ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 22. EXAMINING BOARDS Part IX. Texas State Board of Medical Examiners Chapter 163. Licensure 22 TAC sec.163.12 The Texas State Board of Medical Examiners adopts an amendment to sec.163. 12, without changes to the proposed text as published in the February 6, 1996, issue of the Texas Register (21 TexReg 834). The section as adopted will clarify the requirements for physicians to become relicensed following cancellation of their license due to nonpayment of annual registration fees. The section as adopted will function by outlining the circumstances under which a physician would not be required to pass an examination when applying for relicensure. No comments were received regarding adoption of the amendment. The amendment is adopted under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.3.01(c), is affected by this amendment. 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. Issued in Austin, Texas, on March 26, 1996. TRD-9604232 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: April 16, 1996 Proposal publication date: February 6, 1996 For further information, please call: (512) 305-7016 Chapter 165. Medical Records 22 TAC sec.165.1 The Texas State Board of Medical Examiners adopts new sec.165.1, with changes to the proposed text as published in the February 6, 1996, issue of the Texas Register (21 TexReg 835). The new section as adopted will clarify what is required of physicians with regard to the release of medical records and will establish reasonable fees for providing such records. The new section as adopted will function by setting out the requirements for physicians to provide copies of medical records. Comments were received from several law firms and from the Texas Osteopathic Medical Association regarding adoption of the new section. COMMENT: An Austin law firm commented that subsection (b) of the proposed rule might be more clearly stated by substituting the language "Within 30 days after the physician has received a request for copies of a patient's medical records, the physician shall send the records to the requestor at the address specified." RESPONSE: Subsection (b) does not require substitution of the commenter's proposed language to provide further clarity since the published proposed language is sufficiently clear and no other comments were received requesting clarification. COMMENT: The Austin law firm further commented that subsection (h) of the proposed rule might be less in need of interpretation if it were to read: "If the request, or a supplemental request, specifically asks for copies of the billing records pertaining to medical treatment of a patient, the physician may additionally add reasonable charges for copying the billing records." RESPONSE: Subsection (h) does not require substitution of the commenter's proposed language to decrease the need for interpretation, because the published proposed language is sufficiently clear. COMMENT: The Texas Osteopathic Medical Association has commented that the published proposal may be improved by adding language to subsection (e) to state that physicians may charge no more than $8.00 for each copy of x-ray film. The commenter maintains that such a fee would be fair and reasonable. RESPONSE: The suggested addition of language in subsection (e) to the published proposal to establish fees for copies of x-ray film is not without merit, but would require a substantive change to the published proposal and result in delay of the effective date of the rule. The commenter's proposal is best addressed through future rule-making. COMMENT: A Houston law firm commented in support of the published proposal and recommended adoption of the rule as a fair and sufficient mechanism to ensure adequate compensation to physicians for releasing medical records while preventing abusive fees charged by some physicians. RESPONSE: The supporting comment is consistent with the published rule and is not disputed. The new section is adopted under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.5.08, is affected by this new section. sec.165.1. Medical Records. (a) As required by the Medical Practice Act, sec.5.08(k), a physician shall furnish copies of medical records requested or a summary or narrative of the records pursuant to a written release of the information as provided by the Medical Practice Act, sec.5.08(j), except if the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient, and the physician may delete confidential information about another patient or family member of the patient who has not consented to the release. (b) The requested copies of medical records or a summary or narrative of the records shall be furnished by the physician within 30 days after the date of the request and reasonable fees for furnishing the information shall be paid by the patient or someone on behalf of the patient. (c) If the physician denies the request for copies of medical records or a summary or narrative of the records, either in whole or in part, the physician shall furnish the patient a written statement, signed and dated, stating the reason for the denial, and a copy of the statement denying the request shall be placed in the patient's medical records. (d) For purposes of this chapter, "medical records" shall mean any records pertaining to the history, diagnosis, treatment or prognosis of the patient including copies of medical records of other health care practitioners contained in the records of the physician to whom a request for release of records has been made. (e) The physician responding to a request for such information shall be entitled to receive a reasonable fee for providing the requested information. A reasonable fee shall be a charge of no more than $25 for the first 20 pages and $.15 per page for every copy thereafter. In addition, a reasonable fee may include actual costs for mailing, shipping, or delivery. (f) The physician providing copies of requested medical records or a summary or a narrative of such records shall be entitled to payment of a reasonable fee prior to release of the information unless the information is requested by a licensed Texas health care provider or a physician licensed by any state, territory, or insular possession of the United States or any State or province of Canada if requested for purposes of emergency or acute medical care. In the event the physician receives a proper request for copies of medical records or a summary or narrative of the medical records for purposes other than for emergency or acute medical care, the physician may retain the requested information until payment is received. In the event payment is not routed with such a request, within ten calendar days from receiving a request for the release of such records for reasons other than emergency or acute medical care, the physician shall notify the requesting party in writing of the need for payment and may withhold the information until payment of a reasonable fee is received. A copy of the letter regarding the need for payment shall be made part of the patient's medical record. Medical records requested pursuant to a proper request for release may not be withheld from the patient, the patient's authorized agent, or the patient's designated recipient for such records based on a past due account for medical care or treatment previously rendered to the patient. (g) A subpoena shall not be required for the release of medical records requested pursuant to a proper release for records under this section and the Medical Practice Act, sec.5.08, made by a patient or by the patient's guardian or other representative duly authorized to obtain such records. (h) In response to a proper request for release of medical records, a physician shall not be required to provide copies of billing records pertaining to medical treatment of a patient unless specifically requested pursuant to the request for release of medical records. (i) The allowable charges as set forth in this chapter shall be maximum amounts, and this chapter shall be construed and applied so as to be consistent with lower fees or the prohibition or absence of such fees as required by state statute or prevailing federal law. 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. Issued in Austin, Texas, on March 26, 1996. TRD-9604233 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: April 16, 1996 Proposal publication date: February 6, 1996 For further information, please call: (512) 305-7016 Chapter 190. Disciplinary Guidelines 22 TAC sec.190.1 The Texas State Board of Medical Examiners adopts new sec.190.1, without changes to the proposed text as published in the February 6, 1996, issue of the Texas Register (21 TexReg 835). The new section as adopted will provide guidance for administrative law judges and board members in contested matters related to discipline and licensure. The section as adopted will function by promoting consistency in the exercise of sound discretion by board members in disciplinary matters. COMMENT: One comment was received from an Austin law firm that commented that subsection (c)(10) of the proposed rule might be revised to refer to "disciplinary history of prior investigations by the board which results in other than dismissal." RESPONSE: The commenter's suggestion does not merit changing the published proposal because the language of the published proposal is sufficiently clear and incorporates the concept central to the concern of the commenter by the limitation inherent in the terms "disciplinary history." It is acknowledged that a closed or dismissed investigation does not constitute discipline, and therefore, is not a part of a physician's disciplinary history. The new section is adopted under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.4.12 and sec.4.125 is affected by this new section. 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. Issued in Austin, Texas, on March 26, 1996. TRD-9604234 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: April 16, 1996 Proposal publication date: February 6, 1996 For further information, please call: (512) 305-7016 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 15. Coastal Area Planning Subchapter A. Management of the Beach/Dune System 31 TAC sec.sec.15.2-15.8, 15.10 The General Land Office adopts amendments to sec.sec.15.2-15.8 and 15.10, concerning protection of dunes and dune vegetation and the preservation and enhancement of use and access to and from Texas' public beaches, with changes to the proposed text as published in the September 26, 1995, issue of the Texas Register (20 TexReg 7798). Sections 15.2, 15.3, 15.6, 15.7 and 15. 10 are adopted with changes. Sections 15.4, 15.5 and 15.8 are adopted without changes and will not be republished. The amendments to Chapter 15, Subchapter A, are adopted to address scientific and practical implementation issues noted by citizens residing on the coast, the General Land Office, and the local governments with the frontline responsibility for managing Texas' public beaches and the property landward of the beaches, as required by the Open Beaches Act, Texas Natural Resources Code, sec.sec.61.001 et seq., and the Dune Protection Act, Texas Natural Resources Code, sec.sec.63.001, et seq. The state beach/dune program has been in effect since the beach/dune rules were adopted in the February 2, 1993, issue of the Texas Register (18 TexReg 661). Local governments have worked closely with the General Land Office and the Office of the Attorney General in implementing the program. These amendments were proposed in response to local government and citizen concerns and suggestions for improvement, and the adoption of these amendments will result in more consistent and effective management of the beach/dune system through better implementation of the state and local programs. This subchapter and these amendments are for the use of state and local governments in managing the beach/dune system, and respectively provide and clarify the minimum standards for managing the public beach and human activities occurring on the property fronting the Gulf of Mexico, consistent with the requirements of the Open Beaches Act and the Dune Protection Act. The General Land Office has prepared a takings impact assessment (TIA) for the adoption of these amendments. The General Land Office has determined that adoption of these amendments will not result in a taking of private real property. To receive a copy of the TIA, please send a written request to Ms. Cecilia Howells, General Land Office, Legal Services Division, 1700 N. Congress Avenue, Room 630, Austin, Texas, 78701-1495. Editorial changes that do not alter the content of this subchapter have been made to clarify meaning and to correct grammatical errors. To save space, similar comments and responses have been combined by section. General comments and the responses to general comments on the proposed amendments are located at the end of the comment summary and response portion of this preamble. Section 15.2. Definitions. An editorial change was made to the definition of "dune" in sec.15.2, to clarify that the word "usually" modifies both clauses of the third sentence. A commenter questioned the reference to the "eroding area boundary," in the revised definition of "eroding area" in sec.15.2, and requested an identification of the appropriate criteria for designating an eroding area boundary, the effect of establishing such a boundary, and the benefits which would accrue to a local government that established such a boundary. Each local government has the prerogative to decide whether the establishment of an eroding area boundary within their respective jurisdictions is appropriate. The definition of "eroding area boundary" in sec.15.2 identifies the "criteria" for establishing such boundaries. The effect and the benefit of an eroding area boundary is that local governments can establish a landward limit for the application of the eroding area restrictions contained in sec.15.6(f) (relating to Construction in Eroding Areas) and the local beach/dune plan. In the areas between the eroding area boundary and the most landward point of the geographic scope of the beach/dune program, the less restrictive provisions regarding beachfront construction apply. No change was made based on this comment. Regarding the definition of "eroding area" in sec.15.2, a commenter stated that allowing local governments to establish a landward erosion boundary is appropriate and requested the use of the annual historical, as opposed to yearly, erosion rate and the use of a 30-year term, as opposed to a 60-year term. Based on this comment, the word "yearly" was replaced with "annual historical," to clarify that the erosion rate does not have to be determined yearly. The term was changed, based on this comment, from 60 years to 50 years. The 50-year term was chosen to make the rules consistent with the Texas Natural Resources Code, sec.33.604(b), relating to coastal erosion. One commenter stated that because so many requirements are tied to the definition of "habitable structure" in sec.15.2, the General Land Office should revise sec.15.2 by expanding the definition of "habitable structures" to include structures that are not residences, such as "subdivision common elements," and forms of construction which are acceptable to the Federal Emergency Management Agency. The definition of "habitable structures" is intended to include only the structures which are, in fact, habitable and any attachments to habitable structures, such as porches and gazebos. In addition, the General Land Office did not propose any change to the existing definition of "habitable structures" in sec.15.2 when proposing the amendments to the beach/dune rules in the September 26, 1995, issue of the Texas Register (20 TexReg 7798). However, the General Land Office will consider the request of this commenter in any future proposals to amend the beach/dune rules. No change was made based on this comment. Regarding the proposed addition of a definition of "habitable structure perimeter or footprint" in sec.15.2, one commenter recommended that non- habitable structures be defined separately as "structures" and that non- structures such as landscaping and recreational facilities be deleted from the definition altogether. Based on this comment, the definition of "habitable structure perimeter or footprint" has been revised to clarify that non- structures and non-habitable structures (such as landscaping and recreational facilities) are not part of the "habitable structure footprint or perimeter." A commenter suggested that the definition of "master plan" in sec.15.2 be revised to allow developers the flexibility to delineate "building envelopes" so that individual dune protection permits and beachfront construction certificates will not be required for each individual lot. There is no need to have permits or certificates for individual lots located within a master plan unless the application for a master plan did not include a description of all impacts to dunes, dune vegetation or public beach use and access. The purpose of a master plan is to allow a developer to address comprehensively all of the impacts to dunes, dune vegetation, and public beach use and access and to avoid applying for permits and certificates lot by lot. Based on this comment, the definition of "master plan" in sec.15.2 has been revised by adding the following sentence: "[i]f all impacts to dunes, dune vegetation and public beach use and access are accurately identified, local governments shall not require permits and certificates for construction on the individual lots within the master plan area." Concerning the proposed amendment of the definition of "master plan" in sec.15.2, one commenter requested that "master plan" be replaced with "project development plan." The commenter stated that "the rules should be made clear that 'project development plans' are submitted for approval under authority granted by the Open Beaches Act and the Dune Protection Act and are physical development plans which are