PART 4. SCHOOL LAND BOARD

CHAPTER 155. LAND RESOURCES

SUBCHAPTER A. COASTAL PUBLIC LANDS

31 TAC §§155.1 - 155.5, 155.15

The School Land Board (board) proposes amendments to 31 TAC, Part 4, Chapter 155, relating to Land Resources, Subchapter A, relating to Coastal Public Lands, §155.1 relating to General Provisions, §155.2 relating to Leases, §155.3 relating to Easements, §155.4 related to Permits, §155.5 relating to Registration of Structures and §155.15 relating to Fees.

The intent of this rulemaking is to clarify the rules and avoid duplication by deleting provisions that incorporate specific language from applicable statutes or standard contract provisions. The proposed amendments also incorporate new definitions to address the use of coastal public land for the construction of watercraft storage facilities associated with private residences. The proposed amendments add applicable fees for such uses, provide the board with discretion to negotiate fees for coastal leases for public purposes, and implement a fee freeze for grantees who are 65 or older and using their property for private, residential purposes. Finally, some of the proposed amendments are necessitated by statutory changes made during the 80th Legislature by House Bill (HB) 2819 (Acts 2007, 80th Leg., Ch. 1256, eff. Sept. 1, 2007) which amended Texas Natural Resources Code §§33.002, 33.012, 33.063, and 33.102 - 105 and repealed §33.014 and §33.110(b).

BACKGROUND AND SECTION-BY-SECTION ANALYSIS OF PROPOSED AMENDMENTS

Section 155.1 (relating to General Provisions) includes provisions relating to board policies, the scope of Chapter 155, the timing of board decisions, definitions, and the Coastal Management Program (CMP). The proposed amendments to §155.1 incorporate and amend, as applicable, general policies previously found in §§155.2(c)(5) (relating to Leases), 155.2(c)(7) (relating to Leases), 155.3(d) (relating to Easements), and 155.15(b)(2)(I) (relating to Fees), as these policies are general in nature and apply to Chapter 155 in its entirety. Amendments to these policies incorporate statutory changes made by HB 2819, clarify original language, or change language to conform the policy to Chapter 155 in its entirety. Specifically, the proposed amendments to §155.1(a) include policies restricting rights in the surface estate of coastal public lands from unduly preventing or interfering with the board's management or administration of coastal public lands or the board's authority to grant other rights to coastal public land; authorizing the GLO to inspect any structure located on coastal public land at any time; requiring grantees to provide a coastal boundary survey and field notes in conjunction with shoreline alteration projects, as indicated by Texas Natural Resources Code §33.136; and authorizing the board to waive the requirements of any rule or fee in Chapter 155 if such action would be in the public's best interest, as indicated by Texas Natural Resources Code §32.061 and §32.062.

The proposed amendments to §155.1 add language authorizing the board to grant an interest in coastal public lands for any purpose that the board determines is in the best interest of the state, in accordance with changes made to Texas Natural Resources Code §33.103 by HB 2819. Finally, the proposed amendments to §155.1 expand the definition section by incorporating all applicable definitions previously included in §155.15 (relating to Fees) in order to have one major definition section, which will provide clarity for the public. Where a single term had two separate definitions, the definitions were combined or modified so that one definition applied to the entire Chapter. The proposed amendments also add new definitions for the terms boathouse, boatlift, boat-skid, boat slip, coastal natural resource area, dilapidated or derelict structure, personal watercraft, oversized personal watercraft slip, personal watercraft slip, riprap, sewage, watercraft, and watercraft storage facility. Other definitions have been amended to clarify meaning and assist the public in understanding the rules. The proposed amendments also add a new §155.1(f) regarding the requirement of grantees to submit an application to the GLO in order to obtain a lease, easement, or permit for the use of coastal public land, as indicated by Texas Natural Resources Code §33.101 and §33.102. Finally, conforming numbering and lettering changes and adjustments required for the consistent use of abbreviations have been made.

Section 155.2 (relating to Leases) includes provisions related to definitions, application requirements, lease conditions, and renewal and termination of leases. The proposed amendments clarify these provisions and incorporate a requirement to provide an e-mail address, if available, on a lease application. The proposed amendments also delete provisions that are included as standard provisions in all lease agreements, and, as mentioned previously, delete §155.2(c)(5) and §155.2(c)(7) because those provisions are more appropriately modified to apply to all interests in coastal public land and therefore should be included in §155.1 (relating to General Provisions). Finally, conforming numbering and lettering changes and adjustments required for the consistent use of abbreviations have been made.

Section 155.3 (relating to Easements) includes provisions related to the granting of easements in coastal public land, criteria for the granting of such easements, and mitigation. The proposed amendments delete §155.3(d) because the proposed amendments now incorporate this information in §155.1(f) (relating to General Provisions). This deletion is consistent with current procedures and incorporates amendments made to Texas Natural Resources Code §33.104 by HB 2819. The contents of coastal easement applications may be adequately addressed by GLO operating procedures. The proposed amendments also add references to watercraft storage facilities in what is now §155.3(f)(4) in order to conform the rules to current board policies. A new §155.3(f)(4)(d) has been added to clarify that a littoral owner of property used for a private residence may, in certain limited instances, construct additional watercraft storage facilities on coastal public land. The proposed amendments delete §155.3(j)(1) - (m)(2) because these provisions are standard easement terms in all easements. Finally, conforming numbering and lettering changes, minor clarification changes, and adjustments required for the consistent use of abbreviations have been made.

Section 155.4 (relating to Permits) includes provisions relating to the issuance of permits for the use of previously unauthorized structures (cabins) on coastal public land. Proposed changes made to §155.4(c), (d) and (g) delete provisions that incorporate certain statutory requirements found in Chapter 33, Texas Natural Resources Code in order to avoid duplication of the statutes. The proposed amendments also delete §155.4(i), (j), and (n) because these conditions are standard in all permits. Finally, conforming numbering and lettering changes and adjustments required for the consistent use of abbreviations have been made.

Section 155.5 (relating to Registration of Structures) addresses the requirements for the registration of structures that may be constructed on coastal public land without prior approval from the board, in accordance with Texas Natural Resources Code §33.115. The proposed amendments to §155.5(e)(5) add references to boathouses, boat-skids, boat slips, and personal watercraft slips in order to clearly define standards that allow for the registration of piers and associated appurtenances. Finally, adjustments required for the consistent use of abbreviations have been made.

Section 155.15 (relating to Fees) addresses general provisions related to fees for the use of coastal public land, definitions, the fees assessed for the use of coastal public land, and implementation procedures. As mentioned previously, the proposed amendments relocate all applicable definitions from §155.15 to §155.1 (relating to General Provisions) in order to have one comprehensive definition section, which will provide clarity for the public. The proposed amendments delete limitations in §155.15(b)(2)(A) and clarify the board's authority to negotiate fees for coastal leases granted for public purposes in accordance with changes made to Texas Natural Resources Code §33.105 in HB 2819. The proposed amendments also amend §155.15(b)(2)(D) to incorporate fees for additional boatlifts, boathouses, and oversized personal watercraft slips related to a private residence in an effort to provide the public with a more comprehensive fee policy concerning watercraft storage facilities at private residences and to incorporate amendments to new §155.3(f)(4)(d). Although the board has historically reviewed on a case-by-case coastal easements for the construction of additional boatlifts, boathouses, and oversized personal watercraft slips related to a private residence on coastal public land, requests for additional structures have increased dramatically in recent years. The proposed amendments to §155.15(b)(2)(D) will provide clarity for the board and the public regarding the ability of certain grantees to construct additional watercraft storage facilities on coastal public land. Before granting authority beyond what is authorized by new §155.3(f)(4)(C) (relating to Easements), the board may weigh factors such as the location, density, and environmental health of the area, as specified in new §155.3(f)(4)(A) and (B) (relating to Easements). The proposed amendments also delete language in §155.15 relating to the board's authority to reduce or waive fees if such action would be in the best interest of the public, as this provision was amended and relocated in §155.1 (relating to General Provisions), as described above. The proposed amendments also add a new §155.15(b)(10), which prohibits the board from increasing coastal easement fees related to a private residence when the grantee reaches the age of 65 and applies to the GLO for such a freeze, unless the area of encumbered state land increases or the use of the coastal public land changes. Finally, conforming numbering and lettering changes and adjustments required for the consistent use of abbreviations have been made.

FISCAL AND EMPLOYMENT IMPACTS

Mr. Rene Truan, Deputy Commissioner for the GLO's Professional Services 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 additional cost to state government as a result of enforcing or administering the amended sections. Enforcement and administration of the proposed amendments to §155.15 could cause either an increase or decrease in state revenue, as the board will be authorized to negotiate fees for the public use of coastal public land, implement new fees for the construction of certain additional watercraft storage facilities related to a private residence, and freeze certain coastal easement fees for grantees aged 65 or older who are using their property for a private residence.

Mr. Truan 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 local governments as a result of enforcing or administering the amended sections.

Mr. Truan has also determined that for each year of the first five years the amended sections as proposed are in effect there will be no increase in economic costs to small business for compliance, as the fee amendments apply only to coastal leases and coastal easements for the construction of watercraft storage facilities related to a private residence.

