Emergency Sections An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing, for no more than 120 days. The emergency action is renewable once for no more than 60 days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 15. Coastal Area Planning Subchapter E. Interim Approval of Local Government Dune Protection and Beach Acess Plans 31 TAC sec.sec.15.70-15.79 The General Land Office adopts on an emergency basis new ssec.15.70-15. 79, concerning the approval of the Nueces County and Cameron County dune protection and beach access plans, the identification and preservation of critical dune areas, and the preservation and enhancement of public beach access in those counties as required by recent amendments to state law. The section is adopted on an emergency basis due to the imminent peril to the public health, safety, and welfare caused by ongoing human activities which, if left unregulated by Nueces County and Cameron County, are likely to alter or destroy critical dune areas, minimize or impair public beach access, and increase the potential for flood damage on the Texas coast. Amendments to the Dune Protection Act and the Open Beaches Act require any local government with dune complexes and public beaches within its jurisdiction to manage development and other land uses in the beach/dune system through issuance of permits and certificates. The geographic scope of this authority generally includes an area extending landward 1,000 feet from the mean high tide line, though in some cases it extends beyond that to the closest public road. The legislation also addresses local government's adoption of beach traffic ordinances and beach user fees. The legislation places the General Land Office in an oversight role and gives local governments new powers to manage dunes and beaches. It requires the General Land Office to promulgate rules that local governments must observe in exercising these new management powers. The General Land Office recently proposed permanent rules at sec.sec.15.1-15.10 (17 TexReg 6417) on management of the beach/dune system. Nueces County and Cameron County have preceded the General Land Office in developing beach/dune system management programs. These counties have worked in close cooperation with the General Land Office and the Attorney General's Office. They have developed interim plans that basically meet the spirit and intent of the Open Beaches Act and Dune Protection Act. Because of the leadership role that Nueces County and Cameron County have played by pursuing early development of beach access and dune protection plans, and because their plans serve the purposes set out by the Texas Legislature, the General Land Office will grant interim approval of the plans. Approval is granted on an interim basis because the plans will require further refinements and may also need revisions to be consistent with the permanent rules. These permanent rules will take effect early in 1993 and require local governments to have permanent plans by June 1, 1993. The General Land Office's approval of the Nueces County and Cameron County plans under this interim rule will therefore expire at midnight on May 31, 1993. Nueces County and Cameron County will then resubmit their interim plans, with changes, if any, for certification under the permanent rules on management of the beach/dune system by that time. The new sections are adopted on an emergency basis under the Natural Resources Code, sec.sec.61.011, 61.015(b), and 63.121 and the Water Code, sec.16. 321, which provides the General Land Office with the authority to identify and protect critical dune areas and to preserve and enhance public beach access. Section 16.321 provides the General Land Office with the authority to adopt rules on coastal flood protection. sec.15.70. Policy. The General Land Office has identified the following policies as a basis for managing and regulating the beach/dune system: (1) to assist coastal citizens and local governments in protecting, preserving, restoring, and enhancing coastal natural resources including barrier islands and peninsulas, mainland areas bordering the Gulf of Mexico, and the floodplains, beaches and dunes located there; (2) to aid coastal landowners in using beachfront property in a manner compatible with preserving public property, conserving the environment, conserving flora and fauna and their habitat, ensuring public safety, and minimizing loss of life and property due to inappropriate coastal development and the destruction of protective coastal natural features; (3) to foster mutual respect between the public and private property owners and assist local governments in managing the Texas coast so that the interests of both the public and private landowners are protected; (4) to promote dune protection and ensure that damage and destruction of dunes and dune vegetation is avoided whenever practicable. If damage cannot be avoided and has been minimized, every effort must be made to repair damaged dunes and their vegetation, to restore dunes and plant indigenous vegetation, and to rehabilitate existing dunes and dune vegetation; (5) to encourage the use of environmentally sound erosion response methods and discourage those methods such as rigid shorefront structures which can have a harmful impact on the environment and public and private property; (6) to aid communities located on barrier islands, peninsulas, and mainland areas bordering the open Gulf of Mexico which are extremely vulnerable to violent storms and flooding by working to reduce flood losses, minimizing any waste of public funds in the federal flood insurance program, and ensuring that the insurance remains available and affordable; (7) to protect the public's right to access, use, and enjoy the public beach and associated facilities and services as established by state common law and statutes. The public has vested property rights in Texas' public beaches, and free use and access on and to the beaches are guaranteed. The Open Beaches Act requires local governments to preserve and enhance access between the beaches and public roads. If an access point must be closed, then it must be replaced with equal or better access. Whenever practicable, local governments should establish new public beach access; (8) to provide coordinated, consistent, responsive, and predictable governmental decision making and permitting processes; (9) to recognize that the beach/dune system contains resources of statewide value and concern, and that local governments are in the best position to manage coastal resources on a daily basis. These rules are designed to provide local governments with the necessary tools for effective coastal management and are regarded as a minimum standard; local governments are encouraged to develop procedures that provide greater protection for the beach/dune system; (10) to educate the public about coastal issues such as dune protection, beach access, erosion, and flood protection, and provide for public participation in the protection of the beach/dune system and in the development and implementation of the Texas Coastal Management Program. sec.15.71. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-Any person applying to a local government for a permit, certificate or preliminary approval of any construction, or development plan. Backdunes-The dunes located landward of the foredune ridge which are usually well vegetated, but may also be unvegetated and migratory. These dunes supply sediment to the beach after the foredunes and the foredune ridge have been destroyed by natural or human activities. Beach access-The right to use and enjoy the public beach including the right of free ingress and egress to and from the public beach. Beach/dune system -The land from the line of mean low tide of the Gulf of Mexico to the landward limit of dune formation. Beachfront construction certificate or certificate-The document issued by a local government that authorizes beachfront construction adjacent to and landward of a public beach, based on the requirements of this subsection; the certificate must include a finding by the local government that the construction will preserve and enhance public access to the public beach as required by the Texas Natural Resources Code, s61.015(c)-h). Beach maintenance -The cleaning or removal of debris from the beach by hand picking, raking, or mechanical means. Beach profile-The shape and elevation of the beach as determined by surveying a cross section of the beach. Beach user fee -A fee collected by a local government in order to provide and maintain beach-related services to enhance access to and safe and healthy use of public beaches by the public. Blowout-A breach in the dunes caused by wind erosion. Coastal and shore protection project-A project designed to slow shoreline erosion or enhance shoreline stabilization, including, but not limited to, erosion response structures, beach nourishment, sediment bypassing, dune creation, and dune revegetation. Commercial facility -Any structure used for producing, manufacturing, distributing, and selling goods or services in commerce including, but not limited to hotels, restaurants, bars, rental operations, and rental properties. Construction-Any building, bulkheading, filling, clearing, excavating, scraping, or substantial alteration of a site or increasing the size of any structure located on the site. Construction includes the removal or alteration of a dune or dune vegetation, clearing or grading a site, placing construction materials on a site, site work extending beyond the limits of the foundation, creation of vehicular or pedestrian trails, and landscape work. Activities such as building canals or channels, and any dredging or disposal of dredged spoil is also considered construction. Coppice mounds -The initial stages of dune growth, formed as sand accumulates on the downwind side of plants and other obstructions on or immediately adjacent to the beach. Critical dune areas-Those portions of the beach/dune system within 1,000 feet of mean high tide of the Gulf of Mexico that contain dunes and dune complexes that protect public roads, public beaches, coastal public lands, and similar property from nuisance, erosion, storm surge, and high wind and waves. Critical dune areas include the dunes that store sand in the beach/dune system to replenish eroding public beaches. Cumulative impact -The impact on beach use and access, on a critical dune area, or an area seaward of the dune protection line which results from the incremental impact of an action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Dune-An emergent mound, hill, or ridge of sand, either bare or vegetated, located on land bordering the waters of the open Gulf of Mexico. Dunes are naturally formed by the windward transport of sediment, but can also be man- made. Natural dunes are usually found adjacent to the uppermost limit of wave action and are marked by an abrupt change in slope landward of the beach. The term includes coppice mounds, foredunes, dunes comprising the foredune ridge, and backdunes. Dune Protection Act-Texas Natural Resources Code, sec.63. 