CHAPTER 15. COASTAL AREA PLANNING
SUBCHAPTER A. MANAGEMENT OF THE BEACH/DUNE SYSTEM
The General Land Office (GLO) proposes amendments to §15.22, relating to Certification Status of Brazoria County Dune Protection and Beach Access Plan (Plan). The GLO proposes an amendment to §15.22 relating to the certification status of the Plan, adopted on August 9, 1993, and amended by Brazoria County (County), on September 27, 1993. The amendment to §15.22 proposes to certify as consistent with state law the amendments to the Plan that were adopted by Brazoria County on April 8, 2008 by Order No. 39. The amendment includes a variance requested by the County relating to the use of unreinforced fibercrete in four feet by four feet sections in the area 25 feet landward of the north toe of the dune to 200 feet landward of the line of vegetation. Copies of the local government dune protection and beach access plan and any amendments to those plans are available from the Floodplain/911 Administrator Penny Goode, who may be contacted at 451 North Velasco Street, Suite 210, Angleton, Texas 77515 Phone: (979) 864-1295, Fax: (979) 864-1003, Email: pennyg@brazoria-county.com.
BACKGROUND
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 - 15.12, 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 pursuant to 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 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, as required by 31 TAC §15.3(o)(6).
Brazoria County is a coastal county consisting of areas bordering West Bay, Chocolate Bay, and Christmas Bay. The County also borders the Gulf of Mexico to the southeast, extending from the southernmost boundaries of Galveston County at the San Luis Pass south to the northernmost boundary of Matagorda County at Cedar Lake Creek. The Gulf beaches and adjacent areas governed by the Plan are those areas within Brazoria County.
VARIANCE
On April 8, 2008, the Brazoria County Commissioner's Court adopted amendments to its Plan and submitted those amendments to the GLO with a request for certification received by the GLO on April 16, 2008. The County requested that the GLO certify a Plan amendment that includes a variance from the prohibitions and requirements of §§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 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 within 200 feet landward of the line of vegetation or within the eroding area boundary, whichever distance is greater. 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 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.
The requested variance establishes special standards 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 north toe of the 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 four feet by four feet sections, which shall be a maximum of four inches thick with sections separated by expansion joints or pervious materials approved by the Floodplain Administrator, in that area 25 feet from the north toe of the dune to 200 feet landward of the line of vegetation, with driveway width limited to no more width than necessary to service two vehicles; (3) the County shall assess a "Fibercrete Maintenance fee" of $200.00 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 under the habitable structure and for a driveway connecting the habitable structure and the street in that area landward of 200 feet from the line of vegetation.
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 advances the public interest and provides an equal or better level of protection of dunes, dune vegetation, and public access to and use of the beach in that: (1) the ordinance provides financial assurance for debris removal and beach clean-up through imposition of the $200 fibercrete maintenance fee; (2) debris removal and beach clean-up are facilitated by the use of unreinforced fibercrete in large 4 feet by 4 feet sections rather than small pavers, with less sand removed from the beach during clean-up; and (3) prohibiting the use of fibercrete in the area between the line of vegetation and 25 feet from the north toe of the dune ensures that dune hydrology are not adversely affected. Accordingly, the General Land Office finds that the variance requested by the County and the County's reasoned justification for the variance meet the requirements for a variance under §15.3(o)(6) of the Beach/Dune Rules and proposes to certify as consistent with state law the requested variances from §§15.4(c)(8), 15.5(b)(3), and 15.6(f)(3) of the Beach/Dune Rules (relating to Dune Protection Standards, Beachfront Construction Standards, and Concurrent Dune Protection and Beachfront Construction Standards).
FISCAL AND EMPLOYMENT IMPACTS
Ms. Jody Henneke, Deputy Commissioner for the GLO's Coastal Resources Program Area, has determined that for each year of the first five years the proposed amendments are in effect there will be no fiscal implications for the state government as a result of enforcing or administering the proposed amendments. There will be fiscal impact on the local government as a result of enforcing or administering the proposed amendments. The Plan changes authorizing the County to assess a $200 Fibercrete Fee will result in an increase in revenue of approximately $1,000 for each of the first five years the Plan amendment is in effect based on an estimate of five permits issued per year.
Ms. Henneke has also determined that the proposed rule changes will not have an effect on the costs of compliance for small or large businesses. Individuals who are required to comply with the fibercrete ordinance will experience an increase in cost of $200 per permit application if they seek to use fibercrete in the areas permitted by the ordinance.
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.
PUBLIC BENEFIT
Ms. Henneke has determined the public will benefit from the proposed amendments for the same reasons cited in the County's reasoned justification for the variance. Specifically, the justification by the County supports the finding that the fibercrete ordinance advances the public interest and provides an equal or better level of protection of dunes, dune vegetation, and public access to and use of the beach in that (1) the ordinance provides 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 feet by 4 feet sections rather than small pavers, with less sand removed from the beach during clean-up; and (3) prohibiting the use of fibercrete in the area between the line of vegetation and 25 feet from the north toe of the dune ensures that dune hydrology are not adversely affected. In addition, the fibercrete ordinance is consistent with similar ordinances adopted by the City of Galveston and the City of the Village of Jamaica Beach for similar conditions nearby and its certification promotes uniformity in regulations.
CONSISTENCY WITH CMP
The proposal to amend §15.22 concerning Certification Status of Brazoria 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 GLO 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 amendment will not allow the material weakening of dunes and does not affect the requirement that unavoidable damage to dunes and dune vegetation be compensated. Additionally, the amendment will preserve public beach access by assisting with debris removal in the event of a storm. The GLO has determined that the proposed actions provide equal or better protection for dunes, dune vegetation, and public access to and use of the beach as the GLO's Beach/Dune Rules that the Council has determined to be consistent with the CMP. Consequently, the GLO has determined that the proposed actions are consistent with applicable CMP goals and policies. The proposed amendment 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.
TAKINGS IMPACT ASSESSMENT
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.
ENVIRONMENTAL REGULATORY ANALYSIS
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 Texas Natural Resources Code §63.121 which provides the Texas General Land Office with authority to adopt rules for protection of critical dune areas..
PUBLIC COMMENT REQUEST
Written comments on the proposed plan amendment and its consistency with the CMP may be submitted to Mr. Walter Talley, Texas Register Liaison, Texas General Land Office, Legal Services Division, P.O. Box 12873, Austin, Texas 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., thirty (30) days after the proposed amendments are published.
STATUTORY AUTHORITY
The amendments are proposed under the Texas Natural Resources Code §§61.011, 61.015(b), and 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 proposed amendments.
§15.22.Certification Status of Brazoria County Dune Protection and Beach Access Plan.
(a) Brazoria County has submitted to the
General Land Office a dune protection and beach access plan which
is certified as consistent with state law. The County's [
county's] plan was adopted on August 9, 1993, and
amended on September 27, 1993 and April 8, 2008.
(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 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 north toe of the 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 four (4) feet by four (4) feet sections, which shall be a maximum of four inches thick with sections separated by expansion joints, or pervious materials approved by the Floodplain Administrator and the driveway width shall be limited to no more than the width necessary to service two vehicles, in that area 25 feet landward of the north toe of the dune to 200 feet landward of the line of vegetation.
(3) The County shall assess a "Fibercrete Maintenance Fee" of $200.00 to be used to pay for the cleanup of fibercrete from the public beaches should the need arise.
(4) Reinforced concrete may be used under the habitable structure and for a driveway connecting the habitable structure and the street in that area landward of 200 feet from the line of vegetation.
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 17, 2008.
TRD-200803111
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs
General Land Office
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 475-1859