The board has determined that the proposed rulemaking will have no adverse local employment impact that requires an impact statement pursuant to Texas Government Code §2001.022.

PUBLIC BENEFIT

Mr. Truan has determined that the public will benefit from the proposed amendments because the GLO will be able to administer the coastal public land program more efficiently, providing the public more certainty and clarity in the process. The public will benefit from the reduction in the number and length of the Chapter 155 rules, and will be able to avoid duplicitous requirements previously found in Chapter 33, Texas Natural Resources Code, 31 TAC Chapter 155, GLO policies, and contracts. Members of the public who use their property for a private residence will benefit from the proposed rules because they are now clearly authorized by the rules to apply for an easement to construct certain additional watercraft storage facilities on coastal public land. The addition of a new fee for the construction of certain additional watercraft storage facilities is required to compensate the state for this additional impact to coastal public land, and the general public will benefit from the balance provided by the fee. Entities desiring to obtain a public use coastal lease will benefit because restrictions on the entities who could previously apply for such a lease have been removed. The change in fees for such leases to be negotiable with the board allows both the public and the board to weigh and consider the public use being implemented and charge a lesser or higher amount, as appropriate. Finally, persons aged 65 and older who are using their property for a private residence will benefit from the proposed amendments because they will be able to apply for a rate freeze as long as they do not increase the amount of encumbered state land or change the use of the coastal public land.

ENVIRONMENTAL REGULATORY ANALYSIS

The board 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, 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 proposed amendments to Chapter 155 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 §§33.101 - 33.136 relating to the board's ability to grant rights in coastal public land.

TAKINGS IMPACT ASSESSMENT

The board has evaluated the proposed rulemaking in accordance with Texas Government Code §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines to determine whether a detailed takings impact assessment is required. The board has determined that the proposed rulemaking does 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 board has determined that the proposed rulemaking 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. The board has determined that the proposed rulemaking will not result in a taking of private property and that there are no adverse impacts on private real property interests inasmuch as the property subject to the proposed amendments is owned by the state.

CONSISTENCY WITH CMP

The proposed rulemaking is subject to the CMP, 31 TAC §505.11(a)(1)(E) - (I) and §505.11(c), relating to the Actions and Rules Subject to the CMP. The board 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 §501.12 (relating to Goals) and §501.24 (relating to Policies for Construction of Waterfront Facilities and Other Structures on Submerged Lands). Because all requests for the use of coastal public land must continue to meet the same criteria for board approval, the board 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 new rules during the comment period.

PUBLIC COMMENT REQUEST

To comment on the proposed rulemaking or its consistency with the CMP goals and policies, please send a written comment to Mr. Walter Talley, Texas Register Liaison, Texas General Land Office, P.O. Box 12873, Austin, TX 78711, facsimile number (512) 463-6311 or email to walter.talley@glo.state.tx.us. Written comments must be received no later than 5:00 p.m., thirty (30) days from the date of publication of this proposal.

STATUTORY AUTHORITY

The amendments are proposed under the Texas Natural Resources Code §§33.101 - 33.136, relating to the board's ability to grant rights in coastal public land, and Texas Natural Resources Code §33.064, providing that the board may adopt procedural and substantive rules which it considers necessary to administer, implement and enforce Chapter 33, Texas Natural Resources Code.

Texas Natural Resources Code §§33.101 - 33.136 are affected by the proposed amendments.

§155.1.General Provisions.

(a) Policy. The surface estate in the coastal public lands of this state constitutes an important and valuable asset dedicated to the permanent school fund and to all people of Texas. Such estate shall be managed as follows.

(1) - (8) (No change.)

(9) Rights to use the surface estate of coastal public lands shall not unduly prevent or interfere in any way with the board's management or administration of coastal public lands or the board's authority to grant other rights to coastal public land.

(10) The General Land Office (GLO), may at any time, inspect any structure located on coastal public land.

(11) If shoreline alteration is proposed, a coastal boundary survey, as defined in Texas Natural Resources Code §33.136, and field notes shall be required.

(12) The board may modify or waive the requirements of any rule or fee set forth herein if such action would be in the public's best interest as determined by the board.

(b) Scope of rules. These rules set forth the practice and procedure for administration by the board in granting a lease, easement, permit, and the registration of a structure on coastal public lands. All grants of interest are subject to these rules and regulations. The board may grant the following interest in coastal public lands for the indicated purposes:

(1) - (3) (No change.)

(4) channel easements to the holder of any surface or mineral interests in coastal public lands, for purposes necessary or appropriate to the use of such interests; and [interests.]

(5) any other interest in coastal public land for any purpose that the board determines is in the best interest of the state.

(c) (No change.)

(d) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Adjacent littoral property--The property that is contiguous to and borders the coastal public land upon which the property interest is sought.

(2) Alignment Bulkheads--Proposed bulkheads which align with an adjacent, preexisting bulkhead, or bulkheads.

(3) Appraised market value of adjacent littoral property--Fair market value of the unimproved adjacent littoral property as determined by the appropriate tax appraisal district.

(4) Basin--A structure used for a commercial or industrial activity that consists of the area of the land encumbered and any fixtures attached thereto. This definition includes the construction and maintenance of marinas, piers, walkways, docks, dolphins, and wharves and any and all dredged area associated therewith.

(5) Basin formula--The amount of encumbered state land multiplied by the appraised market value of the adjacent littoral property multiplied by the submerged land discount multiplied by the return on investment.

(6) [(1)] Board--The School Land Board of Texas.

(7) Boathouse--A garage-like enclosed structure built over water for the purpose of storing watercraft. Boathouses are suitable for long-term storage and may contain lifts, winches, or other ancillary docking mechanisms.

(8) Boatlift--A covered or uncovered boat slip with winch or pulley devices, used for lifting watercraft out of the water; suitable for long-term storage. The covering structure may not enclose the slip.

(9) Boat-skid--A ramp-like device, typically using 2 pieces of wood, used to place watercraft in or remove watercraft from the water.

(10) Boat slip--An encumbered area of water (covered or uncovered but not enclosed), formed by adjacent finger piers or pilings, into which a watercraft is moored or stored. Most suitable for short-term storage.

(11) [(2)] Breakwater--A structure of timber, cement, or other material, either fixed or floating, designed to protect beaches, bay shorelines, and harbor areas from wave action.

(12) [(3)] Bulkhead [and riprap ]--Structures of timber, steel, concrete, rock, or similar substance erected parallel to the shoreline for erosion control purposes.

(13) [(4)] Coastal area--Refers to the geographic area comprising all the counties of Texas having any tidewater shoreline including that portion of the continental bed and waters of the Gulf of Mexico within the jurisdiction of the State of Texas.

(14) Coastal natural resource area--As defined by Texas Natural Resource Code §33.203(1).

(15) [(5)] Coastal public lands--All or any portion of the state-owned submerged lands, the waters overlying those lands, and all state-owned islands in coastal area.

(16) Commercial activity--Activity which is designed to enhance or accommodate a venture associated with a revenue generating activity. This definition excludes industrial activity, but includes residential uses if there is revenue generating activity conducted on the premises.

[(6) Commercial structure--Any structure located on coastal public lands which is used directly for the sale of goods, wares, services on or property of any kind and includes any structure on coastal public lands adjacent to littoral property used commercially when said structure is used in conjunction with adjacent littoral commercial property.]

[(7) Sensitive habitat--An area of submerged or emergent vegetation or reefs.]

(17) [(8)] Commissioner--The commissioner of the GLO. [General Land Office.]

(18) Dilapidated or derelict structure--Any structure which has deteriorated to an unsafe and/or unusable condition due to neglect, misuse, or which has been made inhabitable by vandalism or natural forces, or which or has been abandoned either through neglect or misuse.

(19) Dredged Area--An area that has been made deeper by the removal or relocation of sediments; dredged areas are considered to be structures on state-owned submerged land. When dredged areas are evaluated for permitting purposes, placement of dredged material must be addressed.

(20) [(9)] Dredged material--The sediments that have been removed from a dredged area; initial dredging of an area often produces usable material and maintenance dredging typically produces unconsolidated material that must dry before possible use. [disposal--The deposition of sand, gravel, shell, or other material generated by a dredging activity onto coastal public lands.]

(21) [(10)] Dredging--The moving of soil, sand, gravel, shell or other materials from its natural setting, including propwashing, [setting ] and thereby artificially altering the water depth, e.g., channels, basins, etc.

(22) Encumbered state land--The amount of state coastal public land encumbered by the permitted activity and is expressed in number of square feet.

(23) Evaluation fee--A one-time fee assessed upon the granting of a commercial instrument. In the case of multiple-purpose easement applications, only one evaluation fee will be assessed.

(24) [(11)] Island--Any body of land surrounded by the waters of a salt water lake, bay, inlet, estuary, or inland body of water within the tidewater limits of this state and shall include man-made islands resulting from dredging of other operations. An island may be coastal public land.

(25) [(12)] Jetties and groins--Structures of rock, concrete, steel, or other material built perpendicular to the shoreline and are designed to modify or control sediment movement along a shore.

(26) [(13)] Fill--The placement of [ deposition of soil, sand, gravel, shell, or any other] materials on coastal public lands for the purpose of changing the elevation of a water body or to create emergent land. [ lands.]