001, et seq. Dune protection and beach access plan or plan-A local government's legally enforceable program, policies, and procedures for protecting dunes and dune vegetation and preserving and enhancing access to and use of public beaches. Dune protection line-A line established by a county commissioners court or the governing body of a municipality for the purpose of preserving sand dunes. Such line will be located no farther than 1,000 feet landward of the mean high tide of the Gulf of Mexico. Dune protection permit or permit-The document issued by a local government to authorize construction in a specified location seaward of a dune protection line or within the critical dune area, as provided in the Texas Natural Resources Code, sec.63.051. Erosion-The wearing away of land or the removal of beach and/or dune material by wave action, tidal currents, wave currents, or wind. Erosion includes, but is not limited to, horizontal recession and scour and can be induced or aggravated by human activities. Erosion response structure-A hard or rigid technique used for shoreline stabilization which includes, but is not limited to, a jetty, retaining wall, groin, breakwater, bulkhead, seawall, riprap, rubble mound, or revetment. FEMA-The United States Federal Emergency Management Agency. This agency administers the National Flood Insurance Program and promulgates the official flood insurance rate maps. Foredunes-The first clearly distinguishable, usually grass-covered, stabilized large dunes encountered landward of the open Gulf of Mexico. On some portions of the Texas Gulf Coast, foredunes may also be large, unvegetated, and unstabilized. Although they may be large and continuous, foredunes are typically hummocky and discontinuous and are often interrupted by breaks and washover channels. Foredunes offer the first significant means of dissipating storm- generated wave and current energy issuing from the open Gulf of Mexico. Because various heights and configurations of dunes may perform this function, no standardized physical description applies. Foredunes are distinguishable from surrounding dune types by their relative location and physical appearance. Foredune ridge -The high continuous line of dunes which are usually well vegetated and rise sharply landward of the foredune area but may also rise directly from a flat, wave-cut beach immediately after a storm. Indirect impacts -The impacts on beach use and access or on a critical dune area and areas seaward of the dune protection line which are caused by an action and are later in time or farther removed in distance than a direct impact, but are still reasonably foreseeable. Indirect impacts may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Indirect impacts may also include those resulting from actions which may have both beneficial and detrimental effects, even if on the balance the local government believes that the effect will be beneficial. Industrial facilities -Any structure used for generation, storage, treatment, management, transport, or disposal of waste including, but not limited to, solid and hazardous waste management facilities, medical waste management facilities, and landfills. Line of vegetation -The extreme seaward boundary of natural vegetation which spreads continuously inland. The line of vegetation is typically used to determine the landward extent of the public beach. Local government -Nueces County or Cameron County and any branch of county government. Mitigation sequence -The series of steps which must be taken to restore and replace dunes and dune vegetation damaged by permitted or certified activities. National Flood Insurance Act-42 United States Code, sec.sec.4001 et seq. Natural resources -Land, fish, wildlife, insects, biota, air, surface water, groundwater, plants, trees, habitat of flora and fauna, and other such resources. Open Beaches Act-Texas Natural Resources Code, sec.sec.61. 001, et seq. Owner or operator -Any person owning, operating, or responsible for operating commercial or industrial facilities. Permit or certificate condition-A requirement or restriction in a permit or certificate necessary to assure protection of life, natural resources, and property which a permittee satisfies in order to be in compliance with the permit or certificate. Permittee-Any person authorized to act under a permit or a certificate issued by a local government. Person-An individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, state, municipality, commission, political subdivision, or any international or interstate body or any other governmental entity. Practicable-Achievable using the best available technology or technique which provides the protection of public beaches, dunes and dune vegetation as required under this subchapter. In determining what is practicable, local governments shall consider the effectiveness, scientific feasibility, and commercial availability of the technology or technique. Local governments shall also consider the cost of the technology or technique as it relates to the scope of the project. Public beach-Any beach that extends inland from the line of mean low tide to the natural line of vegetation bordering on the seaward shore of the Gulf of Mexico, or such larger contiguous area, to which the public has acquired a right of use or easement to or over by prescription, dedication, or estoppel, or has retained a right by virtue of continuous right in the public since time immemorial as recognized by law or custom. A beach that is not accessible by a public road or ferry as provided in the Natural Resources Code, sec.61.021, is not a "public beach" for as long as the condition exists. Recreational vehicle -A dune buggy, marsh buggy, motorcycle, minibike, trail bike, jeep, or any other mechanized or humanly propelled vehicle being used for recreational purposes. Sand budget-The amount of all sources of sediment, sediment traps, and transport of sediment within a defined area. From the sand budget, it is possible to determine whether sediment gains and losses are in balance. Seaward of a dune protection line-The area between a dune protection line and the line of mean high tide. Structure-Includes, without limitation, any building or combination of related components constructed in an ordered scheme that constitutes a work or improvement constructed on or affixed to land. Variance-Any grant or approval issued by a local government not conforming to the rules of the FEMA. Washover areas -Low areas that channel storm tides across barrier islands and peninsulas into bay areas. Washovers may be found in abandoned tidal channels or where foredunes are poorly developed or weakened due to storm tides and wind erosion. sec.15.72. Administration. (a) Approval of Nueces County and Cameron County plans. This rule applies only to those areas regulated under the Nueces County and Cameron County dune protection and beach access plans. In this rule the General Land Office is approving the Nueces County dune protection and beach access plan, adopted by order of the Nueces County Commissioners' Court on March 25, 1992, and the Cameron County dune protection and beach access plan, adopted by order of the Cameron County Commissioners' Court on August 3, 1992. Approval under this section will expire at midnight on May 31, 1993, and both the Nueces County and Cameron County plans will be subject to revision in accordance with the Management of the Beach/Dune System rules to be adopted by the General Land Office. The revised plans must be submitted to the General Land Office by June 1, 1993, as required by the Management of the Beach/Dune System rules. (b) Integration of dune protection and beach access programs. The Dune Protection Act and the Open Beaches Act require certain local governments to adopt and implement programs for the preservation of dunes and the preservation and enhancement of use of and access to public beaches. These Acts provide for regulation of generally the same activities and the same geographic areas, and their requirements are scientifically and legally related. Local governments required to adopt dune protection and beach access programs shall integrate them into a single plan consisting of procedural and substantive requirements for management of the beach/dune system within their jurisdiction. Such plans shall be consistent with the requirements of the Open Beaches Act, the Dune Protection Act, and this subchapter and each shall, whenever possible, incorporate the local government's ordinary land use planning procedures. (c) Dune protection lines and critical dune areas. The commissioner of the General Land Office, as trustee of the public land of Texas, has the responsibility to identify and protect Texas' critical dune areas that are essential to the protection of coastal public land, public roads, public beaches, and other public resources. Local governments have the responsibility to establish dune protection lines for the purpose of preserving sand dunes within their jurisdiction. The Dune Protection Act, sec.63.121 and sec.63.012 respectively limit the geographic scope of critical dune areas and the location of the dune protection line to that portion of the beach within 1,000 feet of mean high tide of the Gulf of Mexico. (d) Beachfront construction certification areas. The General Land Office, in conjunction with the Attorney General's office, has the responsibility to protect the public's right to use and access the public beach and to provide standards to the local governments certifying construction on land adjacent to the open Gulf of Mexico consistent with such public rights. The Open Beaches Act, sec.61.011(d)(6) limits the geographic scope of the beachfront construction certification area to the land adjacent to and landward of public beaches and lying in the area either up to the first public road or the area up to 1,000 feet of mean high tide, whichever distance is greater. (e) Establishment