Gulf beaches governed by the Plan are those unincorporated areas within
the County including Boca Chica Beach and the following areas on South Padre
Island: Isla Blanca Park, Andy Bowie Park, and the Gulf beaches north of the
Town of South Padre Island. The Gulf beaches within the corporate limits of
the Town of South Padre Island are governed by the Town of South Padre Island's
Dune Protection and Beach Access Plan, certified at 31 TAC §15.30.
The 2006 Plan Amendments change the Plan by deleting Section III, Paragraph
I - Building Line, in its entirety and by adopting language amending Section
III, Paragraph G - Special Provisions Regarding Dunes and Section IV, Paragraph
A, Development in Eroding Coastal Areas, to limit the use of concrete or other
impervious surfaces within 200 feet from the line of vegetation as defined
in the OBA. In addition, the Plan is modified to clearly identify locations
in the area covered by the County's Plan where beach access is provided (Beach
Access Points) that require conservation fees and those County Beach Access
locations that permit free vehicular beach access. The modifications to the
Plan also increase the beach conservation fee for passenger cars at Isla Blanca
Park and Andy Bowie Park from $1.00 per day to $4.00 per day and increase
the beach conservation fee for passenger cars at Beach Access Points 5 and
6 from $1.00 per day to $3.00 per day. The modifications to the Plan increase
the beach conservation fee for quarterly passes from $7.50 to $15.00 and for
annual passes from $20.00 to $39.00. Annual passes purchased in bulk quantities
of 25 or more are available for $22.50. New beach conservation fees at Isla
Blanca Park and Andy Bowie Park for buses up to 45 passengers will be $10
per day and $15.00 per day for buses with over 45 passengers. Finally, the
County seeks to impose a beach conservation fee of $2.00 for motorcycles at
Isla Blanca Park, Andy Bowie Park, and Beach Access Points 5 and 6. The 2006
Plan also identifies no-fee on-beach parking areas at Beach Access Points
7 (Boca Chica Beach), Beach Access Point 4, and Beach Access Point 6 (seasonal),
as well as no-fee off-beach parking areas at Beach Access Points 3, 4, 5,
and 7.
The GLO reviewed information provided by the County in support of its 2006
Plan Amendments and requests to change its beach user fee plan as required
by 31 TAC §15.8(d), including the following: (1) revenue and expense
information provided July 20, 2006, at a meeting in Austin, Texas between
Cameron County Judge Gilberto Hinojosa and Texas Land Commissioner Jerry Patterson,
including their respective staff members; (2) visitor counts and revenue and
expense information in a proposed beach user fee plan provided by the Cameron
County Parks System Director by E-mail dated August 3, 2006; (3) beach user
fee reports required by 31 TAC §15.8(f) with revenue and expense information
spanning 2002 through the County's third quarter of 2006 submitted by the
Cameron County Parks System Director August 23, 2006; (4) revenue statistics
for 90-day, day use, and annual passes received from the County by E-mail
and facsimile on August 25, 2006; (5) responses received from the County on
September 7, 2006 and September 11, 2006, to inquiries from the GLO concerning
beach user fee reports and revenue statistics; and (6) the County's 2005 Parks
System Audit submitted by the Cameron County Auditor on September 14, 2006.
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 certified as consistent with §15.8 of the Beach/Dune
Rules and the Open Beaches Act.
The 2006 Plan also updates the description of Beach Access Points. A detailed
designation of the beach accessways on Boca Chica Beach and the unincorporated
areas of South Padre Island can be found in Section II of the 2006 Plan, with
maps included as exhibits to the Plan. The 2006 Plan provides for restricted
vehicular access with off-beach parking at Access Point 1 - Isla Blanca Park;
Beach Access Point 2 - Andy Bowie Park; Beach Access Point 3 - (approximately
0.3 miles north of Andy Bowie Park); and Beach Access Point 4 (approximately
one mile north of Andy Bowie Park). Vehicular access is provided at three
existing beach access points: Beach Access Point 5 - E. K. Atwood Park (approximately
1.6 miles north of Andy Bowie Park); Beach Access Point 6 (approximately 4.5
miles north of Andy Bowie Park); and Beach Access Point 7 - Boca Chica Beach.
Vehicular traffic is allowed on the beach between Beach Access Points 5 and
6.
A local government shall regulate pedestrian or vehicular beach access,
traffic, and parking on the beach only in a manner that preserves or enhances
existing public right to use and have access to and from the beach. According
to the Beach/Dune Rules at 31 TAC §15.7(h)(1), if vehicular access is
restricted to a stretch of beach, beach access and use is presumed to be preserved
if these criteria are met: One parking space on or adjacent to the beach for
every fifteen linear feet of beach restricted to vehicular traffic, ingress/egress
ways no farther apart than 1/2 mile, and conspicuous signage explaining the
nature and extent of vehicular controls, parking areas, and access points.
The distance between Beach Access Point 4 and Beach Access Point 5 is approximately
3,100 feet, which is 460 feet greater than the 1/2 mile criteria provided
in 31 TAC §15.7(h)(1)(B). By letter from County Judge Gilberto Hinojosa,
dated November 17, 2006, the County committed to enhancements to beach access
and use, specifically on-beach parking at Access Point 5 immediately adjacent
to the pedestrian beach, combined with off-beach parking at Beach Access Points
4 and 5 that exceeds the presumptive criteria (one parking space on or adjacent
to the beach for every fifteen linear feet of beach restricted to vehicular
traffic) by at least 88 parking spaces. Considering the fact that the distance
between Beach Access Point 4 and Beach Access Point 5 is less than 0.1 miles
greater than the presumptive 1/2 mile criteria and the enhancements to beach
access and use committed in Judge Hinojosa's letter, the County may continue
to restrict vehicular access to the area between Beach Access Point 4 and
Beach Access Point 5. Accordingly, the GLO finds that beach access and use
is preserved or enhanced and the variance from the presumptive 1/2 mile criteria
is certified as consistent with the OBA and DPA, provided that the enhancements
committed to by the County are maintained.