(27) Fill area--A structure, excluding riprap, concrete stairs, breakwaters, jetties, and groins that permanently and fully encumbers, and entirely displaces, the water covering the coastal public land. The construction and maintenance of associated bulkheads is considered part of the fill area.

(28) Fill formula--Encumbered state land multiplied by the appraised market value of adjacent littoral property multiplied by the return on investment.

(29) Homeowners association--An association whose individual members, by virtue of holding full and exclusive title to the adjacent littoral property area specifically defined in an easement application, are entitled, as a group, to the privileges of an easement that may be granted by the State of Texas for use of coastal public land.

(30) Industrial activity--A use of coastal public land which involves one or more of the following:

(A) processing, manufacturing, or handling materials or products predominantly from extracted or raw materials,

(B) storage, manufacturing, or materials handling processes that involve flammable or explosive materials, or

(C) storaging, manufacturing, or materials handling processes that involve hazardous or commonly recognized offensive conditions.

(31) [(14)] Littoral owner--The owner or leaseholder of any public or private upland bordered by or contiguous to coastal public lands.

(32) Maintenance dredging--Re-dredging an authorized channel to a previously authorized depth. The same limitations and conditions that applied to the initial dredging will apply to the maintenance dredging.

(33) [(15)] Marina--A combination of docks or piers floating or constructed on pilings, extending onto or over coastal public lands, which is used for purposes of storing or docking boats, watercraft [pleasure crafts], shrimp boats, and similar structures and is available to the public and charges are made for any of its services, and which do not constitute wharves, docks, or piers as hereinafter defined.

(34) Mineral interest holder--Holder of a state mineral lease who plans to dredge on coastal public land outside the state leasehold tract to obtain access to the state leasehold tract.

(35) [(16)] Mitigation sequence--The series of steps which must be taken to prevent or reduce impacts to [if] sensitive habitat while planning or evaluating a project. [areas are adversely affected.]

(36) New dredged area--An excavated area which is not under current permit with the GLO. The new dredged area rate is charged for the first year, and the fee for maintaining the dredged area is charged for each subsequent year of the easement term.

(37) Oversized personal watercraft slip--A personal watercraft slip that exceeds 120 square feet in overall area.

(38) [(17)] Person--Any individual, firm, partnership, association, corporation (public or private, profit or nonprofit), trust, or political subdivision or agency of the state.

(39) Personal watercraft--A small boat or other craft for water transportation or recreation typically made for use/occupancy by no more than two people at one time.

(40) Personal watercraft slip--A small area designed for the docking and/or storage of personal watercraft; includes boat slips and boat skids; limited to a maximum of 120 square feet.

(41) [(18)] Pier and dock--Structures of timber or other material built onto or over coastal public lands which are used for fishing and recreational boating purposes. [ purposes and which do not constitute a wharf or marina as hereinbefore defined.]

(42) Private non-profit use--A private activity which does not contemplate the generation of any revenue.

(43) Public activity--Activity which is performed in the public interest, as defined by the board, and is not designed to enhance or accommodate a profit-making venture, nor is it primarily associated with a revenue generating activity.

(44) Public entity--City, county, state agency, board or commission, or any other political subdivision of the state.

(45) Residential use, Category I--One single-family residential structure per defined lot or parcel of land; both land and improvements are typically under the same ownership.

(46) Residential use, Category II--Multi-family residential units per defined lot or parcel of land; land and individual units may be separately owned; includes uses by condominium developments and homeowners associations acting for and on behalf of owners of a multi-family residential development, but does not include time-share developments or any use that includes commercial activities.

(47) Resource Impact Fee--A one-time fee assessed for proposed projects that impact seagrass, emergent marsh, or oyster reef, for which there is no separate mitigation requirement.

(48) Return on investment--A number used in the basin, fill, and industrial activity formulas that reflects a financial return expectation. The return on investment rate will be set annually by the board and will be effective at the beginning of each fiscal year.

(49) Riprap--hard substrate material placed seaward of the shoreline to reduce wave energy.

(50) [(19)] Seaward--The direction away from the shore and toward the body of water bounded by such shore.

(51) Sensitive habitat--An area of submerged or emergent vegetation or reefs.

(52) Sewage--Refuse liquids or waste (including human waste) matter typically carried off by sewers or stored in septic tanks.

(53) Shoreline stabilization project--Vegetative cover or rip-rap consisting of concrete block, concrete rubble, rock, brick, sack crete or similarly stable material approved by the GLO utilized to control shoreline erosion.

(54) [(20)] Structure--As defined in the Natural Resources Code, §33.004. [Any structure, work, or improvement constructed upon, affixed to, or worked upon coastal public lands, including but not limited to, fixed to or floating piers, wharves, docks, jetties, groins, breakwaters, artificial reefs, fences, posts, retaining walls, levees, ramps, cabins, houses, shelters, landfills, excavations, land canals, channels, and roads.]

(55) [(21)] Submerged lands--As defined in Section 33.004, Texas Natural Resources Code. [Any land extending from the boundary between the lands of the state and littoral owners seaward to the low water mark on any salt water lake, bay, inlet, estuary, or inland water within the tidewater limits, and any land lying beneath such a body of water, but (for the purposes of these rules only) excludes beaches bordering on, and the waters of, the open Gulf of Mexico, and the lands lying beneath such waters.]

(56) Submerged land discount--60% discount used in formulas when the easement is commercial, 70% discount used in formulas when the easement is industrial.

(57) [(22)] Waste and/or garbage--Includes discarded food, refuse, human waste, and unwanted man-made degradable and non-degradable items such as containers, equipment, and other rubbish.

(58) Watercraft--A boat or other craft for water transport or recreation. Included, but not limited to, motorboat, personal watercraft, and sailboat.

(59) Watercraft storage facility--A boathouse, boatlift, boat-skid, boat slip or personal watercraft slip.

(60) [(23)] Wharf--A structure of timber, cement, masonry, earth, or other material built onto or over coastal public lands, so that vessels can receive and discharge cargo, products, goods, any paying passengers, etc. This definition applies only to structures or portions thereof which are directly connected with and used for the loading and unloading of water borne commerce but specifically excludes such structures used only for commercial fishing purposes.

(e) (No change.)

(f) An applicant desiring a lease, easement, or permit in coastal public land must submit an application to the GLO on forms approved by the GLO not less than 90 days prior to the desired approval date. Applicants should present reasons why the lease, easement, or permit should be granted. The GLO may request any additional information it deems necessary.

§155.2.Leases.

(a) (No change.)

(b) Application. Pursuant to [In addition to the requirements set forth in] Section 33.102 of the Texas Natural Resources Code, any person desiring a lease for the use of coastal public land shall at least include the following in the application:

(1) the name, address, [and] telephone number, and email address if available, [number ] of the person desiring the lease; and

(2) (No change.)

(c) General Conditions.

[(1) Lessee shall be subject to all the terms and conditions of their lease.]

(1) [(2)] Lessee shall be subject to all policies, provisions, terms and conditions applying to leased coastal public land by statute or administrative rule.

(2) [(3)] Lessee shall be subject to any additional policies, provisions, and conditions adopted by the board for the benefit of the public.

(3) [(4)] Lessee shall pay to the General Land Office the necessary filing fees and all other fees determined by the board as adequate compensation for the use of coastal public land.

[(5) Lessee shall not unduly prevent or interfere in any way with the management, administration of, or granting of other rights by the board of any coastal public land included within its lease.]

[(6) Lessee shall indemnify the lessor against any and all liability for damages to life, person, or property arising from the lessee's occupation and use of the coastal public land covered under its lease.]

[(7) The Land Office, may at any time, inspect any structure located on leased coastal public land.]

[(8) Lessee shall keep the Land Office informed at all times of the lessee's current telephone number and mailing address.]

[(9) No lease may be assigned without prior written approval of the board.]

(d) Renewals. Renewals of leases will utilize the contract form and adhere to rules and regulations in effect at the time of the renewal.

[(e) Termination. Upon termination of any lease, the lessee shall, at the option of the board remove all of lessee's personal property and all structures constructed or maintained by Lessee and restore the area involved as nearly as practicable to the same condition that existed prior to the placement of any structure thereon within 120 days of the termination date, except as otherwise approved by the commissioner in writing. This obligation of removal and restoration shall survive the expiration of the lease.]

[(1) The board may consent to the premature termination of all or part of a lease under any of the following conditions: ]

[(A) the intended public purpose is terminated by any other governmental agency action that is not related to lessee's action or failure to act;]

[(B) the lessee has satisfied all conditions of the lease prior to the to date of termination, unless otherwise waived by the board; or]

[(C) an emergency due to a change in topography.]

[(2) Failure to comply with any rules, regulations or the terms of the lease may result in the termination of the lease by the board.]

§155.3.Easements.

(a) - (c) (No change.)

[(d) Application. An applicant desiring an easement must submit an application to the General Land Office on forms approved by the General Land Office, not less than 30 days prior to the desired approval date. If shoreline alteration is proposed, a survey plat and field notes may be required. In addition to submitting an application form, applicants are encouraged to present reasons why the easement should be granted. It is the responsibility of the applicant to demonstrate affirmatively that the proposed structure is in the public interest. The board may request any additional information it deems necessary.]