of dune protection lines. Local governments shall establish dune protection lines which preserve, at a minimum, the dunes within the critical dune areas as defined in this subchapter. Local governments shall notify the General Land Office of the establishment of dune protection lines and any subsequent change in a line. Upon notification of the establishment or change in the location of the dune protection line, the General Land Office shall review the location of the line. If the General Land Office is satisfied that all critical dune areas are seaward of the dune protection line, the General Land Office will notify the local government of this finding in writing. If the local government does not locate the dune protection line landward of critical dune areas, the General Land Office will assist and advise the local government in adjusting the line. Local governments are required to file a map and description of their dune protection lines with the clerk of the county or municipality establishing the line and with the General Land Office. (f) Notice of establishment of a dune protection line. Local governments shall provide notice of a public hearing to consider establishing a dune protection line by publishing such notice at least three times in the newspaper with the largest circulation in the county. The notice shall be published not less that one week nor more than three weeks before the date of the hearing. Notice shall be given to the General Land Office not less than one week nor more than three weeks before the hearing. (g) Local government authority. Local governments shall include in the plans submitted to the General Land Office and the Attorney General's office all policies and ordinances which demonstrate the authority of the local government to implement and enforce the plan in a manner consistent with the requirements of this subchapter. Local government plans shall also demonstrate the coordination, on the local level, of the dune protection, beach access, erosion response, and flood protection programs. Local governments shall integrate these programs into one plan. The General Land Office will provide written guidance on the form and content of plans upon written request by a local government. (h) Submission of local government plans to state agencies. Local governments shall submit dune protection and beach access plans to the General Land Office for review, comment, and certification as to compliance with the policies and rules of this subchapter and to the Attorney General's office for review and comment. The local government's governing body must formally approve the plan prior to submission to the state agencies. The General Land Office shall either grant or deny certification of a local government's proposed dune protection and beach access plan within 60 days of receipt of the plan. In the event of denial, the General Land Office shall send the proposed plan back to the local government with a statement of specific objections and the reasons for denial, along with suggested modifications. On receipt, the local government shall revise and resubmit the plan for state agency review as provided in this section. The General Land Office shall grant or deny certification of a local government's revised plan within 60 days of receipt of the plan. The General Land Office's certification of local government plans shall be by adoption into the rules authorized under the Texas Natural Resources Code, sec.61.011. (i) Areas exempt from local government plans. Local government dune protection and beach access plans shall not include the following areas, which are exempt from regulation by local governments: (1) lands owned by the federal government, unless federal law provides otherwise; (2) state parks, wildlife refuges, or other areas owned by the state for conservation purposes; (3) areas not accessible by public road or common carrier ferry for as long as that condition exists. (j) State-owned land not exempt from local government plans. Local government plans shall apply to all state-owned land other than parks and refuges subject to the provisions of the Natural Resources Code, sec.sec.31.161, et seq. (k) Acts prohibited without a dune protection permit or beach access certificate. An activity requiring a dune protection permit will typically also require a beachfront construction certificate and vice versa. Local governments shall, whenever possible, issue permits and certificates concurrently. (1) Acts prohibited without a dune protection permit. Unless a dune protection permit is properly issued by Nueces County or Cameron County authorizing the conduct, no person shall: (A) damage, destroy, or remove a sand dune or a portion of a sand dune seaward of a dune protection line or within a critical dune area; or (B) kill, destroy, or remove in any manner any vegetation growing on a sand dune seaward of a dune protection line or within a critical dune area. (2) Activities exempt from permit requirements. Pursuant to the Texas Natural Resources Code, sec.63. 052, the following activities are exempt from the requirement for a dune protection permit, but are subject to the requirements of the Open Beaches Act and the rules promulgated under the Open Beaches Act: (A) production of oil and gas and reasonable and necessary activities directly related to that production; (B) grazing livestock and reasonable and necessary activities directly related to grazing; and (C) private recreational activities of the person owning the land and the social guests of the owner. Private recreational activities include, but are not limited to, hiking, sunbathing, and camping for less than 21 days. Operation of recreational vehicles is not exempt. (3) Acts prohibited without a beachfront construction certificate. No person shall cause, engage in, or allow construction in Nueces County or Cameron County landward of a public beach and within 1,000 feet of mean high tide or up to the first public road, whichever distance is greater, in a manner that affects or may affect public access to and use of the public beach unless the construction is properly certified by the appropriate county as consistent with this subchapter and the Open Beaches Act. (4) Permit and certificate application requirements. Nueces County and Cameron County shall require that all permit and certificate applicants fully disclose in the application all items and information necessary for the local government to determine whether it should grant or deny a permit or certificate. Nueces County and Cameron County may require more information, but they shall require that applicants for dune protection permits and beachfront construction certificates provide, at a minimum, the following items and information: (A) the name, address, phone number, and, if applicable, fax number of the applicant; (B) a detailed description of the proposed construction and the construction site including, but not limited to: (i) a legal description of the lot; (ii) the total acreage or square footage of the lot; (iii) the total acreage of the subdivision if the applicant is the owner of the subdivision; (iv) existing and finished elevation range; (v) the number of structures, and, in the case of multiple dwellings, the number of units proposed; (vi) the number of parking spaces; (vii) the approximate percentage of existing and finished open space; (viii) the type of building material and the type of construction (floor plan and view); (ix) blueprints; (x) plats; (xi) site/location maps identifying: (I) the subdivision, block, and lot of the proposed construction; (II) the location of any seawalls or any other structures on the property or within 300 feet of the boundaries of the property; and (III) the location and extent of any reconstructed dunes, dune promotion efforts, fill activities, or any other preexisting human modifications to the beach/dune system; (xii) a description of any existing or proposed walkways or dune walkovers; (xiii) a copy of the community's most recent flood insurance rate map identifying the site of the proposed construction; and (xiv) a grading and layout plan identifying the existing and the finished elevation of the site; (C) photographs of the site which clearly show the current location of the vegetation line, the existing dunes, and all areas on the site which will be affected by the proposed activity; (D) a copy of any topographical survey of the site, if the applicant has had such a survey performed; (E) the name and address of any contractor(s) hired to perform the activity; (F) approximate duration of the construction; (G) alternatives to the proposed activity, site, or methods; (H) a comprehensive mitigation plan which includes a detailed description of the methods which will be used to avoid, minimize, and compensate for any damage to dunes or dune vegetation; (I) a detailed description of the following: (i) the proposed activity's impact on the natural drainage pattern of the site and the adjacent lots; (ii) the cumulative and indirect impact of the proposed activity on public beach use and access; (iii) the cumulative and indirect impact of the proposed activity on the beach/dune system which cannot be avoided should the proposed activity be permitted, including, but not limited to, damage to dune vegetation and alteration of dune size and shape; (iv) any irreversible and irretrievable loss of natural resources which would be caused by the proposed activity; (v) the local historical erosion rate and the activity's impact on coastal erosion; and (vi) the activity's impact on flood protection and protection from storm surge. In addition to the requirements in clauses (i)-(v) of this subparagraph, each beachfront construction application shall describe how the proposed beachfront construction complies with and promotes the local government's beach access policies and requirements, particularly the dune protection and beach access plan's provisions relating to ingress/egress, off-beach parking, and avoidance of reduction in the size of the public beach due to erosion. (5) Preliminary land use planning approvals. Local governments having approval authority of preliminary land use or construction plans such as plats, site plans, beach maintenance programs, and zoning for land uses permitting construction shall determine whether the plan will subsequently require a dune protection permit or a beachfront construction certificate. When considering approval of preliminary land use or construction plans, Nueces County and