The 2006 Plan Amendments that change the Plan by deleting Section III,
Paragraph I - Building Line, in its entirety are accompanied by changes adopting
language amending Section III, Paragraph G - Special Provisions Regarding
Dunes and Section IV, Paragraph A, Development in Eroding Coastal Areas, to
limit the use of concrete or other impervious surfaces within 200 feet from
the line of vegetation as defined in the OBA. The Building Line, also referred
to as the 440-foot building line, prohibited the construction of a permanent
structure or building east or seaward of a line 240 feet landward of the line
of vegetation as determined in accordance with the OBA, running generally
north and south and extending no further landward than 440 feet from mean
low tide.
The GLO certifies the forgoing Plan Amendment as consistent with the OBA
and the DPA since the deleted provisions concerning the 440-foot building
line provided a stricter standard than required by the Beach/Dune Rules and
is accompanied by the adoption of language to limit the use of concrete or
other impervious surfaces within 200 feet from the line of vegetation, consistent
with the provisions of the Beach/Dune Rules in §§15.4(c)(8), 15.5(b)(3),
and 15.6(f)(3) of the Beach/Dune Rules. Section 15.4(c)(8) prohibits the construction
of concrete slabs or other impervious surfaces outside the perimeter of a
habitable structure whose area exceeds 5.0% of the footprint of the habitable
structure within 200 feet landward of the natural line of vegetation. Section
15.5(b)(3) prohibits a local government from issuing a beachfront construction
certificate if the construction includes a proposal to build a concrete slab
or other impervious surface outside the perimeter of a habitable structure
whose area exceeds 5.0% of the footprint of the habitable structure and is
structurally attached to the building's foundation within 200 feet landward
of the line of vegetation. Section 15.6(f)(3) applies to construction in eroding
areas and provides that a local government may allow a permittee to alter
or pave only the ground within the footprint of the habitable structure and
only if the alteration or paving will be entirely undertaken, constructed,
and located landward of 200 feet landward from the line of vegetation or landward
of an eroding area boundary established in the local dune protection and beach
access plan, whichever distance is greater. Most, if not all, of the unincorporated
area of Cameron County north of the Town of South Padre Island that is covered
by this Plan is in an eroding area with erosion rates at least 5 to 10 feet
per year, as determined by the University of Texas, Bureau of Economic Geology.
The GLO's original certification of the County's 1994 Plan specifically
provided that the 440-foot building line shall not be operative unless it
is landward of the line of vegetation established as required in the OBA.
In those areas where the 440-foot building line was landward of the line of
vegetation, it provided a stricter standard than required by the Beach/Dune
Rules. The 2006 Plan Amendments will allow the permitting of construction
in some areas in which it was previously prohibited by the 440-foot building
line. As recognized in the GLO's certification of the County's 1994 Plan,
there are areas in the unincorporated area of Cameron County covered by this
Plan where the line of vegetation (landward boundary of the public beach)
may extend further landward than 440 feet from mean low tide. These areas
are very dynamic and the line of vegetation (landward boundary of the public
beach) is determined in accordance with the provisions of §61.016 and §61.017
of the OBA. The boundary of the public beach easement does not automatically
revert to 200 feet from the line of mean low tide by the repeal of the 440-foot
building line. Construction on the public beach or any larger area abutting
on or contiguous to a public beach if the public has acquired a right of use
or easement to or over the area by prescription, dedication, or has retained
a right by virtue of continuous right in the public is prohibited by §61.013
of the OBA and is not allowed by the County's 2006 Plan Amendments.
No comments were received from the public concerning the adopted rulemaking.
The justification for adoption of the adopted rulemaking is that the public
will benefit from the increase in the beach user fees imposed by Cameron 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 restrooms; and installing signage explaining the nature
and extent of vehicular controls, parking areas, and access points. In addition,
the public will benefit from the elimination of the 440-foot building line
from the County's Plan in that the change to the Plan removing limitations
on construction that exceed state standards will promote economic development
in the area adjacent to the beach within the County's jurisdiction, while
maintaining regulations that are consistent with the Open Beaches Act, the
Dune Protection Act, and the Beach/Dune Rules.
The adoption of the amendment to §15.32 concerning Certification Status
of Cameron 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 the
adopted rulemaking 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. No comments on the consistency of
the adopted rulemaking were received from the public or Council members. The
adopted rulemaking is consistent with the Land Office's Beach/Dune Rules that
the Council has determined to be consistent with the CMP. Consequently, the
Land Office affirms its determination that the adopted actions are consistent
with applicable CMP goals and policies.
The GLO 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 adopted 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, 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.
The amendments are adopted under the Texas Natural Resources
Code, §§61.011, 61.015(b), 61.022(c), and 61.070 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. In addition, Texas Natural Resources
Code, §63.121 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, 61.022, 61.070,
and 63.121 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 January 26, 2007.
TRD-200700210
Trace Finley
Policy Director
General Land Office
Effective date: February 15, 2007
Proposal publication date: November 3, 2006
For further information, please call: (512) 305-8598