(d) [(e)] Consideration of application.

(1) Unless otherwise authorized by these sections, the board will hold a meeting to evaluate, consider, and hear testimony on an application. Upon receipt of an application and all requested information, the board may issue, deny, or issue with qualifications, an easement contract.

(2) Upon receipt of all necessary application information, the board or the commissioner, as provided by subsection (e) [(f) ] of this section, may issue, deny, or issue with qualifications, an easement contract.

(e) [(f)] The commissioner may approve an easement application without board approval if the application is for any of the following activities but not for commercial/industrial activity and is consistent with the criteria for decision as set forth below in subsection (f) [(g)] of this section;

(1) existing fill and associated bulkhead, riprap, dredged areas, groins, breakwaters, or other similar existing projects;

(2) existing piers, docks, boatlifts, or other similar existing projects;

(3) proposed piers, docks, boatlifts, or other similar projects provided such projects have been determined by the General Land Office (GLO) staff to have minimal unavoidable environmental impacts;

(4) proposed fill and associated riprap or bulkheads provided such fill impacts less than two hundred (200) square feet;

(5) proposed riprap which impacts the minimum amount of coastal public land to prevent erosion;

(6) renewals or assignments of previously approved projects provided the project has not been altered; or

(7) habitat creation not associated with another project on coastal public land.

(f) [(g)] Criteria for decision. Project proposals will be evaluated in accordance with the following factors.

(1) Fill projects for the sole purpose of land reclamation will not be approved; and

(2) Any project that is determined by the board or the commissioner as unsafe or contrary to the established policies of the board and/or the GLO [Land Office] will not be approved.

(3) Adverse impacts to coastal natural resource areas must be avoided to the extent practicable and minimized where unavoidable. Applicants may be required to provide appropriate mitigation, as set forth in subsection (b) of this section, for those impacts which are unavoidable. Where impacts to coastal natural resource areas are minimal, the payment of a resource impact fee may be required in lieu of undertaking a physical mitigation project where such project is not practicable.

(4) Docks, piers, and watercraft storage facilities. [ Docks and piers.]

(A) Piers, docks, and watercraft storage facilities [ Piers and docks] will be limited to the minimum size necessary to serve the purpose of the project and will be constructed in a manner that does not interfere with navigation or other authorized uses.

(B) Piers, docks, and watercraft storage facilities [ Piers and docks] will be designed and constructed in a manner that avoids existing marshes, oyster reefs, seagrass vegetation or shallow water capable of supporting these habitats to the extent practicable. Impacts to sensitive habitat [habitats] that cannot be avoided will be minimized to the extent practicable.

(C) When constructed for private/residential use, only one pier or dock, with normal appurtenances, two watercraft storage facilities (limited to one boathouse), and one additional personal watercraft slip may extend from each defined parcel of littoral property. Piers, docks, and watercraft storage facilities [ A pier or dock] shall extend perpendicular from a point on the shoreline which is not less than ten feet from the adjacent littoral owner's property line, unless such a design would obstruct navigation or would unreasonably interfere with an adjoining littoral property owner's use of the waterfront.

(D) In addition to the authorization granted by subparagraph (C) of this paragraph, the board may, in its discretion, authorize the construction of additional watercraft storage facilities for use in connection with a private residence. Any such authorization must be consistent with subparagraphs (A) and (B) of this paragraph and will be subject to the fee structure outlined in §155.15 of this title (relating to Fees).

(5) Dredged areas.

(A) Propwashing is an unacceptable method of dredging and will not be approved.

(B) Projects shall be limited to the minimum size necessary to serve the project purpose. Joint use of access channels by multiple littoral property owners is preferred and encouraged rather than individual channels.

(C) Extension of piers into deeper water is preferred to the dredging of access channels or basins whenever practical.

(D) A channel or basin should be designed to insure adequate flushing and should prevent the creation of conditions which are likely to cause stagnant water pockets.

(E) The alignment of a channel or canal should make maximum use of a natural or existing channel. Design and alignment should minimize disruption of natural sheetflow, water flow, and drainage systems.

(F) A channel proposed to be dredged through highly productive coastal public lands is discouraged and will be approved only in unusual circumstances.

(G) Dredging should be conducted in a manner that minimizes turbidity and dispersal of dredged material.

(6) Dredged material disposal area.

(A) All dredged material should be placed on and contained within suitable upland sites of relatively low productivity above mean high water and where adverse effects of such disposal are minimized.

(B) Dredge material containing hazardous substances that presents a threat to public health, safety or the environment, shall be disposed of only in compliance with federal, state and local laws and regulations; further

(i) dredge material shall not be disposed of in any place where such disposal would adversely affect municipal water supplies, shellfish beds, fishery areas (including spawning and breeding areas), wildlife, or recreational areas; and

(ii) disposal of dredge material shall be in accordance with §501.14 of this title (relating to Texas Coastal Management Program Policies for Specific Activities and Coastal Natural Resource Areas).

(C) Open water disposal shall comply with subparagraph (B) of this paragraph and shall be considered only if upland alternatives are not available. Any disposal in open waters must be in compliance with all federal, state and local laws and regulations and shall be consistent with the goals and policies of the Texas Coastal Management Program.

(D) Consideration of habitat creation and improvement should be made when environmental damage results.

(7) Jetty, groin, and breakwater.

(A) No new groins will be authorized except under the most compelling circumstances upon request by a city, county, or other public entity for a public purpose.

(B) Plans for construction of a jetty, groin, or breakwater must be analyzed to insure that the structure does not create adverse sediment transportation patterns that induce erosion or undesirable shoaling in adjacent areas.

(C) Existing but unauthorized groins may be authorized to remain in place until such groins are destroyed or damaged in excess of fifty percent under the following conditions:

(i) no significant erosion of adjacent property has occurred or is occurring as a result of the presence of the groin;

(ii) no significant adverse impacts to sensitive habitats have occurred nor are sensitive habitats threatened by the presence of the groin;

(iii) no unnatural accumulation resulting in the deposition of sediments greater than five square feet per linear foot of the affected shoreline; and

(iv) non-compliance with any of the above conditions will be sufficient cause for denial or termination of authorization and for removal of a non-conforming structure.

(v) If a groin causes significant unnatural accumulation but the removal of the groin will cause severe adverse impacts to sensitive natural resources the boundary between state-owned submerged land and the adjacent littoral property must be established by a Licensed State Land Surveyor.

(D) In addition to minimizing adverse physical effects, the owner of a jetty, groin, or breakwater must ensure that the structure does not unduly interfere with public use of submerged land or the shoreline.

(8) Shoreline stabilization projects.

(A) Vegetative cover is the preferred method of shoreline stabilization and shall be used where its use is practical. Impacts to sensitive habitat will be avoided whenever possible and minimized and mitigated when unavoidable.

(B) Riprap is an acceptable method of shoreline stabilization if composed of interlocking brick, rock large enough not to be displaced by storms, or concrete rubble which is free of protruding rebar. Where possible, sloping riprapping should be used rather than a vertical seawall or bulkhead. Riprap material may extend seaward from the shoreline only as far as required to protect the shoreline.

(C) The use of tires, automobile bodies or parts, appliances, trash and other unconsolidated material is not acceptable and shall not be approved.

(D) Except in special circumstances, a bulkhead or seawall should be located no further seaward than the mean of the high water line, and, to the extent practicable, designed so that reflected wave energy does not destroy stable marine bottom or constitute a safety hazard.

(E) An application for the construction of a bulkhead on a significant coastal public marsh or grassflat, where such will lead to the destruction of this resource, will normally be denied. To avoid this, extreme care should be taken as to the location and type of construction planned for bulkheads in a wetland area.

(9) Marinas.

(A) Marinas should be located in areas where the least dredging and maintenance will be required. Plans for a marina should minimize the disruption of currents and the need for excavation of the shore area. Dead end or deep canals without adequate flushing should be avoided.

(B) Each marina shall provide adequate facilities to its users for the reception of waste and/or garbage. Failure to insure that the users of a marina have access to facilities necessary for the proper and lawful disposal of waste and/or garbage on an ongoing basis may subject the easement to termination and the easement holder to any applicable civil and criminal penalties.

(10) Placement [Deposition] of fill.

(A) Placement [Deposition] of fill proposed in marshes and submerged grass bed areas normally will be denied. Consideration will be given to a fill proposal for a water dependent use or public use on relatively unproductive coastal public lands.

(B) A shoreline fill should be designed and located so that significant damage to existing ecological values or natural resources, or alternation of natural currents will not occur.

(C) The perimeter of fills should be provided with vegetation, retaining walls, riprap, or other mechanisms for erosion prevention.

(D) Fill material should be of such quality that it will not cause water quality degradation. Submerged land should not be considered for a sanitary landfill or the disposal of solid waste.

(g) [(h)] Mitigation sequence. An applicant is responsible for identifying practicable alternatives or available sites for a proposed project with the fewest adverse impacts. For projects requiring mitigation for unavoidable adverse impacts to natural resources, review shall be based on the following sequence:

(1) Avoidance. Projects must be designed to avoid critical area impacts to the extent practicable. Critical areas include, but are not limited to, a coastal wetland, an oyster reef, a hard substrate reef, submerged vegetation, or tidal sand or mud flat.