detailed in scope because they are an immediate step prior to obtaining building permits." The commenter also stated that "[c] hapter 211 of the Local Government Code grants authority to only local governments for comprehensive planning which is more related to integrating local goals, objectives and land uses with zoning and infrastructure planning. " The commenter did not provide the reasoning behind changing the phrase "master plan" to "project development plan," or what would be achieved by adopting the proposed nomenclature. In considering the entire comment, it appears that the commenter is concerned that people will confuse the master plan process with other local planning processes. Regarding the authority to adopt master plans, all provisions in the beach/dune rules, local government plans, and master plans are adopted pursuant to the Open Beaches Act and the Dune Protection Act. To single out one provision as authorized by the relevant statutes is unnecessary, and may mislead readers as to the authority for the other provisions. Concerning any potential for confusion by local governments or citizens, developers and local governments have great flexibility in determining when and how to integrate each master plan into the more general local land use, zoning, and infrastructure planning process. The beach/dune program represents a small portion of a local government's responsibility when considering a development proposal, and each developer and local government may approach the process in a manner best suited to the developer and the local process. No change was made based on this comment. One commenter requested that the definition of "master plan" in sec.15.2 be amended to require applicants to identify any proposed or existing retaining walls. This commenter accurately noted that the location of retaining walls is an issue relevant to the requirements of the Open Beaches Act and the Dune Protection Act, and the definition of "master plan" has been amended as requested. Two commenters requested that the definition of "master plan" in sec.15.2 be revised by deleting the joint consultation between the developer, the local government, the Office of the Attorney General and the General Land Office. One of the commenters asserted that the joint consultation was an "undue burden"; the other asserted that it was impractical because the development is the sole responsibility of the landowner. Master plans involve a voluntary process by which a developer can get preliminary review and input by the state and local governments at the earliest possible time, expediting the final approval process. The General Land Office and the other affected governmental entities are not responsible for the details of the development, rather, the governmental entities are responsible for identifying their concerns in the beginning of the process. The joint consultation process provides the developer with the necessary approvals at the beginning and saves money by avoiding unnecessary revisions to the proposal. It is not fair or practical for any developer to have to wait to get answers that are available from the outset. No change was made based on these comments. A commenter requested revision of the definition of "material changes" in sec.15.2 to indicate that a material change may occur only after a permit or certificate is issued, and stated that until a permit or certificate is approved a change is merely a modification to the application. As provided in the definition of "material changes" in sec.15.2, material changes can either occur after the local government issues the permit or certificate or after the applicant submits an application to a local government and before the local government issues the permit or certificate. The proposed amendment to sec.15. 3(t)(4), relating to the requirements after a material change has occurred, did not clearly conform to the definition of "material changes," nor did it address the point raised by this commenter. Therefore, in response to this comment and to more clearly conform to the definition of "material changes" in sec.15.2, the "material change" provision in sec.15.3(t)(4) has been revised to clarify that applicants must modify their applications if material changes occur after submission of an application and before issuance of a permit or certificate. One commenter requested that the definition of "material changes" in sec.15. 2 be revised to only include those material changes which would result in "additional" adverse effects to dunes, dune vegetation, or beach access and use. When considering whether material changes have occurred, local governments should consider additional or unanticipated adverse effects to dunes, dune vegetation, and public beach use and access which occur after a permit or certificate is issued. Based on this comment, the definition of "material changes" in sec.15.2 was revised by adding "additional or unanticipated." A commenter requested that the General Land Office add a new definition of "public beach access" to sec.15.2 as follows: "[a] publicly dedicated easement or right-of-way for the purpose of providing legal access to the public beach. " This commenter referred to local experience where trails have been cut to the public beach as a result of illegal trespass through private property. The definition of "beach access" in sec.15.2 provides that public beach access is available where the public has a "right" to ingress and egress. That right does not include the right to trespass, and the laws protecting private property owners from trespassers are not affected by the beach/dune rules. No change was made based on this comment. A commenter noted that there was not a paragraph break between the definitions of "swales" and "unique flora and fauna" in sec.15.2. This typographical error was corrected. Section 15.3. Administration. Regarding sec.15.3(h), a commenter requested that the state fund all surveying and mapping costs necessary to tie a dune protection line to the state plane coordinate system (SPCS). State funding issues are determined by the Legislature, and cannot be determined by rule. The majority of local governments have already established their dune protection lines, and tied the lines to the SPCS. In addition, with the help of a Natural Resource Inventory grant, the General Land Office coordinated a state and local government inventory of beach/dune resources, which included mapping the dune areas and tying to the SPCS the dune protection lines established by two local governments. The General Land Office staff is available to work with local governments in any aspect of the development and implementation of local beach/dune plans. No change was made based on this comment. Regarding sec.15.3(s)(4), one commenter requested that the existing subheading of "permit and certificate application requirements" in the rules be retained, instead of replacing it with the proposed "permit applications." Section 15.3(s)(4) contains both permit and certificate application requirements; therefore, the commenter's requested change was made. A commenter requested that sec.15.3(s) be revised to require local governments to submit to the state aerial photographs of proposed construction sites with a delineation of the footprint of the proposed construction to assist the state in reviewing the impact of the construction. Based on this comment, and to reflect existing practice, sec.15.3(s)(4)(E)(v) has been added to provide that when copies of aerial photographs are readily available, local governments shall submit them to the state as part of the permit or certificate application submission. One commenter stated that separating the permit and certificate requirements, respectively in sec.15.3(s)(4)(A) and (B), is confusing and unclear and requested retention of the current organization. The commenter suggested that the provisions for differentiating between permits and certificates could all be contained in sec.15.3(s)(4)(A). Another commenter "welcomed" the reorganization. As adopted in 1993, the beach/dune rules combined the permit and certificate application requirements. This caused some confusion for the applicants that needed to apply for a beachfront construction certificate but not a dune protection permit (for example, where there are no dunes on a lot). In addition, there are local governments that do not have jurisdiction over both dune protection and Open Beaches issues. The reorganization of sec.15.3(s)(4) was proposed at the urging of local governments and affected citizens. Now, the dune protection permit application requirements are contained in sec.15.3(s)(4)(A), the beachfront construction certificate application requirements are contained in sec.15.3(s)(4)(B), the overlapping requirements for both permit and certificate applications are contained in sec.15.3(s)(4)(C) and (D), and the items that local governments are required to submit to the state for all applications are identified in sec.15.3(s)(4)(E). While there may be some initial confusion due to a change in the status quo, the benefit of the reorganization is a clearer and less confusing structure for both applicants and local governments. No change was made based on this comment. Regarding sec.15.3(s)(4)(A)(iii), one commenter stated that requiring applicants to identify the location of the dune protection line with respect to the location of the proposed construction is irrelevant because it makes little difference in the application of regulations. The commenter also stated that if an application is submitted to the state for comment, that is a pretty clear indication that the proposed construction is within the dune protection area. In some cases, the dune protection line runs through a particular tract of land, meaning that certain portions of the proposed construction would not be subject to state review under the Dune Protection Act. The relevance of identifying the location of the dune protection line varies, depending on the jurisdiction and the tract in question. For example, those local governments that have established their dune protection lines along a public road may not be concerned with construction that is proposed both within and landward of the dune protection area; however, it is quite simple to note on the pertinent application that the dune protection line is located along the public road. No change was made based on this comment. One commenter supported the proposed deletion of sec.15.3(s)(4)(A)(xiii) and sec.15.6(f)(4), which required that applicants for eroding area permit applications submit proof of financial assurance for building relocation. No change was made based on this comment. Section 15.3(s)(4)(A)(xiv) was amended by adding the words "site plan" to address the concerns of two commenters regarding the site plan requirement in proposed sec.15.3(s)(4)(D)(i), which was deleted based on comments. The summary of those comments and the General Land Office's response regarding the revision to sec.15.3(s)(4)(A)(xiv) based on that comment are provided in this preamble with the other comments received on sec.15.3(s)(4)(D). Referring to sec.15.3(s)(4)(A)(xiv)(VI), one commenter requested the retention of the requirement that applicants submit information on man-made mounds and restored dunes. This subclause was not changed or deleted in the proposed amendments published in the September 26, 1996, issue of the Texas Register (20 TexReg 7798). No change was made based on this comment. A commenter recommended modification of sec.15.3(s)(4)(B)(iv), which requires permit applicants to submit a certification that the project will not adversely affect public beach access or "exacerbate erosion." The commenter noted that an individual permit applicant can certify to the effects on public beach access of building a structure or several structures; however, erosion impacts are more difficult to project and are the task of the local permitting authority. Section 15.3(s)(4)(B)(iv) requires an opinion by the applicant, not a certification, regarding the impacts of the proposed construction. The local government and the state are the appropriate entities to determine whether erosion will, in fact, be exacerbated. No change was made based on this comment. One commenter requested that sec.15.3(s)(4)(B)(vii) be revised to keep the requirement that applicants submit photographs that show location of dunes because such information is pertinent to the consideration of Open Beaches issues. Photographs are an essential element of the permit and certificate applications for the purpose of identifying beach/dune issues; therefore, based on this comment, sec.15.3(s)(4)(B)(vii) has been revised to require that if the tract has dunes, photographs of the dunes must also be included in the application. Section 15.3(s)(4)(B)(viii) was revised by adding the words "site plan" to address the concerns of two commenters regarding the site plan requirement in sec.15.3(s)(4)(D)(i). The summary of those comments and the General Land Office's response regarding the revision to sec.15.3(s)(4)(B)(viii) based on that comment are provided in this preamble with the other comments received on sec.15.3(s)(4)(D). One commenter proposed revising sec.15.3(s)(4)(B)(viii)(III) and (IV) to require applicants to identify "the location of the proposed habitable structure perimeter or footprint, or other proposed..." Section 15.3(s)(4)(B) (viii)(III) and (IV) respectively require that applicants identify the location of proposed construction and proposed and existing structures. These phrases are broader than and include the "proposed habitable structure perimeter or footprint"; therefore, no change was made based on this comment. A commenter requested that sec.15.3(s)(4)(B)(viii)(III) be revised to include the seaward limit, in addition to the landward limit of construction. Section 15.3(s)(4)(B)(viii)(III) requires applicants to identify the location of the proposed construction, which includes the seaward and landward limits of construction. The phrase "landward limits" modifies the phrase "beachfront construction area." The Open Beaches Act, Texas Natural Resources Code, sec.61. 011(d) and sec.61.015(c), requires local governments to regulate "construction on land adjacent to and landward of public beaches and lying in the area either up to the first public road generally parallel to the beach or to any closer public road not parallel to the beach, or to within 1,000 feet of mean high tide, whichever distance is greater, that affects or may affect public access to and use of public beaches." Some local governments have established, with the state's approval, a landward limit for the regulation of beachfront construction. This approach is warranted in areas where, for example, literal interpretation of the distances provided in the statute would result in the regulation of "beachfront" construction up to Interstate 10. No change was made based on this comment. A commenter asserted that the requirement that an applicant identify "the location of the proposed construction" in sec.15.3(s)(4)(B)(viii)(III), duplicated the requirement that an applicant identify "the location of proposed and existing structures" in sec.15.3(s)(4)(B)(viii)(IV). The commenter requested elimination of the duplication. The terms "construction" and "structure" are not synonyms, and different definitions are provided for the terms in sec.15.2. No change was made based on this comment. A commenter requested that sec.15.3(s)(4)(B)(viii)(III) be revised by replacing the term "mean high water" with "mean high tide." Because "mean high tide" is the terminology used in the Open Beaches Act, Texas Natural Resources Code, sec.61.011(d), the requested change was made. Regarding sec.15.3(s)(4)(B)(viii)(III), one commenter questioned the relevance of requiring that applicants identify the location of the mean high water line, the dune protection line, the line of vegetation, and the limit of the beachfront construction area. These various physical benchmarks are essential to determining the location of the construction with respect to: the water's edge; the dune protection area; the public beach; and the area protected by the Open Beaches Act. Local governments submit permit and certificate applications to the state, as required by law, and the General Land Office and the Office of the Attorney General use these benchmarks as an integral part of the state review. No change was made based on this comment. A commenter requested deletion of the requirement that applicants identify the location of proposed driveways from sec.15.3(s)(4)(B)(viii)(V) because private driveways are not a public beach access issue. The Open Beaches Act, Texas Natural Resources Code, sec.61.011(d), covers beachfront construction, in addition to beach access. Construction of driveways within the area subject to the Open Beaches Act is beachfront construction. No change was made based on this comment. Two commenters requested the deletion of the requirement that applicants identify proposed landscaping activities within 200 feet of the line of vegetation from sec.15.3(s)(4)(B)(viii)(VI). One commenter asserted that the requirement is ambiguous, not in the current rules, and that the amendment does not include any justification for this requirement. Another commenter asserted that the requirement should be deleted because it is not a beach access issue. This provision only applies to the area within 200 feet landward of the line of vegetation. Some landscaping can adversely affect public beach use and access where, for example, fences, sand fences, yucca plants, and other types of vegetation with sharp foliage are used. Landscaping activities can also modify or destroy the natural vegetation line, and local governments should have notice of such activities in the application. The Open Beaches Act, Texas Natural Resources Code, sec.61.011(d), covers beachfront construction such as landscaping, in addition to beach access. Therefore, identification of proposed landscaping must be included in a certificate application. No change was made based on these comments. One commenter requested that sec.15.3(s)(4)(B)(viii)(VII) be revised to geographically limit the required information to 100 feet of the common property line because the provision should be limited to some distance from the adjoining property line. Because the General Land Office is mainly concerned with the area near the common property line, the requested revision was made. Regarding sec.15.3(s)(4)(C)(i), a commenter recommended that plat and survey information be limited to the affected site and not the whole subdivision if it happens to be owned by the same property owner. This commenter also requested deletion of the distinction between subdivision tracts and other tracts. Subdivision owners and developers have plat and survey information readily available as part of the local and state process of reviewing construction. The distinction between subdivision tracts and other tracts of land is important because a single permit and/or certificate cannot be used to authorize an entire subdivision. A subdivision developer or owner may choose to either have the subdivision approved by applying for a lot-by-lot permit and certificate or may have the entire subdivision approved at one time by using the master plan process. No change was made based on this comment. Two commenters recommended that sec.15.3(s)(4)(C)(i) be revised by replacing the term "plat" with "survey." Another commenter requested that the proposed language be replaced with the following: "(i) If the affected area is located on one or more lots within the platted subdivision, provide a copy of the recorded plat, if the affected area is located within an un-platted tract, provide a survey of the tract." Based on these comments, the clause was amended to allow an applicant to submit a survey if the affected area is not platted. One commenter requested that "or less impairment of beach access" in sec.15. 