Cameron County shall consider the following factors: (A) the applicant's ability to mitigate effects on dunes and dune vegetation and effects on beach use and access throughout the construction; (B) the overall purpose of the plan; (C) whether any component of the plan will subsequently require a dune protection permit or a beachfront construction certificate, such as an application for plat approval locating roads or utilities intended to service structures to be located in critical dune areas or seaward of the local government's dune protection line. If any preliminary land use or construction plan will preclude alternatives to locating the structures in the critical dune areas or seaward of the dune protection line, the local government shall not issue approval of the plan without requiring a dune protection permit or beachfront construction certificate. (6) State agency comments. (A) A person proposing to conduct an activity for which a permit or certificate is required shall submit a complete application to the appropriate local government. The local government shall forward the complete application, including any associated materials, to the General Land office. The local government shall forward a copy of all complete beachfront construction certificate applications to the Attorney General's office. The applications, any documents associated with the applications and a copy of the notice of the public hearing must be received by the General Land office and the Attorney General's office no later than 10 working days before the public hearing at which the local government is first scheduled to consider the permit or certificate. Local governments shall not issue a permit or certificate if the General Land Office and the Attorney General's office have not received the applications for those permits and certificates at least 10 working days before the local government is first scheduled to consider the permit or certificate. (B) The General Land Office and the Attorney General's office may submit comments on the proposed activity to the local government. The authority of the General Land Office and the Attorney General's office to enforce any provision of this subchapter is not affected by either state agency failing to comment on the proposed construction. (7) Local government review. When determining whether to approve a proposed activity, a local government shall review and consider: (A) the permit or certificate applications; (B) this subchapter; (C) any other law which affects the activity under review; (D) the comments of the General Land Office and the Attorney General's office; and (E) any other information the local government may consider useful to determine consistency with the local government's dune protection and beach access plan. Local governments shall not issue a dune protection permit or beachfront construction certificate that is inconsistent its plan, this subchapter, and other state, local, and federal laws related to the requirements of the Dune Protection Act and Open Beaches Act. (l) Term and renewal of permits and certificates. (1) A local government's dune protection permits or beachfront construction certificates shall only be valid for one year from the date of issuance. Local governments may renew a dune protection permit and beachfront construction certificate if the permittee provides the information required in the original permit or certificate application supplemented by additional information indicating any changes to the original information provided by the applicant. A permittee must apply for a new permit or a certificate if the permittee changes one or more of the following: the construction methods and materials; the scope or purpose of the construction; the location of any structure; and the access ways to the construction site. Each renewal of a permit and certificate shall be valid for no more than one year. A local government shall issue only two renewals for a permit or certificate. After the local government issues two renewals, the permittee must apply for a new permit or certificate. (2) Any permit or certificate issued by a local government shall be void if inconsistent with the local government's plan or this subchapter or if a material change occurs after the permit or certificate is issued or if a permittee fails to disclose any material fact in the application. (3) A local government shall require that a permittee apply for a new permit or certificate in the event of any material changes. Material changes include human or natural conditions which have impacted dunes, dune vegetation, or beach access and use that either: (A) did not exist at the time the permittee prepared the original permit or certificate application; or (B) which were not considered by the local government making the permitting decision because the permittee failed to provide information regarding the site condition in the original application for a permit or certificate. (4) A permit or certificate automatically terminates in the event the certified construction comes to lie within the boundaries of the public beach by action of storm, wind, water, or other naturally influenced causes. Nothing in the certificate shall be construed to authorize the construction, repair, or maintenance of any construction within the boundaries of the public beach at any point in time. (m) Administrative record. (1) Local governments shall compile and maintain an administrative record which demonstrates the basis for each decision made regarding the issuance of a dune protection permit or beachfront construction certificate. The administrative record shall include copies of the following: (A) all materials the local government received from the applicant as part of or regarding the permit or certificate application; (B) the minutes of the local government's meetings during which the decision to issue the permit or certificate was made; and (C) all comments received by the local government regarding the permit or certificate. (2) Local governments shall keep the administrative record for a minimum of two years from the date of a final decision on a permit or certificate. Local governments shall send a copy of the administrativerecord to the General Land Office or the Attorney General's office upon request by either agency. The record must be received by the appropriate agency no later than 10 working days after the local government receives the request. sec.15.73. Dune Protection Standards. (a) Dune protection required. This section provides the standards local governments shall follow in issuing denying or conditioning dune protection permits. Nueces County and Cameron County shall protect dunes and dune vegetation from damage resulting directly or indirectly from construction in or seaward of a critical dune area or its dune protection line, as cumulatively required by the Dune Protection Act, this subsection, and that local government's dune protection and beach access plan. (b) Findings required for dune protection permit issuance. A local government may approve a permit application only if it find; as a fact, after a full investigation, that the particular conduct proposed will not materially weaken or damage any dune or dune vegetation or reduce the effectiveness of any dune as a mean, of protection from erosion and high wind and water. In making this finding, a local government shall consider: (1) all comments submitted to the local government by the General Land Office and the Attorney General's office; (2) cumulative and indirect impacts of the proposed construction on all dunes and dune vegetation within the beach/dune system; (3) cumulative and indirect impacts of other activities on dunes and dune vegetation located on the proposed construction site; (4) the pre-construction type, height, width, slope, volume and continuity of the dunes, and the pre-construction condition of the dunes and the dune vegetation on the site; (5) the local erosion rate and whether the proposed construction will alter dunes and dune vegetation in a manner that will aggravate erosion; (6) the applicant's mitigation plan for any damage to dunes and dune vegetation and the effectiveness, feasibility, and desirability of any proposed dune reconstruction and revegetation; (7) the impacts on the natural drainage patterns of the site and adjacent property; (8) any significant environmental features of the potentially affected dunes and dune vegetation such as their value and function as floral or faunal habitat for indigenous, migratory, threatened, and endangered species; (9) the visual appearance of the dunes and the dune vegetation; (10) wind and storm patterns including a history of washover patterns; (11) location of the site on the flood insurance rate map; and (12) success rates of dune stabilization projects in the area. (c) Prohibited activities. Nueces County and Cameron County shall not permit or certify the following actions in or seaward of critical dune areas or that local government's dune protection line: (1) activities that are likely to result in the temporary or permanent removal of sand from the portion of the beach/dune system located on or adjacent to the construction site, including: (A) moving sand to a location landward of the critical dune area or dune protection line; and (B) temporarily or permanently moving sand off the site, except for purposes of permitted compensatory mitigation; (2) depositing sand, soil, sediment, or dredged spoil which contains any of the toxic materials listed in volume 40 of the Code of Federal Regulations, Part 302.4, or other contaminants or is of a different mineralogy or grain size than the sediments found on the site; (3) creating dredged spoil disposal sites, such as levees and weirs, without the appropriate local, state, and federal permits; (4) constructing or operating industrial facilities including, but not limited to, solid, hazardous, or medical waste management facilities and landfills not operating in full compliance with all relevant laws and permitting requirements prior to the effective date of this subchapter; (5) operating recreational vehicles; (6) mining dunes; (7) constructing concrete slabs; (8) depositing trash, waste, or debris including inert materials such as concrete, stone, and bricks; (9) constructing cisterns, septic tanks, and septic fields seaward of any structure; and (10) detonating bombs and explosives. (d) Mitigation. The mitigation sequence consists of three steps: avoid, minimize, and compensate for damage to dunes and dune vegetation. Nueces County and Cameron County shall require permit conditions consistent with the mitigation sequence if that local government finds, after the investigation required in subsection (b) of this section, that an activity will result in any damage to dunes or dune vegetation. (1) Avoidance. Local governments shall require permittees to avoid damage to dunes and dune vegetation. Local governments shall not issue a permit allowing any damage to dunes or dune vegetation located in critical dune areas or seaward of the dune protection line unless there is no practicable alternative to the proposed activity, proposed site, or proposed methods for conducting the activity, and the activity will not materially weaken the dunes or dune vegetation. Local governments shall require that permittees undertaking construction in critical dune areas or seaward of a dune protection line use the following avoidance techniques. (A) Routing of nonexempt pipelines. Nonexempt pipelines are any pipelines other than those carrying oil and gas from an exploration and production facility that is exempt from permit requirements under sec.15. 