(2) Minimization. Unavoidable impacts shall be minimized to the extent practicable through the use of structural or non-structural modifications.

(3) Mitigation and Compensation. Each project approved without a separate mitigation requirement will be subject to a resource impact fee as set forth in §155.15(b)(6) of this title. [ §155.15(b)(2)(F).]

(h) [(i)] Consideration of application by mineral interest holder. The board will review and consider an application for a channel easement to a mineral interest holder on coastal public lands to insure conformity with the policies, practices, and procedures in these rules and regulations. Environmental recommendations for certain development and production activities will be provided to the mineral interest holder on bay tracts and certain other tracts in the notice of bids booklet published by the GLO. [ General Land Office. ] Updates of these recommendations will be furnished on request. Development activities conforming with these environmental recommendations normally will receive favorable consideration by the GLO. [General Land Office.]

(i) [(j)] Approval criteria. An easement, if granted by the board, will be approved subject to these rules in addition to such terms and conditions as may be prescribed in the contractual agreement. The board may waive a rule at its discretion. All structures on coastal public lands will be subject to inspection at any time by the board or their authorized representatives. Any easement contract will be for a specific purpose. If a change in the contractual agreement is desired, an amendment application must be filed. An applicant, by accepting an easement to occupy or otherwise place a structure on coastal public lands or water surface areas, agrees and consents to comply with the conditions of the contract. [and be bound by the following additional terms and conditions:]

[(1) to keep the commissioner informed at all times of his or her address, and if a corporation, of the address of its principal place of business and the name and address of the officer or agent authorized to receive service of notice;]

[(2) that the allowance of the easement will be subject to the express condition that the rights granted will not unduly prevent or interfere in any way with the management, administration of, or the granting, either prior or subsequent to the easement, of other rights by the board of any part of the area included in the easement;]

[(3) that the structure authorized under contract will be maintained in proper order and will not be allowed to deteriorate to such a degree as to become a hazard or public nuisance;]

[(4) that all of the surface estate of coastal public lands shall be worked, dredged, filled, or used in such a manner as to prevent pollution, and in the event of pollution, the easement holder shall use all reasonable means to recapture all pollutants which have escaped, whether by reason of a sudden and accidental release or any other means. The easement holder shall be responsible for all damage to public and private property which is the result of pollution arising from any use of the easement including, but not limited to, the easement holder's failure to provide adequate facilities for the reception of waste and/or garbage;]

[(5) that the disposal or discharge of any waste or garbage into state waters from any marina, pier, dock, wharf, or any other structure located on coastal public lands is strictly prohibited.]

[(k) Renewals. A request for renewal of an easement shall utilize the contract form, rate schedule, and adhere to rules and regulations in effect at the time the renewal is made. Any person requesting a renewal must submit an application form as required in this rule and must include the easement number and date of expiration of the existing easement.]

[(l) Assignment. Assignment may be made of any interest rights granted in whole or in part subject to the written approval of the commissioner. Any such assignment must be filed in triplicate accompanied by a written request for approval in which the assignee agrees to comply with all rules and regulations contained herein and in the contractual agreement. A fee of $50 payable to the General Land Office must accompany the application for approval of an assignment. No assignment is effective to transfer any rights until approved by the commissioner, the grantee, and the assignee.]

[(m) Termination. Failure to comply with these rules and regulations or the terms and conditions of the easement shall subject the easement to termination by the board.]

[(1) Upon termination of any easement, the grantee will, at the option of the board, within 120 days from said termination, remove all of its personal property and all structures and manmade improvements authorized in the easement contract, provided all monies due have been paid. The grantee shall take whatever measures as are necessary to restore the area involved as nearly as practicable to the same condition that existed prior to placement of any structures thereon, except as otherwise approved in writing by the commissioner.]

[(2) The board may consent to premature termination of all or part of any contractual agreement.]

§155.4.Permits.

(a) Issuance. The board may issue permits authorizing limited continued use of previously unauthorized structures, as defined in subsection (b) of this section, on coastal public lands, where such use is sought by one claiming an interest in any such structure but is not incident to the ownership of littoral property. This section is not intended to limit the authority granted to the commissioner or the board [School Land Board] in the management of the surface estate in coastal public lands, or to be the exclusive means by which the commissioner or board may grant permission for the use of coastal public lands.

(b) (No change.)

(c) Criteria. [Permits granted pursuant to this section shall be subject to the following policies, provisions, and conditions, in addition to those generally applicable to the Act.]

[(1)] The board may not:

[(A) grant any permit authorizing the continued use of any structure located within 1,000 feet of privately owned littoral residential property, without the written consent of the littoral owner;]

(1) [(B)] grant any permit which would be in violation of the public policy of this state as expressed in these sections and regulations;

[(C) grant any permit for any structure not in existence on August 27, 1973;]

(2) [(D)] grant more than one permit per person, immediate family, organization, company, or group; or

(3) [(E)] grant any permit for dilapidated or derelict structures. [A structure is considered "dilapidated" or "derelict" if it is decayed, deteriorated, structurally unsound, fallen into partial ruin, or has been abandoned either through neglect or misuse.] This provision shall not prohibit the issuance of a new contract for a previously abandoned structure, provided that the permit holder agrees to rebuild or relocate the structure within one year of contract issuance.

[(2) A permit authorizing continued use of a previously unauthorized structure on coastal public lands shall be deemed automatically revoked and terminated if the coastal public land where the structure is located is subsequently leased for public purposes or exchanged for littoral property, or if such land is conveyed to a navigation district as provided by law.]

[(3) Every permit shall provide that in the event the terms of the permit are broken, the permit may, at the option of the board, be terminated.]

[(4) Permitted structures may be used only for noncommercial recreational purposes. Acceptance of payment for use of a permitted structure, or for services connected with use of the structure, is expressly prohibited.]

[(d) Nuisance. All structures now existing or which shall be built, for which a permit is required pursuant to this section, have been declared by law to be the property of the state, and any construction, maintenance, or use of such structure except as authorized in this section is declared a nuisance per se and is expressly prohibited.]

(d) [(e)] Interest claim. Any person seeking to obtain an interest in a structure shall apply to the board for a permit. The application shall be accompanied by the appropriate fees, as set forth in §155.15 of this title (relating to Fees), and any documentation requested by the board.

(e) [(f)] Board approval. The board may approve, deny, or approve with qualifications an application for a permit. If an application is approved by the board, the appropriate contract forms and related materials shall be forwarded to the applicant for completion. The board may include in its approval any provisions deemed necessary to protect the state's interest in coastal public lands and the public welfare.

[(g) Term. The board shall set the term of the permit, which shall not exceed five years. No construction or other activities may commence at the site prior to execution of the structure permit by the commissioner of the General Land Office.]

(f) [(h)] Renewal. The board may, at its discretion, renew a permit upon receipt of a renewal request and the required fees from the current permit holder if all previous contractual conditions have been met. The commissioner may approve a permit renewal request without board approval if the request is consistent with the criteria as set forth in subsection (c) of this section, provided that the permit holder has not made or proposed modifications to the permitted structure(s) that constitute major repairs other than a modification that reduces the dimensions of the structure(s). If the commissioner approves a renewal request, the appropriate contract forms and related materials shall be forwarded to the permittee for completion. The commissioner may include in his approval any provisions deemed necessary to protect the state's interest in coastal public lands and the public welfare.

[(i) Relocation. The board may require relocation of any structure permitted under this section if it is determined to be in the best interest of the state. The permit holder shall be provided written notice stating that relocation of the permit is required, and explaining the reasons for relocation. Failure to comply with terms of a relocation notice may be considered grounds for termination of a permit.]

[(j) Transfer of interest. Board approval is required for the transfer of any interest in a permit from a current permit holder to another person. To transfer a permit, the current permit holder shall notify the board in writing of intent to terminate the existing contract, and shall provide the name of a person who seeks to assume responsibility for that site. The prospective permittee shall be forwarded the appropriate forms, and shall submit a completed permit application request and required fees to the board. To accomplish the transfer of interest, the board shall then terminate the original permit and, during the same meeting, issue a new permit for the same site to the person specified by the original permit holder, providing all original contract requirements have been complied with and all fees have been paid.]

(g) [(k)] Major repairs. Any action which alters the square footage of an existing permitted structure shall be considered a major repair and shall require prior approval from the board. The board may approve, deny, or approve with qualifications a request for major repairs to, or for the rebuilding of, a permitted structure. Examples of major repairs include, but are not limited to:

(1) modification or renovation work which alters the dimensions of structures currently in existence;

(2) the addition of any structure to an existing permitted facility;

(3) the relocation of any structure or facility from its permitted location; or

(4) any activity requiring dredging or filling.

(h) [(l)] Minor repairs. Minor repairs may be made to a permitted structure without prior approval of the board. Minor repairs shall include routine repairs to existing docks, piers, and the structure, and other normal maintenance required to maintain a structure in a safe and secure manner but which does not alter the authorized dimensions. Examples of minor repairs include, but are not limited to:

(1) replacement of tin or shingles on roofs, boards on floors, walls, walkways, or decks when the structural dimensions are not increased;

(2) replacement of pilings or other structural members that do not require dredging or filling;

(3) painting and maintenance activities; and

(4) addition of windows, doors, or rails to an existing structure.

