CHAPTER 15. COASTAL AREA PLANNING
SUBCHAPTER A. MANAGEMENT OF THE BEACH/DUNE SYSTEM
The General Land Office (GLO) adopts new §15.13 concerning Disaster Recovery Orders. The new section is adopted without changes to the proposed text as published in the February 13, 2009, issue of the Texas Register (34 TexReg 967) and will not be republished.
BACKGROUND
The adopted rule provides for the use of temporary standards for dune restoration and structure stabilization and repair after a disaster and procedures to assist local governments in restoring beach access and dune protection during recovery from such an event. The coastal destruction caused by Hurricane Ike in September 2008 demonstrated the need for long-term procedures that can be implemented when certain disaster conditions exist. These procedures will enable local governments and their citizens to better respond to coastal disasters and allow these areas to protect and rebuild in the most efficient and safe manner possible, while still protecting coastal areas and the public's right to use and access the public beach.
The adopted rule applies only to a local government with a local dune protection and beach access plan within a coastal county that has been included in a disaster declaration made by the governor or in which a natural disaster has occurred, as determined by the commissioner. A disaster recovery order issued by the commissioner pursuant to the adopted rule will be effective for a period of two years unless a shorter period of recovery is specified.
Pursuant to a disaster recovery order issued under the adopted rule, local governments may authorize repairs necessary to render a structure habitable or to prevent further damage or to stabilize a residential structure that is subject to collapse or substantial further damage as a result of erosion or undermining. For structures with intact foundations after a disaster, local governments may also authorize enclosed spaces with breakaway or louvered walls at ground level, if such authorization would be consistent with the local dune protection and beach access plan and the National Flood Insurance Program.
The adopted rule outlines the circumstances under which the commissioner may exercise his discretion to provide for a temporary standard that includes a demarcation of the landward boundary of the public beach. The standard, based on a line of constant elevation, would be used in issuing beachfront construction certificates and dune protection permits in locations where the natural line of vegetation has been severely damaged by the disaster that precipitated the recovery order.
Pursuant to a disaster recovery order issued under the adopted rule, a local government may grant authorization for recovery repairs of a residential structure that encroaches or may encroach on the public beach if the structure is eligible under §15.11, relating to Repairs to Certain Houses Located Seaward of the Boundary of the Public Beach, and is not subject to a pending enforcement action. Local governments may also authorize the placement of beach-quality sand and, in certain instances, clay or sandy clay, on a lot if certain conditions are met and only if the placement is necessary to prevent further erosion due to wind and water.
The adopted rule also authorizes local governments to permit persons to construct dunes in an area no more than 30 feet seaward of the post-disaster landward boundary of the public beach under certain conditions. The adopted rule authorizes the use of additional types of materials for restored dunes to provide additional stability for restored dunes and to encourage dune restoration activities by local governments and property owners. In accordance with the Beach/Dune rules, restoration of dunes may not result in increased flooding to the site or adjacent property, aggravate erosion, result in adverse effects to dune hydrology, increase the vulnerability to washouts or blowouts, or interfere with the public's right of access to the beach at normal high tide. The adopted rule allows a local government to defer the review of the dune protection line up to one year from the date of the disaster recovery order rather than 90 days required under §15.3(k).
The adopted rule provides guidelines for the continuation of authorized beach access and dune protection measures, including variances that permit the use of fibercrete within 200 feet of the line of vegetation in an eroding area. For a local government with a fibercrete variance, authorized repairs may include construction underneath, outside, or around the house that includes fibercrete or other materials necessary to restore reasonable access to a house for disabled persons, provided that such access existed prior to the disaster, including a house that has become located on the beach or where there is no dune.
The adopted rule allows a local government to temporarily close beach access points damaged beyond repair or temporarily blocked by emergency shore protection projects to prevent damage to infrastructure without a formal plan amendment with notice to the commissioner. The local government must ensure that the period of limited beach access in that area does not exceed the duration of the disaster recovery order and must submit to the commissioner a timeline for amending the local plan or a remedy to restore access no later than six months prior to the expiration of the disaster recovery order.
The adopted rule also outlines the specific situations that must exist before a local government may authorize repairs to an existing shoreline protection project in order to minimize impacts to adjacent property. The adopted rule prohibits the use of materials such as bulkheads, riprap, concrete, asphalt rubble, building construction materials, non-biodegradable items, sediments containing certain hazardous substances, and sand obtained by scraping or grading dunes or from beaches in eroding areas when making approved repairs or conducting dune restoration activities.
The adopted rule allows the commissioner to require that a local government suspend the authority of a permittee to scrape a beach under a previously issued permit for beach maintenance practices that include scraping of the beach based on a material change in circumstances. The local government may require that a permittee apply for a new permit or certificate for beach maintenance practices with an opportunity for comment by the commissioner.
The adopted rule requires a local government or other governmental entity authorized by law to clean, maintain, and clear debris from the public beach to coordinate with property owners to remove debris from the public beach as soon as possible to minimize the threat of damage to public health, safety, welfare, and property.
Finally, the adopted rule provides for review of permit applications by the GLO and requires local governments to monitor permitted actions, including dune restoration projects. The adopted rule does not create a property right of any kind in a littoral property owner and removal actions may still be commenced against the owner of a structure regardless of whether the structure is eligible for repairs pursuant to the new rule.
PUBLIC COMMENT
The GLO did not receive any comments on the adopted rule or its consistency with the CMP.