72(k)(2)(A) of this title (relating to Administration). (i) Local governments shall not allow permittees to construct pipelines across barrier islands or within critical dune areas unless there is no practicable alternative. (ii) If a permittee demonstrates that there is no practicable alternative to crossing dune areas, the local government may allow a permittee to construct the pipelines across previously disturbed areas, such as washover channels and blowout areas. Where use of previously disturbed areas is not practicable, the local government shall require the permittee to avoid surface damage and not disturb dune surfaces. (B) Location of construction and beach access. (i) Local governments shall require permittees to locate all construction as far as practicable landward of foredunes. (ii) Local governments shall require permittees to minimize pedestrian traffic on or across dune areas to the greatest extent practicable. (iii) Local governments shall require permittees to route private pedestrian beach access to the public beach through washover channels or over elevated walkways. Nueces County and Cameron County shall route public pedestrian beach access through washover channels or over elevated walkways. All pedestrian access routes and walkways shall be clearly and conspicuously marked with permanent signs by Nueces County and Cameron County if the beach access is public. (iv) Local governments shall require permittees to minimize proliferation of excessive private access by allowing only one joint use access route or walkway to the public beach from any proposed subdivision, multiple dwelling, or commercial facility. In determining the appropriate grouping of access points, the Nueces County and Cameron County shall consider the size and scope of the development. (v) Nueces County and Cameron County and the owners and operators of commercial facilities, subdivisions, and multiple dwellings within Nueces County and Cameron County shall post signs in areas where pedestrian traffic is high, explaining the functions of dunes and the importance of vegetation in preserving dunes. (C) Location of roads. (i) Local governments shall require permittees constructing roads parallel to beaches to locate the roads as far landward as practicable of critical dune areas and shall not allow a permittee to locate such roads seaward of the foredunes. (ii) Wherever practicable, local governments shall require permittees to construct roads leading to beaches in washover channels, blowout areas, or other areas where dune vegetation has already been disturbed; local governments shall require permittees to build such roads so as to follow the natural land contour, and further require that permittees minimize the width of such roads. Where practicable, local governments shall require permittees to locate roads at an angle to the prevailing wind direction. (iii) Wherever practicable, Nueces County and Cameron County shall provide vehicular access to beaches from existing roads or from roads constructed in accordance with clauses (i) and (ii) of this subparagraph. (iv) Local governments shall require a permit condition prohibiting persons from using or parking any motor vehicle on, through, or across dunes in critical dune areas except along designated access ways. (D) Artificial channels. Nueces County and Cameron County shall not permit construction of new artificial channels, including stormwater runoff channels, unless there is no practicable alternative and the channels are located in a manner which avoids erosion and unnecessary construction of additional channels. Local governments shall require that permittees make maximum use of natural or existing drainage patterns, whenever practicable, when locating new channels. However, if new channels are necessary, local governments shall require that permittees direct all runoff inland and not to the open Gulf of Mexico, where practicable. (2) Minimization. Local governments shall require that permittees minimize adverse impacts to dunes and dune vegetation by limiting the degree or magnitude of the action and its implementation. If a permittee for a dune protection permit demonstrates to the local government that damage to dunes or dune vegetation cannot be avoided and the activity will not materially weaken dunes and dune vegetation, the local government may issue a permit allowing the proposed alteration, provided that the permit contains a condition requiring the permittee to minimize damage to dunes or dune vegetation to the greatest extent practicable. (3) Compensation. Local governments shall require that permittees compensate for all damage to dunes and dune vegetation which will occur after the permittee has avoided and minimized such damage to the greatest extent practicable. The local government shall require that permittees compensate for such damage by repairing, rehabilitating, or restoring the affected dunes and dune vegetation. Local governments shall require that the permittee construct repaired, rehabilitated, or restored dunes (of the same volume as the preexisting dunes) and dune vegetation which are superior or equal to the preexisting dunes and dune vegetation in the ability to protect: (A) adjacent public and private property from potential flood damage, nuisance, and erosion; and (B) indigenous, migratory, threatened, and endangered flora and fauna. (4) Off-site compensation. Local governments shall require that a permittee's compensation efforts take place on the construction site unless the permittee demonstrates the following facts to the local government: (A) on-site compensation is not practicable; (B) the off-site compensation will be located as close to the construction site as practicable; (C) the proposed off-site compensation has already achieved a 1:1 ratio of proposed damage to completed, stabilized restoration; and (D) the permittee has notified FEMA of the proposed off-site compensation. (5) Information required for off-site compensation. Local governments shall require permittees provide the following information when proposing off-site compensation: (A) the name, address, phone number, and fax number, if applicable, of the owner of the property where the off-site compensation will be located; (B) the source of sand and the dune vegetation; (C) the date of initiation of the compensation; (D) all information regarding permits and certificates issued for the reconstruction of dunes on the compensation site; (E) all relevant information regarding the success, current status, and stabilization of the dune restoration efforts on the compensation site; and (F) any increase in potential flood damage to the site where the damage to dunes and dune vegetation will occur and to the public and private property adjacent to that site. (6) Compensation for damage to dune vegetation. Local governments shall require that permittees compensate for damage to dune vegetation by planting indigenous vegetation on the affected dunes. Local governments shall encourage permittees to use indigenous vegetation and may allow a permittee to use temporary sand fencing. Local governments shall prohibit a permittee from compensating for damage to dune vegetation by removing existing vegetation from private or state-owned property unless the permittee has received prior written permission from the property owner or the state. Local governments shall require the permittee to provide a copy of the written permission for vegetation removal and to identify the source of any sand and vegetation which will be used to compensate for damage to dunes and dune vegetation in the mitigation plan contained in the permit application. (e) Dune reconstruction standards. Local governments may allow a permittee to reconstruct dunes by vegetative or mechanical means. Local governments shall require that a permittee proposing to reconstruct dunes use the following techniques: (1) reconstruct dunes to approximate the natural dune shape size, elevation, and sediment content in the area; (2) allow for the natural dynamics and migration of dunes; (3) stabilize foredunes reconstructed in washover channels using appropriate methodology for the site; and (4) use discontinuous or continuous temporary sand fences and indigenous plants where appropriate considering the characteristics of the site. (f) Stabilization of critical dune areas. Local governments shall give priority for stabilization to blowouts and sand flats when permitting reconstruction of dunes. Before permitting stabilization of washover channels, local governments shall: (1) assess the overall impact of the project on the beach/dune system; and (2) consider the project's effects on hydrology and drainage. (g) Compensatory mitigation deadline. (1) Initiation of compensation. Local governments shall require permittees to begin compensation for damage to dunes and dune vegetation when the damage first occurs, but in no event shall a permittee fail to begin compensation within 90 days of the permit issuance date. (2) Completion of compensation. Local governments shall require permittees to conduct compensation efforts continuously until the repaired, rehabilitated, and restored dunes and dune vegetation are equal or superior to the pre-existing dunes and dune vegetation. These efforts shall include preservation and maintenance pending completion of compensation. (3) State agency notification