(i) [(m)] Abandoned structures. Structures determined by the board to be abandoned may be removed from coastal public lands or permitted to an interested party through a competitive bid process approved by the board. Structures may be considered abandoned if:

(1) no response is received to a notice posted on the structure citing the Act which requires board authorization for the structure, and containing a request that the interest holder contact the General Land Office (GLO) within a specified period of time;

(2) the interest holder in an unpermitted structure fails to complete the permit application process within 60 days after contact with the GLO [General Land Office] has been made; or

(3) all reasonable attempts to contact a permit holder at the last known address have failed.

[(n) Termination. Failure to comply with these rules and regulations shall be justification for termination of the permit by the board. A permit holder shall have 60 days from the date of termination by the board to remove all personal property from the structure provided all required fees have been paid. The board shall have discretionary authority to revise this time limit, to require permittee to remove any or all structures and man-made improvements, or to assess the costs for repair of any damage to state lands and/or for any necessary removal of debris at the permit site. Any personal property remaining at the site after the 60 days, or the prescribed period set by the board, shall become property of the state and may be disposed of at the board's discretion. Structures for which the permit is terminated by the board for cause under this subsection may be removed from coastal public lands or permitted to an interested party through a competitive bid process approved by the board.]

(j) [(o)] Issuance of permits to new permit holders for structures determined to be abandoned or for which the permit was terminated by the board for cause. Structures determined by the board to be abandoned or for which the interest of the previous permit holder was terminated for cause may be permitted to an interested party through a competitive bid process approved by the board in accordance with this subsection.

(1) Nominations of structures for permitting. The board, GLO [General Land Office] staff, or persons seeking to obtain an interest in a specific structure may nominate for permitting a structure determined by the board to be abandoned or for which the interest of the previous permit holder was terminated for cause. Nominated structures will be evaluated by GLO [General Land Office ] coastal leasing staff as to suitability for permitting, including consideration of such factors as location, impacts to natural resources, and condition of the structure. GLO [The General Land Office] staff may recommend relocation or rebuilding of a structure nominated for permitting.

(2) Advertising of availability of nominated structures for permitting. The board will set the terms and conditions upon which nominated structures will be offered for permitting. These terms will be advertised and bids taken.

(3) Competitive bids for permitting of nominated structures. Competitive bids may be received by the board. Anyone who notified the GLO [General Land Office], in writing, of a desire to obtain an interest in a particular nominated structure before the terms are advertised, will be furnished a bid package at least 10 business days prior to the date set for awarding of the permit for a nominated structure. Bid proposals for permits for nominated structures must specify and describe the design of the structure proposed and must be submitted with the prospective bidder's payment of his bid offer for the bonus payment and filing fee.

(4) Permit fees for nominated structures. The appropriate filing fee, bonus payment, new contract issuance fee, and annual fee for nominated structures will be determined as provided by §155.15 of this title (relating to Fees).

(5) Awards. After evaluation of all proposals, including consideration of such factors as the prospective bidder's compliance with the board's structure design guidelines and compliance history relating to structures on coastal public land, the board may award a permit for a nominated structure to the bidder submitting the proposal determined by the board to be in the best interests of the state.

(6) Improvements. Any structure to be constructed in accordance with a permit issued pursuant to this bid process is the property of the State of Texas, as provided in the Texas Natural Resources Code, §33.131.

(k) [(p)] General provisions. Each permit issued by the board or commissioner shall be subject to the following general provisions.

(1) The permit number must be displayed on the structure in block numerals no less than 10 inches high. The numerals must be readily visible from the normal route of access and should be of a color that contrasts with the color of the structure. Decals, paint, or metal numerals may be used.

(2) All structures on coastal public lands shall be subject to inspection at any time by the board or its authorized representatives without prior notice to the permit holder.

(3) All structures shall be maintained in good repair and safe condition, and shall be kept in a clean and sanitary condition acceptable to the state.

(4) No domestic or wild animals of any type shall be permanently released upon state-owned islands. Domestic animals shall be prevented from disturbing nesting birds on state-owned islands.

(5) An applicant, by accepting a permit for a structure on coastal public land, agrees and consents to the following:

(A) to comply with all regulations which the board determines to be necessary and proper for the protection, conservation, and orderly development of coastal public lands;

(B) to indemnify the State of Texas against any and all liability for damage to life, person, or property arising from the permittee's occupation and use of the area covered by the interest granted; and

(C) to keep the commissioner of the GLO [General Land Office] informed at all times of his or her current mailing address and telephone number.

(6) The approval of a structure permit by the board or commissioner grants exclusive rights to the permit holder for the permitted structure only, and does not prevent the board or commissioner from issuing other grants of interest for the same area or implementing specific land management practices at their discretion.

§155.5.Registration of Structures.

(a) Pursuant to Texas Natural Resources Code §33.132, a littoral owner claiming any right in any structure, excluding a fixed or floating pier, which as of August 27, 1973, is situated in whole or in part on coastal public lands, shall have registered with the General Land Office (GLO) the structure on or before January 1, 1974. Any structure not registered by January 1, 1974, shall require an easement or lease.

(b) Pursuant to Texas Natural Resources Code §33.115, any littoral owner desiring to register a pier shall register such pier with the GLO [General Land Office] by submitting a non-refundable registration fee and an executed structure registration. The structure registration shall be on a form provided by the GLO [General Land Office ] and shall contain the following.

(1) - (6) (No change.)

(c) Construction of a pier pursuant to Texas Natural Resources Code §33.115 may commence only upon receipt by the GLO [General Land Office] of the following:

(1) - (3) (No change.)

(d) Any person registering a structure or pier pursuant to this section agrees and consents to comply with and be bound by the following terms and conditions:

(1) to keep the GLO [General Land Office] informed at all times of his or her address;

(2) to maintain the structure or pier in proper condition and not allow it to deteriorate to such a degree as to become a hazard or public nuisance;

(3) to notify the GLO [General Land Office ] upon a change of ownership, or property interest, in the adjacent littoral property within 30 days of such change; and

(4) to permit agents, representatives and employees of the GLO [General Land Office], at all times, to enter into and on a registered structure or pier and adjacent property of the littoral owner for the purpose of inspection of the structure or pier and for any other reasonable purpose necessary to protect coastal public land.

(e) The construction criteria for piers pursuant to Texas Natural Resources Code §33.115 shall include the following:

(1) (No change.)

(2) Appurtenances are limited to those established by the GLO [General Land Office ] as normal appurtenances.

(3) (No change.)

(4) Walkways may not exceed 4 feet in width, however, variances may be granted by the GLO [General Land Office ] upon demonstrated necessity.

(5) Boatlifts, boathouses, boat-skids, boat slips, and personal watercraft slips [Boatlifts] shall not be constructed in waters less than 3 feet Mean High Water.

(6) - (7) (No change.)

(8) Boatlifts, boathouses, boat-skids, boat slips, and personal watercraft slips [Boatlifts] and associated walkways may not exceed 16 feet in width.

(9) Personal watercraft slips or boat-skids [ water-craft (PWC) lifts] (including ramps, platforms) may not exceed 120 square feet in overall area.

(10) Only 1 watercraft storage facility and 1 personal watercraft slip [boatlift plus 1 jet-ski lift] will be allowed per pier.

(f) - (h) (No change.)

§155.15.Fees.

(a) General.

(1) Form of payment. Fees may be paid by cash, check or other legal means acceptable to the commissioner.

(2) Time for payment. Payment is generally required in advance of issuance of permits, leases and other documents and/or delivery of services and/or materials by the General Land Office (GLO).

(3) Dishonor or nonpayment by other means. In the event a fee is not paid due to dishonor, nonpayment, or otherwise, the GLO [General Land Office ] shall have no further obligation to issue permits, leases and other documents and/or provide services and/or materials to the permittee, lessee, or applicant.

(b) Board [School Land Board] fees and charges. The board [School Land Board] is authorized and required under the Natural Resources Code, Chapter 33, to collect the fees and charges set forth in this subsection where applicable.

[(1) Definitions. The following words and terms, when used in this subsection, shall have the following meanings, unless the context clearly indicates otherwise.]

[(A) Adjacent littoral property--The property, specified in the easement application as owned by the easement applicant, that is contiguous to and borders the coastal public land upon which the easement is sought.]

[(B) Alignment Bulkheads--Proposed bulkheads which align with an adjacent, preexisting bulkhead, or bulkheads. ]

[(C) Appraised market value of adjacent littoral property--Fair market value of the unimproved adjacent littoral property as determined by the appropriate tax appraisal district.]

[(D) Basin--A structure used for commercial or industrial activity that consists of the area of the land encumbered and any fixtures attached thereto. This definition includes the construction and maintenance of marinas, piers, walkways, docks, dolphins, and wharves and any and all dredged area associated therewith.]

[(E) Basin formula--The amount of encumbered state land multiplied by the appraised market value of the adjacent littoral property multiplied by the submerged land discount multiplied by the return on investment.]

[(F) Bulkhead--A retaining wall or other structure built on or adjacent to littoral property.]