3(s)(4)(C)(iii) be replaced with "or, in the case of proposed dune walkovers, less of an encroachment on the public beach." The commenter stated that it is important to guard against any statement that could suggest a relaxing of the prohibition of encroachments on the public beach, and that the only legal structure on the beach is a dune walkover restricted to the most landward point possible. The beach/dune rules do not authorize any encroachments, no matter how minimal, on the public beach; therefore sec.15.3(s)(4)(C)(iii) is limited to impairment of beach access. Dune walkovers may extend to the most landward point of the public beach. Beach access may be impaired, but only if equivalent or better access is provided elsewhere. No change was made based on this comment. Stating that the provision is overly restrictive and demanding of an applicant, a commenter requested deletion of sec.15.3(s)(4)(C)(iii), which requires applicants proposing large-scale construction to identify alternatives to the proposed location of construction on the tract or to the proposed methods of construction which would cause fewer or no adverse effects on dunes and dune vegetation or less impairment of beach access. The commenter failed to state the reasons why the alternatives analysis required for large-scale construction is overly restrictive and burdensome; however, all that is required from an applicant is a narrative identification (supported by graphic material, if necessary), of what construction locations and methods would have fewer or no adverse effects on dunes and dune vegetation or less impairment of beach access. No change was made based on this comment. A commenter requested deletion of proposed sec.15.3(s)(4)(D)(i), which requires applicants to submit a site plan, if one is readily available, and stated that the clause duplicated requirements contained in sec.15.3(s)(4)(C). The subparagraphs are not duplicative because sec.15.3(s)(4)(C) applies to large- scale construction, and sec.15.3(s)(4)(D) applies to all construction. Deleting sec.15.3(s)(4)(D)(i) could result in an information gap for small-scale construction. However, to address the concerns of this commenter, and those expressed by another commenter in the next comment summary, sec.15. 3(s)(4)(A)(xiv) and sec.15.3(s)(4)(B)(viii) were amended to give applicants the flexibility of submitting a map, plat or site plan to identify the listed information; it is the applicant's choice, a site plan is not required. In addition, sec.15.3(s)(4)(D)(i) was deleted and the clauses were renumbered accordingly. A commenter requested deletion of proposed sec.15.3(s)(4)(D)(i) and (ii) on the grounds that sec.15.3(s)(4)(A)(i)-(xiv) and sec.15.3(s)(4)(B)(i)-(viii) already satisfy the requirements of proposed sec.15.3(s)(4)(D)(i) and (ii). Based on this and the previous comment, proposed sec.15.3(s)(4)(D)(i) and (ii) were deleted and the clauses renumbered accordingly because, respectively, most of the elements of a site plan are required pursuant sec.15.3(s)(4)(B) and (C) and topographic elevations of existing contours are required pursuant to sec.15.3(s)(4)(A)(ix). Section 15.3(s)(4)(D)(iii) and (iv) were renumbered and the provisions in those clauses are now provided in sec.15.3(s)(4)(D)(i) and (ii). The renumbering of 15.3(s)(4)(D)(iii) and (iv), now sec.15.3(s)(4)(D)(i) and (ii), is due to the deletion of previous sec.15.3(s)(4)(D)(i) and (ii) in response to comments. The two previous paragraphs of this preamble contain a summary of those comments and the General Land Office's response. One commenter stated that sec.15.3(s)(4)(D)(iii), now sec.15.3(s)(4)(D)(i), is irrelevant because the General Land Office has already adopted the erosion rates prepared by the University of Texas at Austin Bureau of Economic Geology, and that sec.15.3(s)(4)(F) already establishes the General Land Office as the contact for erosion rate data and technical information. The purpose of sec.15. 3(s)(4)(D)(iii), now sec.15.3(s)(4)(D)(i), is to have the applicant identify, if the information is readily available, the erosion data for the area where the construction is proposed. This information becomes part of the administrative record of the General Land Office's comments for the pertinent application. No change was made based on this comment. Regarding sec.15.3(s)(4)(E)(i), one commenter suggested an amendment to require local governments to submit the community's complete flood insurance rate map to the General Land Office only once instead of submitting multiple copies of the most recent flood insurance map. The purpose of sec.15.3(s)(4)(E) (i) is to have the local government identify the location of the construction site on the relevant portion of the flood insurance rate map. This information is a necessary part of the administrative record of the General Land Office's comments for the pertinent application, and the accuracy of the application and supporting materials should not be compromised by the General Land Office adding material to the application in Austin. No change was made based on this comment. In sec.15.3(s)(4)(F), concerning dissemination of erosion data and other technical information, one commenter suggested deleting "may" and replacing it with "shall." The General Land Office will continue to assist local governments in every way possible. Based on this comment, sec.15.3(s)(4)(F) has been revised to provide that the General Land Office shall provide available erosion data and other technical information upon request. Section 15.3(t)(4) was amended to address the concerns of a commenter regarding the definition of "material changes" in sec.15.2 and to ensure that sec.15.3(t)(4) conforms to that definition with respect to permit and certificate applications. The summary of that comment and the General Land Office's response regarding the revision to sec.15.3(t)(4) based on that comment are provided in this preamble in alphabetical order with the other comments received on the definitions in sec.15.2. Section 15.4. Dune Protection Standards. Regarding sec.15.4(c)(3), one commenter asked for further definition of the word "unacceptable" as it relates to mineralogy or grain size. The term "unacceptable" is used in comparison to the mineralogy and grain size of the sediment existing on the site. The acceptability of sediment is primarily a local government decision, which the state will review as part of the statutorily authorized permit review process. No change was made based on this comment. One commenter requested that sec.15.4(c)(8) be eliminated or restricted in applicability to eroding areas only. The commenter stated that the impact of this rule has been to encourage maximum development of the lot by the habitable structure, with a resulting reduction in open space on-site. Another commenter requested that the subsection be expanded to authorize a standard double car driveway and sidewalk. Section 15.4(c)(8) authorizes the construction of impervious surfaces under and associated with habitable structures. The allowable amount of impervious surface is based on a percentage of the size of the habitable structure. There is nothing in the rules to prevent an applicant from enlarging the size of a proposed habitable structure to maximize the amount of impervious surface on a particular tract of land. This subsection is not limited to eroding areas because it addresses concerns related to soil permeability, the water table, the sediment budget, and protection from storm surge. No change was made based on these comments. Commenting on sec.15.4(c)(8), a commenter requested that consideration be given to allowing the use of wood decking as an acceptable approach for sidewalks or patio areas, provided that wood deck is designed to allow for the transmission of stormwater. Under the existing rules and the amendments, local governments may allow permittees to use wood decking, provided that it is constructed so that water may pass through the deck (between the planks). No change was made based on this comment. A commenter suggested that as sec.15.4(f) and sec.15.4(f)(1) and (2) are written, the mitigation sequence is used after it is determined that the proposed construction will not weaken or damage dunes or dune vegetation, however, if it was already determined that the proposed construction will not weaken or damage dunes or dune vegetation, there are no adverse impacts to mitigate. Regarding sec.15.4(f)(1), the commenter stated that if the activity will not materially weaken dunes or dune vegetation, then the proposed activity is not an adverse impact. The Dune Protection Act prohibits material weakening of dunes and dune vegetation, and requires permits for other, lesser types of damage to dunes and dune vegetation. Therefore, permits are required for impacts to dunes and dune vegetation which do not rise to the level of material weakening of the dunes and dune vegetation. No change was made based on this comment. Regarding sec.15.4(f)(1)(B) and sec.15.4(f)(2)(B)(iii), one commenter questioned the impact of these regulations on local government actions in which determinations are made or policies adopted which provide for no private access to the public beach and access from these properties is restricted to public access points only. Such determinations are appropriately made at the local government level. The beach/dune rules would not impact a local government decision to require residents to use public accessways. No change was made based on this comment. One commenter asserted that sec.15.4(f)(3) and (4) appear to be the only paragraphs that are properly written to reflect that weakening or damage to dunes and dune vegetation are the adverse effects being addressed. No change was made based on this comment. Section 15.5. Beachfront Construction Standards. A commenter asserted that sec.15.5 focuses on beachfront construction standards, which are primarily intended to address the effects of proposed activities on beach access, and that paragraph (b)(3) is not part of this section in the current rules and should not be included in the amendment because it has nothing to do with beach access. This commenter also stated that the issue of impervious surfaces is already addressed in sec.15.4(c)(8). Impervious surfaces are appropriately considered pursuant to the Open Beaches Act, Texas Natural Resources Code, sec.61.011(d), because they impact natural drainage patterns, the sediment budget, soil permeability, the water table, and protection from storm surge. When water comes in contact with impervious surfaces, erosion is exacerbated by the scouring of the sediment under and around the impervious surface. The scope of the Open Beaches Act, sec.61.011(d), is not limited to beach access. No change was made based on this comment. An editorial change was made to sec.15.5(b)(3) to clarify that the use of the word "or" means that impervious surfaces cannot be constructed in the area within 200 feet landward of the line of vegetation or seaward of the eroding area boundary by adding the words "whichever distance is greater." Section 15.6. Concurrent Dune Protection and Beachfront Construction Standards. Citing sec.15.6(c) and sec.15.7(b), one commenter stated that a policy based upon sec.15.7(b) is the appropriate approach. The commenter requested that sec.15.6(c) be revised to provide that erosion response structures are restricted from the area within 200 feet of the vegetation line, and retaining walls are permitted within that area, especially in accreting areas. No amendments to sec.15.6(c) or sec.15.7(b) were proposed; however, it should be noted that sec.15.7(b) relates to erosion response through the use of coastal and shore protection projects, such as beach nourishment, and sec.15.6(c) authorizes the construction of retaining walls on private property. No change was made based on this comment. Regarding sec.15.6(f)(3), a commenter stated that the proposed amendment appears to reverse the existing prohibition of concrete slabs in eroding areas. The commenter noted that, as defined in sec.15.2, "eroding areas" erode at a rate of at least two feet per year, and noted that concrete slabs would likely become obstructions on the public beach. The commenter suggested that if this paragraph is amended to allow for construction of slabs in eroding areas, the applicant should be required to post a bond sufficient to provide for removal of the slab and an applicant not wishing to post a bond would still have the option of placing pervious brick, crushed limestone, or gravel surfaces under the house. The commenter's point is illustrated by looking at some of Texas' eroding beaches where there is now debris and remnants of abandoned houses and infrastructure. The federal, state and local governments and owners of property landward of eroding beaches are currently trying to address the problem of Texas' eroding beaches. As adopted in 1993, the beach/dune rules, sec.15.6(f)(4), required financial assurance for construction in eroding areas, and local governments and private property owners clearly told the General Land Office that the financial assurance requirement would cause severe fiscal impacts to the barrier island developers. Based on those concerns, the General Land Office proposed deletion of the financial assurance requirement in the September 26, 1995, proposed amendments to this subsection, and a new financial assurance requirement has not been added based on this comment. However, in response to this comment, and to conform to existing sec.15.4(c)(8), relating to the application of dune protection standards to construction of impervious surfaces, and proposed sec.15.5(b)(3), relating to the application of beachfront construction standards to construction of impervious surfaces, sec.15.6(f)(3) has been revised to provide that, within eroding areas, local governments shall not authorize construction of impervious surfaces within that local government's eroding area boundary or within 200 feet of the line of vegetation, whichever distance is greater. The adoption of amended sec.15. 6(f)(3), as revised based on this comment and as revised to conform to sec.15. 