of compensation certification. Local governments shall notify the General Land Office after determining that the compensation is complete. No sooner than 30 working days after receipt of notification by the General Land Office the local government shall certify that compensation is complete. The General Land Office may conduct a field inspection to ensure compliance with this subchapter. (4) Violation of compensation deadline. The General Land Office recognizes that the time necessary to restore dunes and dune vegetation varies with factors such as climate, soil moisture, and plant stability. However, in no event shall the permittee fail to achieve compensation, using a 1:1 ratio, within two years after beginning compensation efforts. sec.15.74. Beachfront Construction Standards. (a) Local government certification of beachfront construction. This section provides the standards local governments shall follow in issuing, denying, or conditioning beachfront construction certificates. In general, Nueces County and Cameron County shall not allow diminution of the size of public beaches and shall preserve and enhance public access between public beaches and public roads lying landward. A local government certification consists of an affirmative finding of a local government that the proposed construction does not encroach upon the public beach, nor does it interfere with, or otherwise restrict the public's right to use and access the public beach. (b) Prohibition of certification. Local governments shall not certify beachfront construction that requires a permittee to: (1) reduce the size of the public beach in any manner; or (2) close or otherwise impair any existing public beach access point unless the local government simultaneously provides or requires the permittee to provide equivalent or better public access. (c) Encroachments on public beaches. (1) Prohibition of construction on the public beach. A local government is prohibited from issuing a certificate to any person proposing any construction on the public beach or any construction that encroaches in whole or part on the public beach. This prohibition does not prevent the approval of reconstructed dunes and dune walkovers under a properly issued dune protection permit. Any issuance or approval of a permit, certificate, or any other instrument contrary to this subsection is void. (2) Construction landward of the public beach. Except as provided in subparagraphs (A) and (B) of this paragraph, local governments shall not issue any beachfront construction certificate for construction landward of the public beach that functionally supports or depends on, or is otherwise related to, proposed or existing structures that encroach on the public beach or on state submerged lands, regardless of whether the encroachment is on land that was previously landward of the public beach. (A) A local government may issue a beachfront construction certificate to any person for construction landward of the public beach that functionally supports or depends on, or is otherwise related to, a structure within the public beach that has been damaged less than 50 by a storm or other casualty. The local government shall grant the certificate only upon the condition that the permittee undertake no related construction within the public beach other than that construction necessary for minimum repairs required to maintain the structure, and further that the structure be demolished if the repairs are not completed within one year of the storm or casualty. (B) As a condition to issuing any beachfront construction certificate pursuant to subparagraph (A) of this paragraph allowing construction landward of the public beach, local governments shall require the permittee to remove all structures, erosion response structures, construction and demolition debris, rubble, wreckage, waste, and salvageable material encroaching on the public beach within or seaward of the tract or lot on which construction is proposed. The permittee shall apply for a dune protection permit if the proposed activity will damage dunes or dune vegetation when removing the material encroaching on the public beach. (d) Dedication of new beach access points. (1) A local government shall certify beachfront construction subject to the permittee's dedication of new public beach access or parking areas where a local government finds that requiring the dedication is necessary due to the nature of the permittee's proposed construction. (2) A local government shall require a permittee to dedicate access if it issues a certificate allowing a permittee to conduct activities which will impair beach access in any manner. sec.15.75. Concurrent Dune Protection and Beachfront Construction Standards. (a) Local government application of standards. This section provides the standards local governments shall follow when issuing, denying, or conditioning dune protection permits and beach front construction certificates. This section applies to both. (b) Location of construction. Local governments shall require permittees to locate all construction as far landward as is practicable and shall not allow any construction which aggravates erosion. (c) Prohibition of new erosion response structures. Local governments shall not issue a permit or certificate allowing construction of an erosion response structure. (d) Existing erosion response structures. In no event shall local governments permit or certify maintenance or repair of an existing erosion response structure which will allow a permittee to enlarge or improve the structure. Local governments shall not issue a permit or certificate allowing any person to maintain or repair an existing erosion response structure if the structure is more than 50% damaged, except under the following circumstances: (1) failure to repair the structure will cause unreasonable flood hazard to a public building, public road, public water supply, public sewer system, or other public facility landward of the structure; or (2) failure to repair the structure will cause unreasonable flood hazard to a private dwelling because adjacent erosion response structures will channel flood waters to the private dwelling. (e) Monitoring. The local government may require that a permittee conduct a monitoring program to study the effects of a coastal and shore protection project on the public beach. (f) Construction in flood hazard areas. (1) A local government shall not issue a permit or certificate that does not comply with FEMA's regulations governing construction in flood hazard areas. FEMA prohibits man-made alteration of sand dunes within Zones Vl-30, V, and VE on FEMA's flood insurance rate maps. (2) Nueces County and Cameron County shall inform the General Land Office and the FEMA regional representative in Texas before it issues any variance from FEMA regulations or allows any activity done in variance of FEMA's regulations found in Volume 44 of the Code of Federal Regulations, Parts 59-77. Variances may adversely affect a local government's participation in the National Flood Insurance Program. (g) Construction in eroding areas. Nueces County and Cameron County in areas experiencing erosion shall discourage structures with large areas in contact with the ground, such as swimming pools, decks, and slab foundations. Nueces County and Cameron County shall require that structures built in eroding areas be placed on pilings. Local governments shall not allow a permittee to pave or alter the ground below the first habitable floor; however, loose shell may be used to stabilize driveways. (h) Construction affecting natural drainage patterns. Local governments shall not issue a certificate or permit unless the construction and property design provide for the gradual, dispersed drainage of storm water runoff, such that runoff within the property approximates natural rates, volumes, and direction of flow. Local governments shall require that drain spouts shall be located so as to collect rainwater and distribute it evenly under the structure. Local governments shall require permittees to construct porches, patios, and balconies to allow rainwater to pass through and to ensure that all drainage from the lot shall flow inland away from the beach and foredune area. sec.15.76. Local Government Management of the Public Beach. (a) Standards applicable to local governments. This section provides standards applicable to local government issuance, denial, or conditioning of permits or certificates, as well as all other local government activities relating to management of public beaches. (b) Construction of coastal and shore protection projects. Nueces County and Cameron County shall encourage beach nourishment and sediment bypassing for erosion response management. If the permittee demonstrates that these types of projects are not technically or economically feasible, the local government shall only allow a structure(s) to be protected by the project to be relocated landward in accordance with FEMA regulations as provided in Volume 44 of the Code of Federal Regulations, Parts 59-77. (c) Requirements for beach nourishment projects. Nueces County and Cameron County shall not allow a beach nourishment project unless it finds that: (1) the sediment to be used is of similar grain size, mineralogy, and quality as the existing beach material; (2) the proposed nourishment material does not contain any of the toxic materials listed in Volume 40 of the Code of Federal Regulations, Part 302.4; (3) there are no adverse environmental effects to the property surrounding the area from which the sediment will be taken or the site of the proposed nourishment; and (4) the removal of sediment does not conflict with spawning seasons and migratory movements of estuarine or marine dependent species, or have any other adverse impacts to natural resources. (d) Reconstructed dunes on public beaches. Sand dunes, either naturally created or reconstructed, may aid in the preservation of the common law public beach rights by slowing beach erosion processes. Nueces County and Cameron County shall allow reconstruction of dunes on the public beach only under the following circumstances and conditions. (1) Nueces County and Cameron County shall require persons to locate reconstructed dunes in the area extending no more than 20 feet seaward of the landward boundary of the public beach. Nueces County and Cameron County shall ensure that the 20-foot reconstruction area follows the natural migration of the vegetation line. (2) Nueces County and Cameron County