[(G) Dredged Area--An excavated area, including channels and basins, on coastal public lands. This definition excludes any structure that would be included in the definition of fill area or basin.]

[(H) Commercial activity--Activity which is designed to enhance or accommodate a venture associated with a revenue generating activity. This definition excludes industrial activity, but includes residential uses if there is revenue generating activity conducted on the premises.]

[(I) Encumbered state land--The amount of state coastal public land encumbered by the permitted activity and is expressed in number of square feet.]

[(J) Encumbered open area--That portion of a project in which the design or use of the project impedes public access to coastal public lands and is not otherwise defined as a dredged area or other structure.]

[(K) Evaluation fee--A one-time fee assessed upon the granting of a commercial instrument. In the case of multiple-purpose easement applications, only one evaluation fee will be assessed.]

[(L) Fill area--A structure, excluding riprap, concrete stairs, breakwaters, jetties, and groins that permanently and fully encumbers, and entirely displaces the water covering the coastal public land. This activity includes the construction and maintenance of bulkheads.]

[(M) Fill formula--State land encumbered multiplied by the appraised market value of adjacent littoral property multiplied by the return on investment.]

[(N) Homeowners association--An association whose individual members, by virtue of holding full and exclusive title to the adjacent littoral property area specifically defined in an easement application, are entitled, as a group, to the privileges of an easement that may be granted by the State of Texas for use of adjacent coastal public land.]

[(O) Industrial activity--A use of coastal public land not associated with private activity that facilitates and is ancillary to a manufacturing, processing, or gathering facility.]

[(P) Mineral interest holder--Holder of a state mineral lease who plans to dredge on state-owned coastal lands outside the state leasehold tract to obtain access to the state leasehold tract.]

[(Q) New dredged area--An excavated area which is not under current permit with the General Land Office. The new dredged area rate is charged for the first year, and the fee for maintaining the dredged area is charged for each subsequent year of the easement term.]

[(R) Private non-profit use--A private activity which does not contemplate the generation of any revenue.]

[(S) Public activity--Activity which is performed in the public interest by a public entity or a private non-profit organization, is not designed to enhance or accommodate a profit-making venture, and is not associated with a revenue generating activity.]

[(T) Public entity--City, county, state agency, board or commission, or any other political subdivision of the state. See §155.21 of this title (relating to Application; Nature of Original Lease; Sublease; Termination).]

[(U) Residential use, Category I--One single-family residential structure per defined lot or parcel of land; both land and improvements are typically under the same ownership.]

[(V) Residential use, Category II--Multi-family residential units per defined lot or parcel of land; land and individual units may be separately owned; includes uses by condominium developments and qualified homeowners associations acting for and on behalf of owners of a multi-family residential development, but does not include time-share developments or any use that includes commercial activities.]

[(W) Resource Impact Fee--A one-time fee assessed for proposed projects that impact seagrass, emergent marsh, or oyster reef, for which there is no separate mitigation requirement. ]

[(X) Return on investment--A number used in the basin, fill, and industrial activity formulas that reflects a financial return expectation. The return on investment rate will be set annually by the School Land Board and will be effective at the beginning of each fiscal year.]

[(Y) Shoreline stabilization project--Vegetative cover or rip-rap consisting of concrete block, concrete rubble, rock, brick, sack crete or similar material approved by the General Land Office utilized to control shoreline erosion.]

[(Z) Structure--As defined in the Natural Resources Code, §33.004.]

[(AA) Submerged land discount--60% discount used in formulas when the easement is commercial, 70% discount used in formulas when the easement is industrial.]

[(2)] The board [Coastal fees and charges. The School Land Board] will charge the following coastal lease and coastal easement fees for use of coastal public land, and will charge the following structure registration and permit fees. The board [School Land Board] charge will be based on either the fixed fee schedule or the alternate commercial, industrial, residential, and public formulas as delineated in paragraphs(3) and (4) [subparagraphs (C) and (D) ] of this subsection [paragraph ]. The greater of the fixed fee or formula rate will be charged.

(1) [(A)] Coastal lease charges. The board [School Land Board] may [only] grant coastal leases for public purposes as prescribed by the Natural Resources Code, Sections 33.103(1), 33.105, and 33.109. The filing fee and annual fee shall be negotiable. [to certain entities, as prescribed by the Natural Resources Code, §33.105 and §33.109.]

[(i) Private activity, non-profit, scientific, or educational activity authorized by §155.2(a)(3) and (4) of this title (relating to Leases):]

[(I) filing fee: $25;]

[(II) annual fee: negotiable/$5.00 minimum.]

[(ii) Public activity authorized by §155.2(a)(1) and (2) of this title (relating to Leases):]

[(I) filing fee: $25;]

[(II) annual fee: no charge.]

[(iii) Public activity authorized by §155.2(a)(1) and (b)(4) of this title (relating to Leases):]

[(I) sub-lease processing fee: $50;]

[(II) annual fee: negotiated percentage of the activity's gross annual revenues.]

(2) [(B)] Structure registration fee. Structure registration fee is required for private piers or docks that are 100 feet long or less and 25 feet wide or less and require no dredging or filling, as authorized by the Natural Resources Code, §33.115. Though board [School Land Board] approval is not required for construction, the applicant must register the location of the structure. The registration is valid for the life of the structure:

(A) [(i)] filing fee: $25;

(B) [(ii)] annual fee: no charge;

(C) [(iii)] assignment fee: $25;

(D) [(iv)] amendment fee: $25.

(3) [(C)] Miscellaneous coastal easement fees:

(A) [(i)] assignment fee: $50;

(B) [(ii)] amendment fee: $50;

(C) [(iii)] late payment fee: 10% of past due amount/$25 minimum.

(4) [(D)] Coastal easement [eastment] fees:

(A) [(i)] piers, docks, and watercraft storage facilities: [piers and docks:]

(i) [(I)] residential use, [use : ] Category I:

(I) [(-a-)] filing fee: $25;

(II) [(-b-)] annual fee: $.03 per square foot/$25 minimum;

(III) annual fee for more than one boatlift or boathouse and any oversized personal water craft slip: $250 each;

(ii) [(II)] residential use, [use: ] Category II:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: 75% of fee calculated for same use as a commercial activity/$100 minimum;

(iii) [(III)] commercial:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee: $.20 per square foot/$100 minimum;

(iv) [(IV)] Other, private non-profit use:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: negotiable/$100 minimum.

(B) [(ii)] marinas:

(i) [(I)] Clear Lake:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee: $4.00 per boat slip linear foot;

(ii) [(II)] residential use: Category II:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: 75% of fee calculated for same use as a commercial activity;

(iii) [(III)] other:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee: $3.00 per boat slip linear foot;

(C) [(iii)] wharf:

(i) [(I)] filing fee: $50;

(ii) [(II)] evaluation fee: $50;

(iii) [(III)] annual fee: $.30 per square foot/$100 minimum;

(D) [(iv)] breakwaters, jetties, and groins:

(i) [(I)] residential--Category I:

(I) [(-a-)] filing fee: $25;

(II) [(-b-)] annual fee: $.20 per square foot/$25 minimum;

(ii) [(II)] residential--Category II:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: 75% of fee calculated for same use as a commercial activity/$100 minimum;

(iii) [(III)] commercial activity:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee: $.20 per square foot/$100 minimum;

(E) [(v)] dredged area:

(i) [(I)] mineral interest holder:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee:

(-a-) [(-1-)] first year fee for a new dredged area: $.02 per square foot/$100 minimum;

(-b-) [(-2-)] fee for maintaining a dredged area after first year of easement: $.005 per square foot/$100 minimum;

(ii) [(II)] residential--Category I:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee:

(-a-) [(-1-)] first year fee for a new dredged area: $.03 per square foot/$25 minimum;

(-b-) [(-2-)] fee for maintaining a dredged area after first year of easement: $.005 per square foot/$25 minimum;

(iii) [(III)] residential--Category II:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: 75% of fee calculated for same use as commercial activity/$100 minimum;

(iv) [(IV)] commercial activity:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee:

(-a-) [(-1-)]first year fee for a new dredged area: $.05 per square foot/$100 minimum;

(-b-) [(-2-)] fee for maintaining a dredged area after first year of easement: $.01 per square foot/$100 minimum;

(F) [(vi)] Open encumbered area:

(i) [(I)] residential--Category I:

(I) [(-a-)] filing fee: none;

(II) [(-b-)] annual fee: none;

(ii) [(II)] residential--Category II:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: 75% of fee calculated for same use as commercial activity/$100 minimum;

(iii) [(III)] commercial activity:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee: $.03 per square foot/$100 minimum;

(iv) [(IV)] Other, private non-profit use:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee: negotiable/$100 minimum;

(G) [(vii)] basin: commercial and industrial activity:

(i) [(I)] industrial activity:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: basin formula, industrial activity;

(III) [(-c-)] evaluation fee: $50;

(ii) [(II)] commercial activity:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: basin formula, commercial activity;

(III) [(-c-)] evaluation fee: $50;

(H) [(viii)] fill area: all activity:

(i) [(I)] commercial/industrial:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: $.20 per square foot, $100 minimum, or fill formula;

(III) [(-c-)] evaluation fee: $50;

(ii) [(II)] private activity/public activity:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee:

(-a-) [(-1-)] existing fill (excluding bulkheads) not permitted as of August 15, 1995: $.02 per square foot or $25, whichever is greater;

(-b-) [(-2-)] annual fee for an alignment bulkhead to be constructed or constructed, but not permitted, as of August 15, 1995: $.02 per square foot or $25, whichever is greater;

(III) [(-c-)] annual fee for other: $.10 per square foot or fill formula, whichever is greater/$25 minimum;

(I) [(ix)] Shoreline stabilization project:

(i) [(I)] All activities authorized by §155.1(b)(2)(A) - (C) of this title (relating to General Provisions):

(I) [(-a-)] filing fee: $15;

(II) [(-b-)] annual fee: none.