4(c)(8) and sec.15.5(b)(3), authorizes the construction of impervious surfaces landward of eroding beaches; however, these impervious surfaces will be located at a distance from the beach which is sufficient to protect the public beach and will give developers and local governments the flexibility they desire in proposing and authorizing beachfront construction. A commenter requested that the amendment to sec.15.6(f)(3), which allows impermeable surfaces within the footprint of the habitable structure be revised to allow impermeable surfaces within the footprint of elevated portions of a structure plus a standard single car driveway and sidewalk. The General Land Office proposed eliminating the prohibition on slabs and other impervious surfaces adjacent to eroding beaches. This amount is the maximum, reasonable proportion necessary for property owners and local governments to have more flexibility in undertaking and authorizing beachfront construction next to Texas' eroding beaches. No change was made based on this comment. One commenter requested that sec.15.6(f)(3) be revised to include pavers to conform to the requirements of sec.15.4(c)(8) and sec.15.5(b)(3). The phrase "brick pavers" was added to sec.15.6(f)(3) based on this comment. One commenter requested the deletion of sec.15.6(f)(4), and stated that the National Flood Insurance Program (NFIP) no longer allows the enclosure of garages or storage areas below the Base Flood Elevation (BFE), and that if the subject property is filled to an elevation exceeding the BFE, garage and storage areas can be enclosed with solid walls and without any restriction in square footage. The state beach/dune program and the NFIP have aspects that overlap, but the programs are not and were not meant to be identical. No change was made based on this comment. A commenter stated that the spill response amendments in sec.15.6(h) have not been proposed in a manner that will provide the public with adequate notice. The commenter noted that the General Land Office proposed spill response rules and the General Land Office natural resource damages rules (NRDA) provide for notification to the General Land Office when there is an oil spill within the beach/dune system and coordination of response and NRDA rules rather than indirectly through these proposed amendments. Also noted was that persons with an interest in spill response and NRDA issues will not, in all likelihood, have contemplated that supplemental spill response and NRDA rules would be proposed as amendments to the beach/dune rules and therefore, will not have had a reasonable opportunity to scrutinize these proposed rules. Furthermore, the commenter stated that by interspersing spill response requirements throughout the General Land Office's beach/dune rules rather than maintaining a single set of regulations, the General Land Office may increase the burden of complying for industry and spill responders. Subsection 15.6(h) was proposed in accordance with the public notice requirements of the Texas Administrative Procedure Act (Texas Government Code, sec. sec.2001.001 et seq.). The fact that some interested persons may not have reviewed the proposed rule is not a basis for placing the rule elsewhere. Section 15.6 is appropriately part of the beach/dune rules because it is primarily concerned with maintaining the integrity of the beach/dune system by minimizing the loss of sand during emergency response. Emergency spill responders are required to comply with many other laws and regulations in addition to oil spill rules. For example, state and federal rules related to waste disposal, water quality, air quality and health and safety plans are just some of the rules applicable to oil spill response. These regulations are all authorized by separate statutes. There is no legal basis for consolidating all rules somewhat related to emergency spill response actions into one section of the Texas Administrative Code. Further, such a suggestion is impracticable since several state agencies have jurisdiction over emergency response to spills of oil and hazardous substances. The rule proposed herein is authorized by the Open Beaches Act and the Dune Protection Act, and not by the Oil Spill Prevention and Response Act (OSPRA). Thus, the rules are properly promulgated under this section of the Texas Administrative Code. No change was made based on this comment. One commenter stated that since OSPRA explicitly provides for the adoption of spill response rules and that the statutes under which these rule amendments were proposed do not, it is questionable whether sec.15.6(h) is supported by the necessary statutory authority. Subsection 15.6(h), like numerous other rules, is derived from one of many statutes regulating activities in certain geographic and physical areas. There are many state and federal regulations related to water quality, air quality, solid waste and emergency response which impact emergency spill response actions. For example, such regulations govern activities such as cleanup techniques in wetlands, use of dispersants, burning of spilled oil, and response personnel health and safety. Each of these regulations is promulgated pursuant to a statute other than one designed primarily to address oil spills. Similarly these rules, concerned primarily with maintaining the sand budget in the beach/dune system, are appropriately within the scope of the statutes governing activities on beaches and dunes. No change was made based on this comment. The same commenter, based on the previous comment, recommended that the proposed sec.15.6(h) not be adopted and that in its place, the General Land Office adopt the following language: "(h) Emergency response to oil or hazardous substance spills. Responses to spills of oil or hazardous substances within the beach/dune system shall be consistent with Chapter 19 of this title, relating to Oil Spill Prevention and Response, and with Chapter 20 of this title, relating to Natural Resource Damage Assessments. The General Land Office Oil Spill Response Team shall contact the General Land Office Resource Management Program regarding the proposed cleanup and disposal methods and the conservation of sand within the beach/dune system." If the recommended change is not made, the commenter also offered the following specific changes to the proposed rule, "these rules are intended to provide for the conservation of sand during spill response activities within the beach/dune system." Oil spill response personnel are required to comply with a variety of laws and regulations in addition to those promulgated by the General Land Office pursuant to OSPRA. Current rules at Chapters 19 and 20 of this title do not address specific methods for responding to oil spills in particular types of environments. The on-scene-coordinator is the person charged with and responsible for all decisions related to spill response. The state natural resource trustees do, however, participate in spill response decisions regarding environmentally sensitive areas, like beaches and dunes, through the incident command system. The provisions in sec.15.6(h), appropriately contained in the beach/dune rules, are designed to ensure that damage to beaches and dunes is minimized and that the on-scene-coordinator has guidance from the General Land Office. No change was made based on this comment. One commenter stated that the title of sec.15.6(h) refers to "emergency response to oil or hazardous substance spills;" however, the proposed amendments do not define what constitutes an emergency response. The commenter requested the following definition of "emergency response" be added to subsection (h): "For purposes of this subsection, an emergency response is required when there is an actual or threatened unauthorized discharge of a harmful quantity of oil or a hazardous substance which is or may be spilled, leaked, pumped, poured, emitted, or dumped into the beach/dune system." The title of the subsection gives sufficient notice to spill responders and to the public of the purpose of the rule. The phrase "emergency response to oil or hazardous substances spills" is clear and there is a widespread common understanding about the meaning of the words. A definition is not required to give notice to affected persons. Further, the commenter's recommended definition is not a definition of "emergency response," but appears to be an attempt to delineate when an emergency response is required, a decision clearly better left to those persons trained in and responsible for emergency spill response. No change was made based on this comment. A commenter requested addition of the following sentence to sec.15.6(h) to clarify that the rules will only operate prospectively and that the rules will not apply to pre-existing or historical contamination: "[t]his subsection shall not apply to the remediation of sites with pre-existing or historical contamination." The proposed subsection is applicable in the event of an emergency response to a release of oil or of a hazardous substance. It is also applicable in the event that a person is required to perform remedial work in the beach/dune system for past spills or other historical contamination. Under the Comprehensive Environmental Response, Compensation and Liability Act, 42 United States Code Annotated, sec.sec.9601 et seq., a person required to perform remediation due to a past release of a hazardous substance is required to comply with all applicable, relevant and appropriate requirements of law. Further, persons performing restoration activities conducted pursuant to natural resource damage assessments are also required to comply with applicable, relevant, and appropriate requirements of law. The beach/dune rules, including this proposed subsection, are applicable, relevant, and appropriate requirements of law in such circumstances. No change was made based on this comment. One commenter requested deletion of sec.15.6(h)(1). Or, in the alternative, that the paragraph be changed to require a person from the General Land Office Division of Oil Spill Prevention and Response to notify the Resource Management Program since the General Land Office receives notice of spills. The General Land Office receives spill notifications via the Department of Public Safety, which operates the 1-800-832-8224 spill reporting phone number. The General Land Office, the Railroad Commission of Texas and the Texas Natural Resource Conservation Commission, agencies with emergency spill response jurisdiction, receive a copy of these notifications. However, because neither the Railroad Commission of Texas nor the Texas Natural Resource Conservation Commission require persons responsible for other oil or hazardous substances spills to report them to the spill reporting number, the General Land Office is not notified of all spills. Therefore, this suggestion, under the present spill reporting scheme, would not result in notice to the Resource Management Program. One commenter stated that the meaning of the term "Incident Command System" as used in sec.15.6(h)(2) is unclear because these rules neither define nor reference an "Incident Command System," and that this definition should be clarified and defined or deleted from paragraph (2) of the subsection. This proposed subsection applies to state on-scene-coordinators, who are well-versed in incident command systems. There are several acceptable types of incident command systems and it is within the discretion of the on-scene-coordinator to choose the most appropriate one. A definition is not necessary in these rules, which deal primarily with preservation of sand and beach access and use in the beach/dune system and not with the details of emergency spill response organization. No change was made based on this comment. One commenter stated that sec.15.6(h)(2) and sec.15.6(h)(2)(B)(i) are unnecessary and inappropriate because existing rules for spill response and natural resource damage assessments describe the role of the natural resource trustees in spill response activities. The commenter also suggested deletion of the requirement for consultation with the natural resource trustees in paragraph (2) and the requirement in clause (2)(B)(i) that natural resource trustees pre- approve the construction of man-made mounds, or new dunes. The General Land Office may rely upon the expertise of the state natural resource trustees for protection of the beach/dune system. The natural resource trustee agencies, the Texas Natural Resource Conservation Commission, the Texas Parks and Wildlife Department and the General Land Office, have particular expertise which is relevant to emergency spill response activities impacting beaches and dunes. The natural resource trustees, pursuant to Chapter 20 of this title and the National Contingency Plan, actively participate in spill response decisions by evaluating the likelihood of increasing the injury to impacted natural resources from various spill response techniques. Depth of excavation and sand removal are the types of decisions about which trustees regularly advise on-scene-coordinators during spill response. The delineation of this particular role does not limit the role of the trustees nor does it add to their responsibilities. Regarding the construction of man-made mounds, it is also appropriate to utilize the expertise of the trustees, who are particularly well-versed in analyzing the functions of and services provided by natural resources, such as dunes. The trustees also have expertise in the design of restoration projects which would be especially useful in dune reconstruction. No change was made based on this comment. One commenter stated that sec.15.6(h)(2)(B)(i) requires that "only material that does not pose a threat to human health and the environment may remain in the beach/dune system" and asserted that the rules do not indicate how such a determination will be made or who will be responsible for making such a determination. The commenter recommended that this provision be revised to provide that a site must be remediated to a level designated by the state agency with appropriate jurisdiction. The General Land Office assumes that all applicable state statutory and regulatory requirements for remediation and for leaving contaminated materials on the beach or in the dunes are protective of human health and the environment. There are readily available sampling and chemical testing procedures to analyze materials for the presence of substances at levels injurious to human health and the environment. Emergency spill responders, remedial managers, and natural resource trustees are all familiar with the scientific techniques for making such a determination. The determination is made by the on-scene-coordinator, the remedial manager or the natural resource trustees. To the extent that current or future state regulations require additional safeguards, those would also be applicable. This subsection does not impact the current regulations or add to current legal requirements. No change was made based on this comment. A commenter requested that sec.15.6(h)(2)(B)(iii) be revised to read as follows: "[d]isposal of waste must be in compliance with the applicable laws and regulations of the Railroad Commission of Texas, the Texas Natural Resource Conservation Commission, and the United States Environmental Protection Agency." The subsection was revised based on this comment, although the exact language suggested by the commenter was not used. There are numerous agencies responsible for the disposal of waste in Texas, and because future legislation may expand or change the entities responsible for waste disposal, this subsection was revised by referring to "applicable state and federal laws and regulations." This more general statement obviates the need to amend the rule due to future changes in jurisdiction over waste disposal. Section 15.7. Local Government Management of the Public Beach. One commenter recommended elimination of sec.15.7(e)(6)(D), asserting that it contradicts the proposed changes in sec.15.7(l), and that local government efforts to restore dunes are adversely impacted by the subsections. Neither deletion of nor amendments to sec.15.7(e)(6)(D) were proposed; however, clarification of the interplay between the two subsections is warranted in response to this comment. Section 15.7(e)(6)(D) authorizes local governments to use certain dune restoration methods, one of which is using sand obtained from accreting beaches, as approved by local governments and monitored for adverse impacts to the beach/dune system. Section 15.7(l), which was proposed for amendment, limits beach maintenance activities to those which do not materially weaken dunes or dune vegetation or reduce the protective functions of the beach, and requires that all sand moved or redistributed due to beach maintenance shall be returned to the area between the line of vegetation and mean high tide. Dune restoration is not an appropriate reason to scrape beaches, rather, when it is necessary to scrape accreting beaches as part of state-approved local government beach management practices, such sand may be used for dune restoration. It is commonly accepted in the scientific community that scraping beaches is detrimental to the maintenance of the beach profile, the sediment budget and can exacerbate erosion by lowering the beach elevation, even if the sand is used for dune restoration. That is why, in sec.15.7(l), sand scraped from non-accreting beaches must be placed between mean high tide and the line of vegetation. No change was made based on this comment. A commenter noted that the scientific research projects authorized in sec.15. 