shall not allow any person to reconstruct dunes, even within the 20-foot corridor, if such dunes would restrict or interfere with the public use of the beach at normal high tide. (3) Nueces County and Cameron County shall require persons to reconstruct dunes in a manner which is continuous with any surrounding existing dunes and shall approximate the sediment content, shape, size, elevation, and volume of any existing dunes. (4) Nueces County and Cameron County shall not allow any person to reconstruct dunes using any of the following methods or materials: (A) hard or engineered structures; (B) materials such as bulkheads, riprap, concrete, or asphalt rubble, and building construction materials; (C) fine, silty sediments; (D) sediments containing any of the toxic materials listed in Volume 40 of the Code of Federal Regulations, Part 302.4; and (E) sand obtained by scraping or grading dunes or the beach. (5) Nueces County and Cameron County may allow persons to use the following dune reconstruction methods or materials: (A) piles of sand having similar grain size and mineralogy as the surrounding beach; (B) temporary sand fences conforming to General Land Office guidelines; and (C) organic brushy materials such as used Christmas trees. (6) Nueces County and Cameron County shall protect reconstructed dunes under the same restrictions and requirements as natural dunes under the local government's jurisdiction. All applications submitted to Nueces County or Cameron County for reconstructing dunes on the public beach shall be forwarded to both the General Land Office and the Attorney General's office at least 10 working days prior to the local government's consideration of the permit. Failure of the General Land Office or the Attorney General's office to submit comments on an application for such reconstructed dunes shall not waive, diminish, or otherwise modify the beach access and use rights of the public. (7) Local governments shall not allow a permittee to construct or maintain a private structure on the reconstructed dunes, except for specifically permitted dune walkovers or similar access ways. (e) Dune walkovers. Nueces County and Cameron County shall only allow dune walkovers, including other similar beach access mechanisms, which extend into the public beach under the following circumstances. (1) Local governments shall require that permittees restrict the walkovers, to the greatest extent possible, to the most landward point of the public beach. (2) Local governments shall require that permittees construct the walkovers in a manner that will not interfere with or otherwise restrict public use of the beach at normal high tides. (3) Local governments shall require that permittees immediately relocate walkovers to follow any landward migration of the public beach. (f) Preservation and enhancement of public access. Nueces County and Cameron County shall regulate pedestrian or vehicular beach access, traffic, and parking on the beach only in a manner that preserves or enhances existing public rights of access to and use of the beach. Nueces County and Cameron County shall not impair or close an existing access point or close a public beach to pedestrian or vehicular traffic without prior approval from the General Land Office. (1) Nueces County and Cameron County shall have an adopted, enforceable, written policy prohibiting the local government's abandonment, relinquishment, or conveyance of any right, title, easement, right-of-way, street, path, or other interest that provides existing or potential beach access, unless alternative equivalent or better beach access is first provided by the local government. (2) This provision does not apply to any existing local government traffic regulations enacted before the effective date of this subsection, and the former law is continued in effect until the regulations are amended or changed in whole or in part. Further, this provision does not apply to vehicular traffic regulations enacted for public safety, such as establishing speed limits and pedestrian rights of way. Although exempt from the certification procedure, such vehicular controls must nevertheless be consistent with the Open Beaches Act and these rules. (g) Request for state agency approval of beach access. When requesting approval, a local government shall submit a plan to the General Land Office and the Attorney General's office providing the following information: (1) a current description and map of the entire beach access system within its jurisdiction; (2) the status of beach access demonstrated through evidence such as photographs, surveys, and statistics regarding the number of beach users; (3) a detailed description of the proposed beach access replacing the existing beach access. Such description shall demonstrate the method of providing equivalent or better access to the public beaches; (4) a vehicular control plan, if the local government proposes either new or amended vehicular controls regarding the public beach. The vehicular control plan must include, at a minimum, the following information: (A) an inventory and description of all existing vehicular access ways to and from the beach and existing vehicular use of the beach; (B) all local government ordinances that impose existing vehicular controls; (C) a statement of any short-term or long-range goals for restricting or regulating vehicular access and use; (D) an analysis and statement of how the proposed vehicular controls are consistent or not with state standards in these rules for preserving and enhancing public beach access. If it is determined by the local government or by the state that the vehicular controls are not consistent with state standards, the local government shall prepare a plan for achieving consistency within a period of time to be determined by the General Land Office and attorney general. Such improvement plan shall be a detailed description of the means and methods of upgrading the availability of public parking and access ways, including funding for such improvements; (E) a description of how vehicular management relates to beach construction management, beach user fees, and dune protection within the jurisdiction of the local government. (h) Integration of vehicular control plan and other plans. The vehicular control plan may be a part of a local government's beach access and use plan required under the Texas Natural Resources Code, sec.61.015, any beach user fee plan required under the Texas Natural Resources Code, sec.61.022, and any dune protection program required under the Texas Natural Resources Code, Chapter 63. The General Land Office encourages local governments to combine and integrate these various plans and programs . (i) State agency approval of vehicular control plan. Nueces County and Cameron County shall submit the plan to the General Land Office and the Attorney General's office no later than 90 working days prior to its action. A plan may be approved if the vehicular controls are found to be consistent with the Natural Resources Code and with this subchapter. Prior to final adoption or implementation of a new or amended vehicular control ordinance, the Nueces County and Cameron County shall obtain the state certification of the plan for the vehicular control pursuant to the Open Beaches Act, sec.61.022. (j) Exemption. This provision does not apply to any existing local government traffic regulations enacted before the effective date of this subsection, and the former law is continued in effect until the regulations are amended or changed in whole or in part. Further, this provision does not apply to vehicular traffic regulations enacted for public safety, such as establishing speed limits and pedestrian rights of way. Although exempt from the certification procedure, such vehicular controls must nevertheless be consistent with the Open Beaches Act and these rules. (k) Maintaining the public beach. Nueces County and Cameron County shall prohibit beach maintenance activities unless maintenance activities will not materially weaken dunes or dune vegetation or reduce the protective functions of the dunes. Nueces County and Cameron County shall prohibit beach maintenance activities which will result in the redistribution of sand or which alters the beach profile. The General Land Office encourages the removal of litter and other debris by hand-picking or raking and strongly discourages the use of machines which disturb the natural balance of gains and losses in the sand budget. (1) Prohibitions on signs. Nueces County and Cameron County shall not allow any person to display or allow to be displayed on or adjacent to any public beach any sign, marker, or warning, or make or allow to be made any written or oral communication which states that the public beach is private property or represent in any other manner does not have the right of access to the public beach as guaranteed by this subchapter, the Open Beaches Act, and the common law right of the public. sec.15.77. Beach User Fees. (a) Reciprocity of fees. Nueces County and Cameron County shall coordinate beach user fees across jurisdictional boundaries to the maximum extent possible. (b) Amount of beach user fees. (1) Nueces County and Cameron County shall not impose a fee or charge for the exercise of the public right of access to public beaches. Nueces County and Cameron County may charge beach users a fee in exchange for providing services to beach users in general. Nueces County and Cameron County may only impose a beach user fee if the fee is reasonable taking into account the cost to the local government of providing public services and facilities directly related to the public beach. A reasonable fee is one that recovers the direct and indirect costs of providing and maintaining beach-related services. (2) Beach-related services which enhance access to and safe and healthy use of the public beach include, but are not limited to, services and facilities directly related to the public beach such as vehicular controls, management, and parking (including acquisition and maintenance of off-beach parking and access ways); sanitation and litter control; lifeguarding and lifesaving; beach maintenance; law enforcement; beach nourishment projects; providing public facilities such as restrooms, showers, lockers, equipment rental, and picnic areas; recreational and refreshment facilities; liability insurance; and necessary staff and personnel. Such public facilities and public services shall serve only those areas on or immediately