(ii) [(II)] Others:

(I) [(-a-)] filing fee: $25;

(II) [(-b-)] annual fee: negotiable/$.03 per square foot/$25 minimum;

(J) [(x)] Boat ramps, concrete stairs, concrete slabs:

(i) [(I)] residential--Category I:

(I) [(-a-)] filing fee: $25;

(II) [(-b-)] annual fee: $.03 per square foot/$25 minimum;

(ii) [(II)] residential--Category II:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: 75% of fee calculated for same use as a commercial activity/$100 minimum;

(iii) [(III)] commercial activity:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] evaluation fee: $50;

(III) [(-c-)] annual fee: $.20 per square foot/$100 minimum;

(iv) [(IV)] Other, private non-profit use:

(I) [(-a-)] filing fee: $50;

(II) [(-b-)] annual fee: $100.

(5) [(E)] Structure (cabin) permits:

(A) [(i)] fees:

(i) [(I)] refundable deposit: $200;

(ii) [(II)] annual fee for all structures excluding piers, docks, and walkways will be calculated at $.60 per square foot per year/$175 minimum;

(iii) [(III)] contract renewal: $175;

(iv) [(IV)] new contract issuance or transfer of interest approved by the board: $325;

(v) [(V)] bonus payment for new contract issuance for structure determined by the board to be abandoned or for which the permit was terminated by the board for cause: negotiable/minimum to be determined by the board;

(vi) [(VI)]filing fee for competitive bid proposal for permit for structure determined by the board to be abandoned or for which the permit was terminated by the board for cause: $50;

(vii) [(VII)]late payment fee: 25% of past due amount;

(B) [(ii)] permittee may apply for a continuation of the previous fee if the permit was issued prior to July 18, 1983 (the date of the initial rate increase), and if the annual fee will impose an undue financial hardship on a current permit holder.

(6) [(F)] Resource Impact Fee:

(A) [(i)] Public use piers and residential piers constructed within guidelines: exempt;

(B) [(ii)] All others: $100 plus $1.00 per square foot of impacted area.

(7) [(G)] Term. The term for all coastal leases and coastal easements is negotiable. Board [School Land Board ] approval is required prior to construction.

(8) [(H)] Rental adjustments--all commercial and industrial easements. At every five-year interval in the term of commercial and industrial easements, the rental fee for the easement will be subject to adjustment. The adjustment, if any, will be in accordance with the then current Fee Schedule as adopted by the Board [School Land Board].

[(I) Discretionary authority. The School Land Board may reduce or waive any fee set forth herein if such action would be in the public's best interest as determined by the School Land Board.]

(9) [(J)] Implementation.

(A) [(i)] New residential developments. Upon the application for an easement associated with the development of a multi-unit or single-family residential project, the easement application will be processed and fee determined according to the appropriate commercial activity rate. Upon the sale of an individual residential unit associated with the easement, with sufficient infrastructure in place to convert use of the unit to individual use (and use of associated easement to private activity), the original easement applicant, upon agreement with the commissioner of the GLO [General Land Office ], may pay a $50 conversion fee. The easement fee may then be reduced by the percentage that the sold unit represented to the total number of units associated with the easement. At the time the conversion fee is paid under the provisions herein, the unit will then be considered to be subject to the residential activity rates upon renewal of the easement. For units already sold prior to the effective date of this section, conversion to a residential activity rate will be granted without the payment of the conversion fee.

(B) [(ii)] Additional terms. The commissioner of the GLO [General Land Office] may require, as a condition for the granting of an easement set forth in this section, such additional terms that he feels are necessary to secure performance under any such easement.

(10) Senior fee freeze. Upon application to the GLO and submission of proof of age by a grantee, fees for coastal easements associated with a single family residence will not be increased after the point in time when the littoral property owner (one person in the case of joint ownership) reaches the age of 65, unless the area of encumbered state land increases or there is a change in use of the coastal public land.

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 May 30, 2008.

TRD-200802817

Trace Finley

Deputy Commissioner, Policy and Governmental Affairs, General Land Office

School Land Board

Earliest possible date of adoption: July 13, 2008

For further information, please call: (512) 475-1859

31 TAC §155.6, §155.8

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the School Land Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The School Land Board (board) proposes the repeal of §155.6 relating to Shoreline Alteration Projects and §155.8 relating to Federal, State, and Local Laws and Regulations.

The intent of this rulemaking is to avoid duplication by deleting provisions that incorporate specific language from applicable statutes or standard contract provisions. Section 155.6, relating to Shoreline Alteration Projects, includes provisions related to the requirements for a coastal boundary survey when conducting shoreline alteration projects. The proposed repeal deletes this section in its entirety because the requirement to provide a coastal boundary survey is found in Texas Natural Resources Code §33.136 and the proposed amendment to §155.1, relating to General Provisions.

Section 155.8, relating to Federal, State, and Local Laws and Regulations, addresses the requirement that all grantees comply with all applicable federal, state, and local laws and regulations related to their use of coastal public land. The proposed repeal deletes §155.8 in its entirety to avoid duplication because all contract documents require such compliance.

FISCAL AND EMPLOYMENT IMPACTS

Mr. Rene Truan, Deputy Commissioner for the General Land Office's (GLO) Professional Services Program Area, has determined that for each year of the first five years the repealed sections as proposed are in effect there will be no additional cost to state government as a result of enforcing or administering the repealed sections.

Mr. Truan has determined that for each year of the first five years the repealed sections as proposed are in effect there will be no fiscal implications for local governments as a result of enforcing or administering the repealed sections.

Mr. Truan has also determined that for each year of the first five years the repealed sections as proposed are in effect there will be no increase in economic costs to small business for compliance of the repealed sections.

The board has determined that the proposed rulemaking will have no adverse local employment impact that requires an impact statement pursuant to Texas Government Code §2001.022.

PUBLIC BENEFIT

Mr. Truan has determined that the public will benefit from the proposed repeal because the General Land Office (GLO) will be able to administer the coastal public land program more efficiently, providing the public more certainty and clarity in the process. The public will benefit from the reduction in the number and length of the Chapter 155 rules, and will be able to avoid duplicitous requirements previously found in Chapter 33, Texas Natural Resources Code, 31 TAC Chapter 155, GLO policies, and contracts.

ENVIRONMENTAL REGULATORY ANALYSIS

The board 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, 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 proposed repeal to Chapter 155 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 §§33.101 - 33.136 relating to the board's ability to grant rights in coastal public land.

TAKINGS IMPACT ASSESSMENT

The board has evaluated the proposed rulemaking in accordance with Texas Government Code §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines to determine whether a detailed takings impact assessment is required. The board has determined that the proposed rulemaking does 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 board has determined that the proposed rulemaking 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. The board has determined that the proposed rulemaking will not result in a taking of private property and that there are no adverse impacts on private real property interests inasmuch as the property subject to the proposed amendments is owned by the state.

CONSISTENCY WITH CMP

The proposed rulemaking is subject to the CMP, 31 TAC §505.11(a)(1)(E) - (I) and §505.11(c), relating to the Actions and Rules Subject to the CMP. The board 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 §501.12, relating to Goals, and §501.24, relating to Policies for Construction of Waterfront Facilities and Other Structures on Submerged Lands. Because all requests for the use of coastal public land must continue to meet the same criteria for board approval, the board 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 new rules during the comment period.

PUBLIC COMMENT REQUEST

To comment on the proposed rulemaking or its consistency with the CMP goals and policies, please send a written comment to Mr. Walter Talley, Texas Register Liaison, Texas General Land Office, P.O. Box 12873, Austin, Texas 78711, facsimile number (512) 463-6311 or email to walter.talley@glo.state.tx.us. Written comments must be received no later than 5:00 p.m., thirty (30) days from the date of publication of this proposal.

STATUTORY AUTHORITY

The repeals are proposed under the Texas Natural Resources Code §§33.101 - 33.136, relating to the board's ability to grant rights in coastal public land, and Texas Natural Resources Code §33.064, providing that the board may adopt procedural and substantive rules which it considers necessary to administer, implement and enforce Chapter 33, Texas Natural Resources Code.

Texas Natural Resources Code §§33.101 - 33.136 are affected by the proposed repeals.

§155.6.Shoreline Alteration Projects.

§155.8.Federal, State, and Local Laws and Regulations.

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 May 30, 2008.

TRD-200802818

Trace Finley

Deputy Commissioner, Policy and Governmental Affairs, General Land Office

School Land Board

Earliest possible date of adoption: July 13, 2008

For further information, please call: (512) 475-1859