7(f) could involve encroachments on the public beach, and requested amendments to the subsection which would require prior approval by the Office of the Attorney General in addition to the General Land Office. Because both state agencies have jurisdiction over Texas' public beaches, the revision suggested by this commenter was made. One commenter suggested combining sec.15.7(g)(3)(B) with sec.15.7(g)(3). The commenter also stated that sec.15.7(f)(1)(A) should be deleted because it duplicates sec.15.7(g)(3)(A). Although proposed sec.15.7(g)(3) and sec.15.7(g)(3) (B) both discuss the landward migration of the public beach, sec.15.7(g)(3) applies to local governments and sec.15.7(g)(3)(B) to individuals. Regarding sec.15.7(f)(A), the subparagraph was proposed for deletion and renumbering, and is now located at sec.15.7(g)(3)(A). No change was made based on this comment. A commenter requested deletion of sec.15.7(l), relating to the requirements that beach maintenance activities must not significantly redistribute sand, and that sand obtained during beach maintenance activities must be returned to the area between the line of vegetation and mean high tide. The commenter stated that the policy would have several negative impacts on beach maintenance practices and public safety and that it should not apply to all areas on the Texas coast as conditions vary in each area. The requirement that beach maintenance activities cannot result in the significant redistribution of sand is an existing provision under which local governments have operated since the beach/dune rules were adopted in 1993, with no negative impacts on beach maintenance practices or public safety. The requirement that local governments place any sand (gathered during beach maintenance activities) between the line of vegetation and mean high tide is new. The reason for this amendment is that sec.15.7(l), previously sec.15.7(k), allowed placement of sand anywhere seaward of the dune protection line or within critical dune areas. It was not sufficiently clear that the beach/dune rules do not authorize beach management practices which alter the line of vegetation, significantly alter the beach profile, or cause damage to dunes and dune vegetation, all of which lead to the eventual erosion of the public beach and the local tourist economy. However, it should be noted that even with the amendment to sec.15.7(l), local governments still retain flexibility regarding beach maintenance and ensuring the health, safety and welfare of the public. No change was made based on this comment. Section 15.8. Beach User Fees. The General Land Office received no comments on this section. Section 15.10. General Provisions. Regarding "grandfathered plans" in sec.15.10(j), one commenter recommended that "beach access plans certified prior to the effective date" be modified to read "certified on or prior to." This commenter also recommended deletion of the second sentence of the subsection in its entirety. The first revision requested by this commenter was made, as suggested. The second was not, as local governments and individuals are required to comply with the Open Beaches Act, the Dune Protection Act, and the rules promulgated thereunder. General Comments. One commenter asserted that the rules were defective because they do not allow local governments to establish a variance procedure. There is at least one local government that has used the master plan process authorized by the beach/dune rules to allow individual developers to "vary," with certain conditions, from some requirements of the beach/dune rules. That local government offered scientific and legal information to support the use of a master plan, and the master plan was certified by the General Land Office. Therefore, there is a process currently available to local governments which ensures flexibility on the local level while ensuring that the statutory mandates of protecting dunes and preserving and enhancing public beach use and access are met. No change was made based on this comment. Referring to references in the proposed amendments to the "line of vegetation" or the "natural line of vegetation," one commenter stated that the General Land Office has accepted only those vegetation lines mapped by the Attorney General's Office, but that the Attorney General's Office never has designated an official vegetation line. The commenter suggested that the line of vegetation be substituted by "contour of mean low tide" as it is an established and identifiable datum by the National Oceanic and Atmospheric Administration and that such an approach will not compromise the use of the line of vegetation as a defined boundary of the public beach. The contour of mean low tide changes daily, and the location varies depending on the day that the survey was conducted. A survey is much more expensive than identifying the line of vegetation. In addition, the General Land Office cannot require local governments to apply all of the provisions of the beach/dune rules landward of mean low tide. The line of vegetation is used as a benchmark because it is the most seaward point where the portions of the rules relating to beachfront construction rules apply. Beachfront construction is not authorized seaward of the line of vegetation because that would be an encroachment. Seaward of the line of vegetation, the rules that apply are those that pertain to public beach use and access, beach management practices, and protection of coppice mounds. No change was made based on this comment. One commenter identified the location of the Galveston County dune protection line and stated that it is consistent with the County's current Federal Emergency Management Agency (FEMA) floodplain regulation. No change was made based on this comment. One commenter stated that walls should be allowed below the footprint of a structure in accordance with Galveston County's current FEMA floodplain regulations. The beach/dune rules allow breakaway walls, consistent with FEMA standards, below the footprint of a habitable structure. In addition, it should be noted that the state beach/dune program and the NFIP have aspects that overlap, but the programs are designed to address concerns in addition to the concerns that are common to both programs. No change was made based on this comment. One commenter asserted that "[n]either the existing rules, nor the proposed amendments, discuss how a local government might later go about amending their Dune Protection and Beach Access Plan once it has been certified by the state.. .and that you would certainly expect the rules to spell this out." This process is described at the end of sec.15.3(e) in the existing rules. The General Land Office did not propose amendments to sec.15.3(e), and no change was made based on this comment. The groups and associations that submitted comments for the amendments as proposed are as follows. Section 15.2: Nueces County. The groups and associations that submitted comments against the amendments as proposed (e.g., commenters that recommended changes to the amendments) are as follows. Section 15.2: City of Corpus Christi; Mitchell Energy & Development Corporation; Town of South Padre Island; and Urban Engineering. Section 15.3: City of Corpus Christi; County of Galveston; Mitchell Energy & Development Corporation; Office of the Attorney General; Town of South Padre Island; and Urban Engineering. Section 15.4: Town of South Padre Island. Section 15.5: Town of South Padre Island. Section 15.6: County of Galveston; Office of the Attorney General; and the Railroad Commission of Texas. Section 15.7: City of Corpus Christi; Office of the Attorney General; Nueces County; and Town of South Padre Island. Section 15.10: City of Corpus Christi. The rules are adopted under the Texas Natural Resources Code, sec.61.011(d) and sec.63.121, which provides the General Land Office with the authority to adopt rules for the protection of dunes and dune vegetation and the preservation and enhancement of Texas' public beaches; the Texas Natural Resources Code, sec.33.601, which provides the General Land Office with the authority to adopt rules on erosion; and the Texas Water Code, sec.16.321, which provides the General Land Office with the authority to adopt rules on coastal flood protection. sec.15.2. Definitions.The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Affect-As used in this subchapter regarding dunes, dune vegetation, and the public beach, "affect" means to produce an effect upon dunes, dune vegetation, or public beach use and access. Amenities-Any nonhabitable major structure including swimming pools, bathhouses, detached garages, cabanas, pipelines, piers, canals, lakes, ditches, artificial runoff channels and other water retention structures, roads, streets, highways, parking areas and other paved areas (exceeding 144 square feet in area), underground storage tanks, and similar structures. Applicant-Any person applying to a local government for a permit and/or certificate for 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 and unrestricted ingress and egress to and from the public beach. Beach/Dune Rules -31 TAC, sec.sec.15.1-15.10. 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 certifies that the proposed construction either is consistent with the local government's dune protection and beach access plan or is inconsistent with the local government's dune protection and beach access plan. In the latter case, the local government must specify how the construction is inconsistent with the plan, as required by the Open Beaches Act, sec.61.015. Beach maintenance -The cleaning or removal of debris from the beach by handpicking, raking, or mechanical means. Beach profile-The shape and elevation of the beach as determined by surveying a cross section of the beach. Beach-related services -Reasonable and necessary services and facilities directly related to the public beach which are provided to the public to ensure safe use of and access to and from 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; beach/dune system education; beach/dune protection and restoration projects; providing public facilities such as restrooms, showers, lockers, equipment rentals, and picnic areas; recreational and refreshment facilities; liability insurance; and staff and personnel necessary to provide beach-related services. Beach-related services and facilities shall serve only those areas on or immediately adjacent to the public beach. Beach user fee -A fee collected by a local government in order to establish and maintain beach-related services and facilities for the preservation and enhancement of access to and from and safe and healthy use of public beaches by the public. Blowout-A breach in the dunes caused by wind erosion. Breach-A break or gap in the continuity of a dune caused by wind or water. Bulkhead-A structure or partition built to retain or prevent the sliding of land. A secondary purpose is to protect the upland against damage from wave action. 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, construction of man-made vegetated mounds, and dune revegetation. Commercial facility -Any structure used for providing, distributing, and selling goods or services in commerce including, but not limited to, hotels, restaurants, bars, rental operations, and rental properties. Construction-Causing or carrying out any building, bulkheading, filling, clearing, excavation, or substantial improvement to land or the size of any structure. "Building" includes, but is not limited to, all related site work and placement of construction materials on the site. "Filling" includes, but is not limited to, disposal of dredged materials. "Excavation" includes, but is not limited to, removal or alteration of dunes and dune vegetation and scraping, grading, or dredging a site. "Substantial improvements to land or the size of any structure" include, but are not limited to, creation of vehicular or pedestrian trails, landscape work (that adversely affects dunes or dune vegetation), and increasing the size of any structure. 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 seaward of the foredunes. Coppice mounds may be unvegetated. Critical dune areas-Those portions of the beach/dune system as designated by the General Land Office that are located within 1,000 feet of mean high tide of the Gulf of Mexico that contain dunes and dune complexes that are essential to the protection of public beaches, submerged land, and state-owned land, such as public roads and coastal public lands, from nuisance, erosion, storm surge, and high wind and waves. Critical dune areas include, but are not limited to, the dunes that store sand in the beach/dune system to replenish eroding public beaches. Cumulative impact -The effect on beach use and access, on a critical dune area, or an area seaward of the dune protection line which results from the incremental effect 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 effects can result from individually minor but collectively significant actions taking place over a period of time. Dedication-Includes, but is not limited to, a restrictive covenant, permanent easement, and fee simple donation. Dune-An emergent mound, hill, or ridge of sand, either bare or vegetated, located on land bordering the waters of the Gulf of Mexico. Dunes are naturally formed by the windward transport of sediment, but can also be created via man- made vegetated mounds. Natural dunes are usually found adjacent to the uppermost limit of wave action and are usually marked by an abrupt change in slope landward of the dry beach. The term includes coppice mounds, foredunes, dunes comprising the foredune ridge, backdunes, and man-made vegetated mounds. Dune complex or dune area-Any emergent area adjacent to the waters of the Gulf of Mexico in which several types of dunes are found or in which dunes have been established by proper management of the area. In some portions of the Texas coast, dune complexes contain depressions known as swales. Dune Protection Act-Texas Natural Resources Code, sec.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 for preserving and enhancing use of and access to and from public beaches, as required by the Dune Protection Act and the Open Beaches Act. Dune protection line-A line established by a county commissioners court or the governing body of a municipality for the purpose of preserving, at a minimum, all critical dune areas identified by the General Land Office pursuant to the Dune Protection Act, sec.63.011, and sec.15.3(f) of this title (relating to Administration). A municipality is not authorized to establish a dune protection line unless the authority to do so has been delegated to the municipality by the county in which the municipality is located. Such lines 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 or other regulated activities in a specified location seaward of a dune protection line or within a critical dune area, as provided in the Texas Natural Resources Code, sec.63.051. Dune vegetation -Flora indigenous to natural dune complexes, and growing on naturally-formed dunes or man-made vegetated mounds on the Texas coast and can include coastal grasses and herbaceous and woody plants. Effect or effects -"Effects" include: direct effects -those impacts on public beach use and access, on critical dune areas, or on dunes and dune vegetation seaward of a dune protection line which are caused by an action and occur at the same time and place; and indirect effects-those impacts on beach use and access, on critical dune areas, or on dunes and dune vegetation seaward of a dune protection line which are caused by an action and are later in time or farther removed in distance than a direct effect, but are still reasonably foreseeable. Indirect effects 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. "Effects" and "impacts" as used in this subchapter are synonymous. "Effects" may be ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Eroding area-A portion of the shoreline which is experiencing an historical erosion rate of greater than two feet per year based on published data of the University of Texas at Austin, Bureau of Economic Geology. Local governments may establish an "eroding area boundary" in beach/dune plans; this boundary shall be whichever distance landward of the line of vegetation is greater: 200 feet, or the distance determined by multiplying 50 years by the annual historical erosion rate (based on the most recent data published by the University of Texas at Austin, Bureau of Economic Geology). Erosion-The wearing away of land or the removal of beach and/or dune sediments by wave action, tidal currents, wave currents, drainage, 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 structure built for shoreline stabilization which includes, but is not limited to, a jetty, groin, breakwater, bulkhead, seawall, riprap, rubble mound, revetment, or the foundation of a structure which is the functional equivalent of these specified structures. FEMA-The United States Federal Emergency Management Agency. This agency administers the National Flood Insurance Program and publishes the official flood insurance rate maps. Foredunes-The first clearly distinguishable, usually vegetated, stabilized large dunes encountered landward of the 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 may be interrupted by breaches and washover areas. Foredunes offer the first significant means of dissipating storm-generated wave and current energy issuing from the 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. Habitable structure perimeter or footprint-The area of a lot covered by a structure used or usable for habitation. The habitable structure perimeter or footprint does not include incidental projecting eaves, balconies, ground-level paving, landscaping, open recreational facilities (for example, pools and tennis courts), or other similar features. Habitable structures -Structures suitable for human habitation including, but not limited to, single or multi-family residences, hotels, condominium buildings, and buildings for commercial purposes. Each building of a condominium regime is considered a separate habitable structure, but if a building is divided into apartments, then the entire building, not the individual apartments, is considered a single habitable structure. Additionally, a habitable structure includes porches, gazebos, and other attached improvements. Industrial facilities -Include, but are not limited to, those establishments listed in Part 1, Division D, Major Groups 20-39 and Part 1, Division E, Major Group 49 of the Standard Industrial Classification Manual as adopted by the Executive Office of the President, Office of Management and Budget (1987 ed.). However, for the purposes of this subchapter, the establishments listed in Part 1, Division D, Major Group 20, Industry Group Number 209, Industry Numbers 2091 and 2092 are not considered "industrial facilities." These establishments are listed in "Appendix I" attached to this section. Figure: 31 TAC sec.15.2 Large-scale construction -Construction activity greater than 5,000 square feet in area and habitable structures greater than two stories in height. Multiple-family habitable structures are typical of this type of construction. 