adjacent to the public beach. (3) Nueces County and Cameron County shall not impose a fee which: (A) exceeds the necessary and actual cost of providing public facilities and services; (B) unfairly limits public access to and use of public beaches; (C) is inconsistent with this subsection or the Open Beaches Act; or (D) discriminates on the basis of residence. (c) Beach user fee plan. If Nueces County or Cameron County proposes a new or amended beach user fee, they shall first prepare a plan that includes at minimum the following information: (1) current beach access system within its jurisdiction demonstrated through evidence such as photographs, surveys, and statistics regarding the number of beach users; (2) a description of all existing beach user fees charged by the local government; (3) all local ordinances that authorize the collection of existing beach user fees; (4) an analysis and statement of how the proposed user fee is consistent or not with state standards set forth in this subchapter for preserving and enhancing public beach access; (5) how the beach user fee relates to beachfront construction, vehicular controls, and parking, and dune protection within the jurisdiction of the local government; (6) a statement of any short-term or long-range goals relating to the collection and use of beach user fees. (d) State agency approval of beach user fees. Nueces County and Cameron County shall not impose a beach user fee or increase an existing beach user fee without prior approval from the General Land Office. To receive state approval for initiating or increasing a beach user fee, Nueces County and Cameron County shall submit to the General Land Office and the Attorney General's office the beach user fee plan no later than 90 working days prior to any local government action on the beach user fee. The General Land Office shall certify whether the initiation or increase of a beach user fee is consistent with this subchapter and the Open Beaches Act. Certification of consistency shall be by adoption into the rules authorized by the Open Beaches Act. (e) Beach user fee revenues. Revenues from beach user fees collected by Nueces County and Cameron County may be used only for necessary services and facilities directly related to the public beach. Nueces County and Cameron County shall send quarterly reports to the General Land Office stating the amount of beach user fee revenues collected and itemizing how beach user fee revenues are expended. The General Land Office may prescribe reporting forms or methods. The General Land Office shall suspend Nueces and/or Cameron county's privilege to collect fees and the approval of the dune protection and beach access plan will be revoked if the beach user fee revenues have been spent on services which are not beach-related. (f) Beach user fee accounts. Nueces County and Cameron County shall follow the following methods for administering beach user fee accounts. (1) Beach user fee revenues shall be maintained and accounted for so that fee collections may be directly traced to expenditures on public beach related services and facilities. Beach user fee revenues shall not be commingled with any other funds and shall be maintained in separate bank accounts. (2) Beach user fee revenue may be used for reasonable overhead of the local government directly related to operation and maintenance of the beach related services and facilities. (3) A separate financial statement shall be maintained for each beach user fee. All account balances and expenditures shall be documented according to generally accepted accounting principles. (g) Free beach access. Nueces County and Cameron County shall maintain free public beach access by providing areas where no fee is charged for parking on or off beach and for pedestrian access. (h) Access for disabled persons. Nueces County and Cameron County shall establish, preserve, and enhance access for disabled persons. Nueces County and Cameron County shall not discriminate against any individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations on or related to the public beach by any person who owns, leases, or operates a place of such public accommodation, as provided in 42 United States Code, sec.12181. (i) Identification of fee and non-fee areas. Nueces County and Cameron County shall conspicuously mark both fee and non-fee beach areas with signs that clearly indicate, at minimum: the location of both the fee and non-fee areas and the identity of the local government collecting the fee. (j) Coordination with other beach-related plans. The beach user fee pLan may be a part of a local government's beach access and use plan required under the Open Beaches Act, sec.61.015, any vehicular control plan required under the Open Beaches Act, sec.61.022, and any dune protection program required under the Texas Natural Resources Code, Chapter 63. The General Land Office encourages local governments to combine and integrate these various plans. sec.15.78. Penalties. (a) In addition to any penalties assessed by a local government, any person who violates either the Dune Protection Act, the Open Beaches Act, this subchapter, or a permit or certificate condition is liable to the General Land Office for a civil penalty of not less than $50 nor more than $1,000 per violation per day. Each day the violation occurs or continues constitutes a separate violation. Violations of the Dune Protection Act and the Open Beaches Act and the rules adopted pursuant to those statutes are separate violations, and the General Land Office may assess separate penalties. The assessment of penalties under one Act does not preclude another assessment of penalties under the other Act for the same act or omission. Conversely, compliance with the statute and the rules adopted thereunder does not preclude the General Land Office from assessing penalties under the other statute and the rules adopted pursuant to that statute. (b) In determining whether the assessment of penalties is appropriate, the General Land Office will consider the following mitigating circumstances: acts of God, war, public riot, or strike; unforeseeable, sudden, and natural occurrences of a violent nature; and willful misconduct by a third party not related to the permittee by employment or contract. sec.15.79. General Provisions. (a) Construction. A local government's ordinances, orders, resolutions, or other enactments covered by this subchapter shall be read in harmony with this subchapter. If there is any conflict between them which cannot be reconciled by ordinary rules of legal interpretation, this subsection controls. Certification of a local government beach access and use plan by the General Land Office may not be construed to expand or detract from the statutory or constitutional authority of a local government or any other governmental entity, nor may any person construe such certification to authorize a local government or any other governmental entity to alienate public property rights in public beaches. (b) Boundary of the public beach. The attorney general shall make determinations on issues related to the location of the boundary of the public beach and encroachments on the public beach. The General Land Office and the local governments will consult with the attorney general whenever questions of encroachment and boundaries arise with respect to the public beach. (c) Public beach presumption. Except for beaches on islands or peninsulas not accessible in whole or in part by public road or common carrier ferry facility, in administering its plan a local government shall presume any beach within its jurisdiction is a public beach unless the owner of the adjacent land obtains a declaratory judgment otherwise under the Natural Resources Code, sec.61.019. (d) Violations. No person shall violate any provision of this subchapter, a local government dune protection and beach access plan, or any permit or certificate or the conditions contained therein. (e) Reporting violations. Local governments shall immediately inform the General Land Office of any violations or threatened violations of a permit, a certificate, the Dune Protection Act, Open Beaches Act, and this subsection. (f) Withdrawal of plan certification. The General Land Office may withdraw certification of all or any part of a local government's dune protection and beach access plan if the local government does not comply with its plan, this subchapter, the Dune Protection Act, or the Open Beaches Act. Local governments that have had plan certification withdrawn by the General Land Office shall nevertheless continue to issue permits or other approvals in compliance with this subchapter, the Open Beaches Act and the Dune Protection Act. Without further action by the General Land Office, a local government loses, by operation of law, the privilege to collect beach user fees if state agency certification of its dune protection and beach access plan is withdrawn. (g) Notice of withdrawal of plan certification. The General Land Office will notify any local government and the Attorney General's office 30 days prior to withdrawing General Land Office certification of the local government's plan. The local government may submit to the General Land Office any evidence demonstrating full compliance with its plan, this subchapter, the Dune Protection Act and the Open Beaches Act. The General Land Office will consider the good faith efforts of any local government to immediately and fully comply with those laws during the 60-day period after the notification of intent to withdraw certification. Issued in Austin, Texas, on September 25, 1992. TRD-9213242 Garry Mauro Commissioner General Land Office Effective date: September 30, 1992 Expiration date: January 28, 1993 For further information, please call: (512) 463-5019 TITLE 34. PUBLIC FINANCE Part X. Texas Public Finance Authority Chapter 223. Master Equipment Lease Purchase Program 34 TAC sec.sec.223.1, 223.3, 223.5, 223.7 The Texas Public Finance Authority is renewing the effectiveness of the emergency adoption of new sec.sec.223.1, 223.3, 223.5, and 223.7, for a 60-day period effective October 15, 1992. The text of new sec.sec.223.1, 223.3, 223.5, and 223.7 was originally published in the June 23, 1992, issue of the Texas Register (17 TexReg 4513). Issued in Austin, Texas, on September 30, 1992. TRD-9213255 Pamela Scivicque Accountant II Texas Public Finance Authority Effective date: October 15, 1992 Expiration date: December 14, 1992 For further information, please call: (512) 463-5544