REASONED JUSTIFICATION AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
The adopted rule will provide more certainty regarding recovery measures allowed in the wake of a coastal disaster. In addition, property owners and business owners will be able to more efficiently repair structures and protect their property because the new rule provides clear standards by which repairs may be made and dunes may be restored.
In locations where the natural line of vegetation has been severely damaged by the disaster that precipitated the recovery order, the commissioner may provide for a temporary standard that includes a demarcation of the landward boundary of the public beach based on a line of constant elevation. This standard, consistent with provisions of the Open Beaches Act (Texas Natural Resources Code, Chapter 61), connects areas of the beach together where vegetation still exists. In determining the line of constant elevation, the GLO relies on scientific data from the Bureau of Economic Geology at the University of Texas at Austin indicating that dune vegetation is generally not viable below a certain elevation. The temporary standard, when implemented, will provide local governments and the public with a guideline to use when issuing beachfront construction certificates and dune protection permits.
The adopted rule provides additional types of materials for stabilization underneath structures and for restored dunes, providing additional defenses and stability for restored dunes and to encourage dune restoration activities by local governments and property owners. The GLO has determined that when dunes are obliterated, more than one season is generally required before dune vegetation can grow enough to stabilize the replacement dune. Therefore, the adopted rule authorizes the use of clay material to provide strength and integrity to the dune and to stabilize structures until the natural vegetation recovers.
In addition, the adopted rule allows for an additional ten feet for the dune restoration area, provided that the project does not interfere with beach access or result in other adverse effects as listed in §15.13(h)(5). This larger area will facilitate a larger dune, thus providing better protection for property landward of the dune restoration project. Furthermore, recovery of the beach through natural processes will ultimately result in a dune no further seaward than if the normal 20 foot restoration area had been utilized.
The adopted rule also provides certainty for those jurisdictions that have a variance allowing the use of fibercrete and encourages dune restoration activities to provide protection from flooding and erosion. It also allows restoration of access for disabled persons to eligible structures, including the use of fibercrete under the house.
The adopted rule allows a local government to delay reviewing the dune protection line up to a year so that the local government can focus on recovery efforts before undertaking the technical review of the dune protection line, while at the same time implement a time table for the required reevaluation.
The provisions allowing a local government to temporarily close beach access points damaged beyond repair or temporarily blocked by emergency shore protection projects to prevent damage to infrastructure will allow a local government to address threats to public safety in its exercise of its police power. The provision limits the duration of the closure to the recovery period, and requires a timeline for restoration of access or formal amendment to the beach access plan.
Finally, because the damage to the beach/dune system caused by Hurricane Ike and resulting loss to the sediment budget left the beaches and dunes more vulnerable than ever to imprudent practices that do not protect these valuable resources, the rule requires increased scrutiny of beach maintenance practices, including those previously permitted by a local government. The abundance of seaweed in the spring, followed closely by the summer tourist season and the hurricane season necessitates a closer look at any beach maintenance practices in areas subject to a disaster recovery order to ensure that adverse impacts to the beach/dune system are minimized and that beach maintenance practices facilitate dune restoration.
ENVIRONMENTAL REGULATORY ANALYSIS
The GLO has evaluated the adopted rulemaking action in light of the regulatory analysis requirements of Texas Government Code §2001.0225, and determined that the action is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the statute. "Major environmental rule" means a rule, 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 new rule is 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.
CONSISTENCY WITH CMP
The adopted rule is subject to the Coastal Management Program (CMP), 31 TAC §505.11(c), relating to the Actions and Rules subject to the CMP. The GLO has reviewed the adopted rule for consistency with the CMP's goals and policies in accordance with regulations of the Coastal Coordination Council (Council). The applicable goals and policies are found at §501.26, relating to Policies for Construction in the Beach/Dune System and §501.27, relating to Policies for Development in Coastal Hazard Areas.
The adopted rule is consistent with the policy in §501.26 in that the new rule encourages practices including dune restoration and measures other than structural erosion response measures. Although the adopted rule allows repair of certain structures located on the public beach, the practices allowed do not increase the impact to the right of the public to use and access the public beach. An existing erosion response structure that may be repaired under the rule must comply with the standards for shore protection projects found in §501.26(b). Further, the provisions of the adopted rule that allow ground level enclosures are consistent with the policies in §501.27 in that such enclosures must comply with the requirements of the National Flood Insurance Program.
Consequently, the GLO has determined that the adopted rule is consistent with the applicable CMP goals and policies.
STATUTORY AUTHORITY
The new rule is adopted under Texas Natural Resources Code §§61.011(d), 61.015(b) and 63.121, which provide the GLO with the authority to adopt rules: to preserve and enhance the public's right to use and have access to and from Texas's public beaches; to protect the public easement from erosion or reduction caused by development or other activities on adjacent land and beach cleanup and maintenance; for other minimum measures needed to mitigate for adverse effects on access to public beaches and the beach/dune system; for the reasonable exercise of the police power by local governments with respect to the public beaches; for determination of the line of vegetation and structures located near or on the public beach; and to identify and protect critical dune areas. The new section is also adopted pursuant to Texas Water Code §16.321, which provides the GLO with the authority to adopt rules on coastal flood protection.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 20, 2009.
TRD-200901138
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs
General Land Office
Effective date: April 9, 2009
Proposal publication date: February 13, 2009
For further information, please call: (512) 475-1859