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 -A municipality, county, any special purpose district, any unit of government, or any other political subdivision of the state. Man-made vegetated mound-A mound, hill, or ridge of sand created by the deliberate placement of sand or sand trapping devices including sand fences, trees, or brush and planted with dune vegetation. Master plan-A plan developed by the applicant in consultation with the General Land Office, the Office of the Attorney General, the applicant or applicants, and the local government, for the development of an area subject to the beach/dune rules, as identified in sec.15.3 of this subchapter (relating to Administration). The master plan shall fully describe in narrative form the proposed development and all proposed land and water uses, and shall include maps, drawings, and tables, and other information, as needed. The master plan must, at a minimum, fully describe the general geology and geography of the site, land and water use intensities, size and location of all buildings, structures, and improvements, all vehicular and pedestrian access ways, and parking or storage facilities, location and design of utility systems, location and design of any erosion response structures, retaining walls, or stormwater treatment management systems, and the schedule for all construction activities described in the master plan. The master plan shall comply with the Open Beaches Act and the Dune Protection Act. The master plan shall provide for overall compliance with the beach/dune rules, but may vary from the specific standards, means and methods provided in the beach/dune rules if the degree of dune protection and the public's right to safe and healthy use of and access to and from the public beach are preserved. If all impacts to dunes, dune vegetation and public beach use and access are accurately identified, local governments shall not require permits or certificates for construction on the individual lots within the master plan area. Master plans are intended to provide a comprehensive option for planning along the Texas coast. Material changes -Changes in project design, construction materials, or construction methods or in the condition of the construction site which occur after an application is submitted to a local government or after the local government issues a permit or certificate. Material changes are those additional or unanticipated changes which have caused or will cause adverse effects on dunes, dune vegetation, or beach access and use, or exacerbation of erosion on or adjacent to the construction site. Mitigation sequence -The series of steps which must be taken if dunes and dune vegetation will be adversely affected. First, such adverse effects shall be avoided. Second, adverse effects shall be minimized. Third, the dunes and dune vegetation adversely affected shall be repaired, restored, or replaced. Fourth, the dunes and dune vegetation adversely affected shall be replaced or substituted to compensate for the adverse effects. 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, property, and adequate beach use and access rights (consistent with the Dune Protection Act) which a permittee must satisfy 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. Pipeline-A tube or system of tubes used for the transportation of oil, gas, chemicals, fuels, water, sewerage, or other liquid, semi-liquid, or gaseous substances. Practicable-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. Production and gathering facilities-The equipment used to recover and move oil or gas from a well to a main pipeline, such as a tank battery, and to place such oil or gas into marketable condition. Included are pipelines used as gathering lines, pumps, tanks, separators, compressors, and associated equipment and roads. Project area-The portion of a site or sites which will be affected by proposed construction. Public beach-As used in this subchapter, "public beach" is defined in the Texas Natural Resources Code, sec.61.013(c). Recreational activity -Includes, but is not limited to, hiking, sunbathing, and camping for less than 21 days. As used in sec.15.3(s)(2) (C) of this title (relating to Administration), recreational activities are limited to the private activities of the person owning the land and the social guests of the owner. Operation of recreational vehicles is not considered a recreational activity, whether private or public. Recreational vehicle -A dune buggy, marsh buggy, minibike, trail bike, jeep, or any other mechanized vehicle used for recreational purposes. Restoration-The process of constructing man-made vegetated mounds, repairing damaged dunes, or vegetating existing dunes. Retaining wall -A structure designed to contain or which primarily contains material or prevents the sliding of land. Retaining walls may collapse under the forces of normal wave activity. 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. Seawall-An erosion response structure specifically designed to or which will withstand wave forces. Seaward of a dune protection line-The area between a dune protection line and the line of mean high tide. Small-scale construction -Construction activity less than or equal to 5,000 square feet and habitable structures less than or equal to two stories in height. Single-family habitable structures are typical of this type of construction. 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. Swales-Low areas within a dune complex located in some portions of the Texas coast which function as natural rainwater collection areas and are an integral part of the dune complex. Unique flora and fauna-Endangered or threatened plant or animal species listed at 16 United States Code Annotated, sec.1531, the Endangered Species Act of 1973, and/or the Parks and Wildlife Code, Chapter 68, or any plant or animal species that a local government has determined in their local beach/dune plan are rare or uncommon. Washover areas -Low areas that are adjacent to beaches and are inundated by waves and storm tides from the Gulf of Mexico. Washovers may be found in abandoned tidal channels or where foredunes are poorly developed or breached by storm tides and wind erosion. sec.15.3. Administration. (a) 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 and from 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. The authority to integrate such plans is provided pursuant to the Dune Protection Act, the Open Beaches Act, and this subchapter. The local government 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. (b) Boundary of the public beach. The public beach is defined in the Open Beaches Act, sec.61.013(c), and sec.15.2 of this title (relating to Definitions). The line of vegetation is defined in the Open Beaches Act, sec.61. 001(5), and sec.15.2 of this title (relating to Definitions). The line of vegetation is typically used to determine the landward extent of the public beach. However, there are portions of the Texas coast where there is no marked vegetation line or the line is discontinuous or modified. In those portions of the coast, the line of vegetation shall be determined consistent with sec.15. 10(b) of this title (relating to General Provisions) and the Open Beaches Act, sec.61.016 and sec.61.017. (c) Beachfront construction certification areas. The General Land Office, in conjunction with the attorney general's office, has the responsibility of protecting the public's right to use and have access to and from the public beach and of providing standards to the local governments certifying construction on land adjacent to the 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 generally parallel to the public beach or to any closer public road not parallel to the beach, or the area up to 1, 000 feet of mean high tide, whichever distance is greater. For this area, local governments shall prepare a beach access and use program, pursuant to the Open Beaches Act, sec.61.015, for inclusion in their dune protection and beach access plans to control any adverse effects of beachfront construction on public beach use and access. Applications for beachfront construction certificates shall be reviewed by local governments for consistency with their dune protection and beach access plans. (d) Critical dune areas and dune protection lines. The commissioner of the General Land Office, as trustee of the public lands 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, limits 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. (e) Identification of critical dune areas. Pursuant to the authority provided in the Dune Protection Act, sec.63.121, the General Land Office has identified critical dune areas as all dunes and dune complexes located within 1,000 feet of mean high tide of the Gulf of Mexico. This identification is based on the determination that all of the various protective functions served by the dunes and dune complexes located within that 1,000 feet are essential to the protection of public beaches, submerged land, and state-owned land, such as public roads and coastal public lands, from nuisance, erosion, storm surge, and high wind and waves. Critical dune areas are related to dune protection lines in that local governments are required to establish such lines for the purpose of preserving dunes in a location landward of all critical dune areas. Criteria for establishing dune protection lines shall, at a minimum, include the criteria for establishing critical dune areas in this subsection. (f) Establishment of dune protection lines. Pursuant to the authority provided in the Dune Protection Act, sec.63.011, local governments shall establish and maintain dune protection lines which preserve, at a minimum, the dunes within the critical dune areas as defined in this subchapter. A local government must conduct a field inspection to determine the appropriate location of the line unless it proposes to establish or relocate its line at a distance of 1,000 feet of mean high tide of the Gulf of Mexico, as that 1,000 feet is the maximum extent of the local government's jurisdiction for establishing dune protection lines. (g) Deadline for establishment of dune protection lines. Local governments shall establish dune protection lines as part of the dune protection component of their local plans. The local plans shall be submitted to the state no later than 180 days after the effective date of this subchapter. Therefore, local governments shall establish dune protection lines no later than 180 days after this subchapter goes into effect. (h) Information required regarding dune protection lines. Local governments are required to submit the following information to the General Land Office to allow state evaluation of the adequacy of the dune protection line location: a map or drawing of the line; a written description of the line; or a written description and a map or drawing. This information shall be included in the local government's dune protection and beach access plan and must clearly designate for the public and the state the location of the line and the location of dunes seaward of the line. All maps, drawings, or descriptions shall incorporate sufficient elements of the Texas State Plane Coordinate System to enable such description to be located on the ground and shall be tied to and/or include the Texas State Plane Coordinates for two or more monumented points along any described boundary. Each local government shall file a map or drawing or description of its dune protection line with the clerk of the county or municipality establishing the line. (i) State assistance in the establishment of local government dune protection lines. The General Land Office may assist and advise local governments in establishing or modifying a dune protection line. Pursuant to the Dune Protection Act, sec.63. 013, local governments shall notify the General Land Office of the establishment of dune protection lines and any subsequent change in a line. Upon such notification, the General Land Office shall review the location of the line by examining the map or description of the line submitted to the state and by conducting field inspections, as necessary. The General Land Office will review the location of the line to determine whether the line meets the geographic standard of being located landward of all critical dune areas. If the General Land Office is satisfied that the line meets that geographic standard, the General Land Office will notify the local government of this finding in writing. If the line does not meet that geographic standard, the General Land Office will assist and advise the local government in adjusting the line. (j) State review of dune protection line location. Each local government shall submit the information regarding the location of the dune protection line, as required in subsection (h) of this section, to the General Land Office as part of its dune protection and beach access plan. In determining whether to approve the local plan, the General Land Office will review the various components of the plan, including the adequacy of the location of a local government's dune protection line (with respect to the protection of critical dune areas), based on the geographic standards provided in subsection (i) of this section. (k) Local government review of dune protection line location. Each local government shall review its dune protection line every five years to determine whether the line is adequately located to achieve the purpose of preserving critical dune areas. In addition to the five-year review, each local government shall review the adequacy of the location of the line within 90 days after a tropical storm or hurricane affects the portion of the coast in its jurisdiction. (l) Provisions for public hearings on dune protection lines. Local governments shall provide notice of a public hearing to consider establishing or modifying 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 than 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. In the notice to the General Land Office, local governments shall also include the information described in subsection (h) of this section. (m) Local government authority. Local governments shall include in the plans submitted to the General Land Office and the attorney general's office citations of all statutes, 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 (if participating in the National Flood Insurance Program under the National Flood Insurance Act). Each local government shall integrate these programs into one plan for the management of the beach/dune system within its jurisdiction. The General Land Office will provide written guidance on the form and content of the plan upon written request by a local government. (n) Content of local government dune protection and beach access plans. Local government plans shall contain procedural mechanisms and substantive requirements necessary for compliance with this subchapter, the Dune Protection Act, and the Open Beaches Act. Local governments shall attach copies of this subchapter, the Dune Protection Act, and the Open Beaches Act to their plans, and their plans shall state that these state laws are incorporated into the plans. A local government shall also state in its plan that any person in violation of the incorporated state laws is in violation of its local plan. (o) 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 this subchapter, the Dune Protection Act, and the Open Beaches Act and to the attorney general's office for review and comment. A local government's governing body must formally approve the plan prior to submission to the state agencies. Prior to formally approving its plan, a local government may request legal and technical advice from the General Land Office for assistance in meeting the requirements for state agency approval. The General Land Office shall either grant or deny certification of a local government's formally approved 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 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. The General Land Office shall use the same procedure for reviewing revised plans as the procedure used for reviewing the plan originally submitted. 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. The rules adopted by the General Land Office to certify plans will consist of state approval of the plans, but the text of plans will not be adopted by the General Land Office. Local governments may amend their dune protection and beach access plans by submitting the proposed changes to the General Land Office for review, comment, and certification and to the attorney general's office for review and comment. The General Land Office shall process the proposed plan amendments using the same procedures and criteria as used in approving the initial submissions. (p) Submission deadline for dune protection and beach access plans. Local governments shall submit dune protection and beach access plans to the General Land Office and the attorney general's office no later than 180 days from the effective date of this subchapter. If the General Land Office does not approve a plan, the local government shall submit revisions of the plan until the plan is approved. However, any local government that submits a revised plan that has not been modified to address the state comments regarding the statutory requirements and the minimum standards identified in this subchapter is presumed to be in violation of this subchapter, the Open Beaches Act, and the Dune Protection Act. Local governments that fail to submit plans within 180 days of the effective date of this subchapter will be liable for penalties as provided in sec.15.9 of this title (relating to Penalties). Further, local governments that fail to submit plans by that deadline will not be authorized to permit construction within the geographic scope of this subchapter. (q) 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) national park areas, national wildlife refuges, or other designated national natural areas; (2) state park areas, state wildlife refuges, or other designated state natural areas; and (3) beaches on islands and peninsulas not accessible by public road or ferry facility for as long as that condition exists. (r) State-owned or public land not exempt from local government plans. Local government plans shall apply to all state-owned or public land other than parks and refuges, subject to the provisions of the Texas Natural Resources Code, sec.sec.31.161, et seq. (s) Acts prohibited without a dune protection permit or beachfront construction certificate. An activity requiring a dune protection permit may typically also require a beachfront construction certificate and vice versa. Local governments shall, whenever possible, issue permits and certificates concurrently when an activity requires both. In their dune protection and beach access plans, local governments may combine the dune protection permit and the beachfront construction certificate into a single permit or a two-part permit; however, they are not required to do so. (1) Acts prohibited without a dune protection permit. Unless a dune protection permit is properly issued by a local government 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 Dune Protection Act, 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. Where local governments have separate authority to regulate the following activities, permittees shall comply with the local laws as well. The activities exempt from the permit requirements are: (A) exploration for and production of oil and gas and reasonable and necessary activities directly related to such exploration and production, including construction and maintenance of production and gathering facilities located in a critical dune area which serve wells located outside of a critical dune area, provided that such facilities are located no farther than two miles from the well being served; (B) grazing livestock and reasonable and necessary activities directly related to grazing; and (C) recreational activities other than operation of a recreational vehicle. (3) Acts prohibited without a beachfront construction certificate. No person shall cause, engage in, or allow construction on land adjacent to and landward of public beaches and lying in the area either up to the first public road generally parallel to the public beach or to any closer public road not parallel to the beach, or to within 1, 000 feet of mean high tide, whichever is greater, that affects or may affect public use of and access to and from public beaches unless the construction is properly certified by the appropriate local government as consistent with its local plan, this subchapter, and the Open Beaches Act. (4) Permit and certificate application requirements. Local governments shall require that all permit and certificate applicants fully disclose in the application all items and information necessary for the local government to make a determination regarding a permit or certificate. Local governments 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) Permit application requirements for large-and small-scale construction. For all proposed construction, local governments shall require applicants to submit the following items and information: (i) the name, address, phone number, and, if applicable, fax number of the applicant, and the name of the property owner, if different from the applicant; (ii) a complete legal description of the tract and a statement of its size in acres or square feet; (iii) the number of proposed structures and whether the structures are amenities or habitable structures; (iv) the number of parking spaces; (v) the approximate percentage of existing and finished open spaces (those areas completely free of structures); (vi) the floor plan and elevation view of the structure proposed to be constructed or expanded; (vii) the approximate duration of the construction; (viii) a description (including location) of any existing or proposed walkways or dune walkovers on the tract; (ix) a grading and layout plan identifying all elevations (in reference to the National Oceanic and Atmospheric Administration datum), existing contours of the project area (including the location of dunes and swales), and proposed contours for final grade; (x) photographs of the site which clearly show the current location of the vegetation line and the existing dunes on the tract; (xi) the effects 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, alteration of dune size and shape, and changes to dune hydrology; (xii) a comprehensive mitigation plan which includes a detailed description of the methods which will be used to avoid, minimize, mitigate and/or compensate for any adverse effects on dunes or dune vegetation; (xiii) proof of the applicant's financial capability acceptable to the local government to mitigate or compensate for adverse effects on dunes and dune vegetation; (xiv) an accurate map, site plan, or plat of the site identifying: (I) the site by its legal description, including, where applicable, the subdivision, block, and lot; (II) the location of the property lines and a notation of the legal description of adjoining tracts; (III) the location of the dune protection line, the line of vegetation, proposed and existing structures, and the project area of the proposed construction on the tract; (IV) proposed roadways and driveways and proposed landscaping activities on the tract; (V) the location of any seawalls or any other erosion response structures on the tract and on the properties immediately adjacent to the tract; and (VI) if known, the location and extent of any man-made vegetated mounds, restored dunes, fill activities, or any other pre-existing human modifications on the tract. (B) Certificate application requirements for large-and small-scale construction. For all proposed construction, local governments shall require applicants to submit the following items and information: (i) the name, address, phone number, and, if applicable, fax number of the applicant, and the name of the property owner, if different from the applicant; (ii) a complete legal description of the tract and a statement of its size in acres or square feet; (iii) the number of proposed structures and whether the structures are amenities or habitable structures; (iv) a statement written by the applicant affirming that the construction, the completed structure, and use of or access to and from the structure will not adversely affect the public beach or public beach access ways or exacerbate erosion; (v) the approximate duration of the construction; (vi) a description (including location) of any existing or proposed walkways or dune walkovers in the tract; (vii) photographs of the site which clearly show the current location of the vegetation line and any dunes on the tract which are seaward of the dune protection line; (viii) an accurate map, site plan, or plat of the site identifying: (I) the site by its legal description, including, where applicable, the subdivision, block, and lot; (II) the location of the property lines and a notation of the legal description of adjoining tracts; (III) the location of the proposed construction and the distance between the proposed construction and mean high tide, the vegetation line, the dune protection line, and the landward limit of the beachfront construction area; (IV) the location of proposed and existing structures, and the size (in acres or square feet) of the proposed project area; (V) proposed roadways and driveways; (VI) proposed landscaping activities within 200 feet of the line of vegetation; and (VII) the location of any retaining walls or erosion response structures on the tract and on the properties immediately adjacent to the tract and within 100 feet of the common property line. (C) Permit and certificate applications for large-scale construction. For all proposed large-scale construction, local governments shall require applicants to submit the following additional items and information: (i) if the tract is located in a subdivision and the applicant is the owner or developer of the subdivision, a certified copy of the recorded plat of the subdivision, or, if not a recorded subdivision, a plat of the subdivision certified by a licensed surveyor, (if the area is located within an un-platted tract, a survey will suffice) and a statement of the total area of the subdivision in acres or square feet; (ii) in the case of multiple-unit dwellings, the number of units proposed; (iii) alternatives to the proposed location of construction on the tract or to the proposed methods of construction which would cause fewer or no adverse effects on dunes and dune vegetation or less impairment of beach access; and (iv) the proposed activity's impact on the natural drainage pattern of the site and the adjacent lots. (D) Submission of readily available information with permit and certificate applications. For all proposed construction (large and small-scale), if applicants already have the following items and information, local governments shall require them to be submitted in addition to the other information required: (i) the most recent local historical erosion rate data (as determined by the University of Texas at Austin, Bureau of Economic Geology) and the activity's potential impact on coastal erosion; and (ii) a copy of the FEMA "Elevation Certificate." (E) Submission of information by local governments. For all proposed construction (large and small-scale), local governments shall provide to the state the following information: (i) a copy of the community's most recent flood insurance rate map identifying the site of the proposed construction; (ii) a preliminary determination as to whether the proposed construction complies with all aspects of the local government's dune protection and beach access plan; (iii) the activity's potential impact on the community's natural flood protection and protection from storm surge; (iv) a description as to 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 public beach ingress/egress, off-beach parking, and avoidance of reduction in the size of the public beach due to erosion; and (v) copies of aerial photographs of the proposed construction site with a delineation of the footprint of the proposed construction, if the local government has aerial photographs of the area in which construction is proposed. (F) Dissemination of erosion data and other technical information. For all proposed construction (large and small-scale), the General Land Office shall be the state contact for erosion rate data questions and supply available technical information to a local government, upon request. (5) Master plan. Local governments may adopt separate ordinances or county commissioners court orders authorizing master plans located within the geographic scope of this subchapter. These ordinances and orders shall be consistent with and address the dune protection and beach access requirements of this subchapter, the Dune Protection Act and Open Beaches Act. The ordinances and orders shall be submitted to the General Land Office and the attorney general's office for review and approval to ensure consistency with this subchapter. When considering approval of a master planned development or construction plans and setting conditions for operations under such plans, local governments shall consider: (A) the plan's potential effects on dunes, dune vegetation, public beach use and access, and the applicant's proposal to mitigate for such effects throughout the construction; (B) the contents of the master planned development; and (C) whether any component of the master plan, such as installation of roads or utilities, or construction of structures in critical dune areas or seaward of a dune protection line, will subsequently require a dune protection permit or a beachfront construction certificate. If a dune protection permit or beachfront construction certificate will be necessary, the local government shall require the developer to apply for the permit and/or certificate as part of the master plan approval process. This requirement only applies if the local government is authorizing activities impacting critical dune areas and public beach use and access under its dune protection and beach access plan. (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 and the attorney general's office. The application, any documents associated with the application, and information as to when the decision will be made must be received by the General Land Office and the attorney general's office no later than 10 working days before the local government is first scheduled to act on the permit or certificate. Local governments shall not act on a permit or certificate application if the General Land Office and the attorney general's office have not received the application for the permit or certificate at least 10 working days before the local government is first scheduled to act on the permit or certificate. However, a local government may act on such applications if the state agencies received the application within the proper time frame and the state does not submit comments on the application to the local government. (B) The General Land Office and the attorney general's office may submit comments on the proposed activity to the local government. (7) Local government review. When determining whether to approve a proposed activity, a local government shall review and consider: (A) the permit or certificate application; (B) the proposed activity's consistency with this subchapter and the local government's dune protection and beach access plan, including the dune protection and beachfront construction standards contained in both; (C) any other law relevant to dune protection and public beach use and access 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, including resource information made available to them by federal and state natural resource entities. A local government shall not issue a dune protection permit or beachfront construction certificate that is inconsistent with its plan, this subchapter, and other state, local, and federal laws related to the requirements of the Dune Protection Act and Open Beaches Act. (t) Term and renewal of permits and certificates. (1) A local government's dune protection permits or beachfront construction certificates shall be valid for no more than three years from the date of issuance. A local government may renew a dune protection permit or beachfront construction certificate allowing proposed construction to continue if the activity as proposed in the application for renewal meets the applicable state and local standards and the permittee supplements the information provided in the original permit or certificate application materials with additional information indicating any changes to the original information provided by the applicant. For the purpose of maintaining administrative records for permits, certificates, and renewals, if any, local governments are required to keep all original application materials submitted by any applicant for three years, as provided in subsection (u) of this section. Each renewal of a permit and certificate allowing construction shall be valid for no more than 90 days. A local government shall issue only two renewals for each permit or certificate. After the local government issues two renewals, the permittee must apply for a new permit or certificate. In addition, local governments shall require a permittee to apply for a new permit or a certificate if the proposed construction is changed in any manner which causes or increases adverse effects on dunes, dune vegetation, and public beach use and access within the geographic scope of this subchapter. (2) Local governments that choose to authorize master plans may adopt a different term limit for permits and certificates only if the master plans are authorized under a separate, state-approved ordinance or county commissioners court order. Each master plan will be deemed to be a new local ordinance or county commissioners court order subject to state approval regarding effects on dunes, dune vegetation, and public beach use and access. (3) Any dune protection permit or beachfront construction certificate allowing beachfront construction issued by a local government pursuant to its dune protection and beach access plan shall be voidable under the following circumstances. (A) The permit or certificate is inconsistent with this subchapter or the local government's plan at the time the permit or certificate was issued. (B) A material change occurs after the permit or certificate is issued. (C) A permittee fails to disclose any material fact in the application. (4) A local government shall require that a permittee apply for a new permit or certificate in the event of any material changes. A local government shall require that an applicant modify an application disclosing all information relevant to the material changes, if such changes occur before the local government issues the permit or certificate. (5) A permit or certificate automatically terminates in the event the certified construction comes to lie within the boundaries of the public beach by artificial means or 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 time. (u) Administrative record. (1) Local governments shall compile and maintain an administrative record which demonstrates the basis for each final 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 transcripts, if any, or the minutes and/or tape of the local government's meeting during which a final decision regarding 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 three years from the date of a final decision on a permit or certificate. Local governments shall send to the General Land Office or the attorney general's office, upon request by either agency, a copy of those portions of the administrative record that were not originally sent to those agencies for permit or certificate application review and comment. The record must be received by the appropriate agency no later than 10 working days after the local government receives the request. The state agency reviewing the administrative record shall notify the appropriate permittee of the request for a copy of the administrative record from the local government. Upon request of the permittee, a local government shall provide to the permittee copies of any materials in the administrative record regarding the permit or certificate which were not submitted to the local government by the permittee (i.e., the permit application) or given to the permittee by the local government (i.e., the permit). sec.15.6. 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 beachfront construction certificates. This section applies to all construction within the geographic scope of this subchapter and to either permits or certificates or both. The requirements of this section are in addition to the requirements in sec.15.4 of this title (relating to Dune Protection Standards), and sec.15.5 of this title (relating to Beachfront Construction Standards). (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 may aggravate erosion. (c) Prohibition of erosion response structures. Local governments shall not issue a permit or certificate allowing construction of an erosion response structure. However, a local government may issue a permit or certificate authorizing construction of a retaining wall, as defined in sec.15.2 of this title (relating to Definitions), under the following conditions. These conditions only apply to the construction of a retaining wall; all other erosion response structures are prohibited. (1) A local government shall not issue a permit authorizing the construction of a retaining wall within the area 200 feet landward of the line of vegetation. (2) A local government may issue a permit authorizing construction of a retaining wall in the area more than 200 feet landward of the line of vegetation. (d) Existing erosion response structures. In no event shall local governments issue permits or certificates authorizing maintenance or repair of an existing erosion response structure on the public beach or the enlargement or improvement of the structure within 200 feet landward of the natural vegetation line. Also within 200 feet landward of the natural vegetation line, 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) When failure to repair the structure will cause unreasonable hazard to a public building, public road, public water supply, public sewer system, or other public facility immediately landward of the structure. (2) When failure to repair the structure will cause unreasonable flood hazard to habitable structures because adjacent erosion response structures will channel floodwaters to the habitable structure. (e) 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 and mangrove stands within Zones V1-30, V, and VE on the community's flood insurance rate maps which would increase the potential for flood damage. (2) A local government 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. (3) A local government shall not issue a permit or certificate that does not comply with FEMA minimum requirements or with the FEMA-approved local ordinance or county commissioners court order. (f) Construction in eroding areas. Local governments with jurisdiction over eroding areas shall follow the standards provided in sec.15.4 of this title (relating to Dune Protection Standards) and to sec.15.5 of this title (relating to Beachfront Construction Standards). If there is any conflict between this subsection, sec.15.4 of this title (relating to Dune Protection Standards, and sec.15.5 of this title (relating to Beachfront Construction Standards, this subsection applies. The General Land Office shall supply information for or assist a local government in determining eroding areas and the landward boundary of eroding areas. In addition, because of the higher risk of damage from flooding or erosion in such areas, local governments shall: (1) require that structures built in eroding areas be elevated on pilings in accordance with FEMA minimum standards or above the natural elevation (whichever is greater); (2) require that structures located on property adjacent to the public beach be designed for feasible relocation; (3) allow a permittee to alter or pave only the ground within the footprint of the habitable structure (however, brick pavers, gravel or crushed limestone may be used to stabilize driveways) only if the alteration or paving will be entirely undertaken, constructed, and located landward of 200 feet from the line of vegetation or landward of an eroding area boundary established in the local beach/dune plan, whichever distance is greater; and (4) Unless otherwise restricted by the local plan, and if consistent with the requirements of the National Flood Insurance Program, local governments may permit the construction of breakaway or louvered walls for a storage area no larger than 300 square feet. (g) Construction affecting natural drainage patterns. Local governments shall not issue a certificate or permit authorizing construction unless the construction activities will minimize impacts on natural hydrology. Such projects shall not cause erosion of adjacent properties, critical dune areas, or the public beach. (h) Emergency response to oil or hazardous substance spills. Any person responding to spills shall comply with the following regulations when cleaning up or disposing of oil or hazardous substances in the beach/dune system. (1) The state on-scene coordinator is responsible for contacting the GLO Resource Management Division regarding proposed cleanup and disposal methods. (2) The state on-scene coordinator shall, in consultation with the state natural resource trustees and through the Incident Command System, determine the appropriate depth for excavation and the appropriate quantity of sand to be removed, if any, from the beach/dune system. (A) Spill cleanup. Cleanup methods shall avoid and otherwise minimize adverse impacts to the beach/dune system by ensuring that: (i) Removal of sand from the beach is limited to the absolute minimum and will not exacerbate shoreline erosion. (ii) Manual cleanup methods are used, if practicable. (iii) Grading or scraping of the beach is minimized, and grading of non-oiled or non-hazardous areas is prohibited. (B) Disposal of contaminated sand. Disposal methods shall avoid adverse impacts to the beach/dune system by ensuring that: (i) Before any scraped sand is relocated within the beach/dune system, the material shall be tested for toxicity and percent of oiling. Only material that does not pose a threat to human health and the environment may remain in the beach/dune system. New dunes (man-made mounds) may be built with non-hazardous material provided that they are built in accordance with sec.15.7(e) of this title (relating to Restored dunes on public beaches) and placed in areas preapproved by the state natural resource trustees. A dune protection permit is not required for such new dune creation. The disposal shall be in accordance with applicable, relevant and appropriate requirements established by local state and federal laws. (ii) Hazardous materials shall be removed and disposed of as required by local state and federal laws. (iii) Disposal of waste must be in compliance with applicable state and federal laws and regulations of the Texas Natural Resources Conservation Commission and the United States Environmental Protection Agency. Disposal of oiled, non-hazardous sand shall be in accordance with applicable state and federal law, except that such sand shall not be disposed of in a location on or adjacent to dune vegetation, as defined in sec.15.2 of this title (relating to Definitions). sec.15.7. 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. Local governments shall encourage carefully planned beach nourishment and sediment bypassing for erosion response management and prohibit erosion response structures within the public beach and 200 feet landward of the natural vegetation line. (c) Monitoring. A local government or the state may require a permittee to conduct or pay for a monitoring program to study the effects of a coastal and shore protection project on the public beach. Further, permittees are required to notify the state and the appropriate local government of any discernible change in the erosion rate on their property. (d) Requirements for beach nourishment projects. A local government shall not allow a beach nourishment project unless it finds and the project sponsor demonstrates that the following requirements are met. (1) The project is consistent with the local government's dune protection and beach access plan. (2) The sediment to be used is of effective grain size, mineralogy, and quality or the same as the existing beach material. (3) The proposed nourishment material does not contain any of the hazardous substances listed in the Code of Federal Regulations, Volume 40, Part 300, in concentrations which are harmful to human health or the environment as determined by applicable, relevant, and appropriate requirements established by the local, state, and federal governments. (4) There will be no adverse environmental effects on the property surrounding the area from which the sediment will be taken or to the site of the proposed nourishment. (5) The removal of sediment will not have any adverse impacts on flora and fauna. (6) There will be no adverse effects caused from transporting the nourishment material. (e) Restored dunes on public beaches. Sand dunes, either naturally created or restored, may aid in the preservation of the common law public beach rights by slowing beach erosion processes. Except as otherwise provided, local governments shall allow restoration of dunes on the public beach only under the following conditions. Restored dunes may be located farther seaward than the 20-foot restoration area only upon an affirmative demonstration by the permit applicant that substantial dunes would likely form farther seaward naturally. Such seaward extension past the 20-foot area must first receive prior written approval of the General Land Office and the attorney general's office. In the absence of such an affirmative demonstration by the applicant, a local government shall require the applicant to meet the following standards relating to the location of restored dunes. (1) Local governments shall require persons to locate restored dunes in the area extending no more than 20 feet seaward of the landward boundary of the public beach. Local governments shall ensure that the 20-foot restoration area follows the natural migration of the vegetation line. (2) Local governments shall not allow any person to restore 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) Local governments shall require persons to restore dunes to be continuous with any surrounding naturally formed dunes and shall approximate the natural position, contour, volume, elevation, vegetative cover, and sediment content of any naturally formed dunes in the proposed dune restoration area. (4) Local governments shall require persons restoring dunes to use indigenous vegetation that will achieve the same protective capability as the surrounding natural dunes. (5) Local governments shall not allow any person to restore dunes using any of the following methods or materials: (A) hard or engineered structures; (B) materials such as bulkheads, riprap, concrete, or asphalt rubble, building construction materials, and any non-biodegradable items; (C) fine, clayey, or silty sediments; (D) sediments containing the toxic materials listed in Volume 40 of the Code of Federal Regulations, Part 302.4 in concentrations which are harmful to people, flora, and fauna as determined by applicable, relevant, and appropriate requirements for toxicity standards established by the local, state, and federal governments; and (E) sand obtained by scraping or grading dunes or the beach. (6) Local governments may allow persons to use the following dune restoration 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; (C) organic brushy materials such as used Christmas trees; and (D) sand obtained by scraping accreting beaches only if the scraping is approved by the local government and the project is monitored to determine any changes that may increase erosion of the public beach. (7) Local governments shall protect restored dunes under the same restrictions and requirements as natural dunes under the local government's jurisdiction. All applications submitted to a local government for restoring dunes on the public beach shall be forwarded to both the General Land Office and the attorney general's office at least ten 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 shall not waive, diminish, or otherwise modify the beach access and use rights of the public. (8) Local governments shall not allow a permittee to construct or maintain a private structure on the restored dunes within critical dune areas or seaward of a dune protection line, except for specifically permitted dune walkovers or similar access ways. (f) Scientific research projects. Local governments may exempt a scientific research project from the requirements of sec.15.4(c) or sec.15.7(e) provided the research is conducted by an academic institution or state, federal, or local government. Prior to conducting the research, the project manager shall submit a detailed work plan and monitoring plan for approval by the General Land Office and the Office of the Attorney General. The research activities shall not materially weaken existing dunes or dune vegetation, or increase erosion of adjacent properties. (g) Dune walkovers. Local governments shall only allow dune walkovers, including other similar beach access mechanisms, which extend onto 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 and locate 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 relocate walkovers to follow any landward migration of the public beach or seaward migration of dunes using the following procedures and standards. (A) After a major storm or any other event causing significant landward migration of the landward boundary of the public beach, local governments shall require permittees to shorten any dune walkovers encroaching on the public beach to the appropriate length for removal of the encroachment. This requirement shall be contained as a condition in any permit and certificate issued authorizing construction of walkovers. Local governments are required to assess the status of the public beach boundary within 30 days after a major storm or other event causing significant landward migration of the public beach. After the assessment, local governments shall inform the General Land Office and the attorney general's office of any encroachments on the public beach within ten days of completing the assessment. (B) In cases where the migration of the landward boundary of the public beach occurs slowly over a period of time or where a dune walkover needs to be lengthened because of the seaward migration of dunes, the permittee shall apply for a permit or certificate authorizing the modification of the structure. (h) Preservation and enhancement of public beach use and access. A local government shall regulate pedestrian or vehicular beach access, traffic, and parking on the beach only in a manner that preserves or enhances existing public right to use and have access to and from the beach. A local government 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) For the purposes of this subchapter, beach access and use is presumed to be preserved if the following criteria are met. (A) Parking on or adjacent to the beach is adequate to accommodate one car for each 15 linear feet of beach. (B) Where vehicles are prohibited from driving on and along the beach, ingress/egress access ways are no farther apart than 1/2 mile. (C) Signs are conspicuously posted which explain the nature and extent of vehicular controls, parking areas, and access points. Local governments may establish their own beach access and use standards for General Land Office approval and certification based upon the General Land Office's affirmative finding that such standards preserve and enhance the public's right to use and access the public beach. (2) A local government 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 an alternative equivalent or better beach access is first provided by the local government consistent with its dune protection and beach access plan. (3) This provision does not apply to any existing local government traffic regulations enacted before the effective date of this subchapter, and the former law is continued in effect until the regulations are amended or changed in whole or in part. New or amended vehicular traffic regulations enacted for public safety, such as establishing speed limits and pedestrian rights-of-way, are exempt from the certification procedure but must nevertheless be consistent with the Open Beaches Act and this subchapter. (4) This subchapter does not prevent a local government from using its existing authority to close individual beach access points for emergencies related to public safety. However, the standards and procedures for such emergency closures shall be included in its state-approved dune protection and beach access plan. (i) Request for state agency approval of beach access plan. 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 plan replacing the existing beach access system. Such description shall demonstrate the method of providing equivalent or better access to and from the public beaches; and (4) a vehicular control plan, if the local government proposes either new or amended vehicular controls for 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 legal authority, including 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 inconsistent with the state standards for preserving and enhancing public beach access set forth in this subchapter. If a local government or the state determines 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 the attorney general's office. This plan shall include a detailed description of the means and methods of upgrading the availability of public parking and access ways, including funding for such improvements; and (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. (j) Integration of vehicular control plan and other plans. 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. (k) State agency approval of vehicular control plan adopted or amended after the effective date of this subchapter. A local government shall submit the vehicular control plan to the General Land Office and the attorney general's office no later than 90 working days prior to taking any action on the plan. This provision does not prevent a local government from exercising its existing authority over vehicular controls in emergencies. The standards and procedures for such emergency vehicular controls shall be submitted to the state in the vehicular control portion of a local government's dune protection and beach access plan. A plan may be approved if the vehicular controls are found to be consistent with the Open Beaches Act and with this subchapter. Prior to final adoption or implementation of a new or amended vehicular control ordinance, the local government shall obtain state certification of the plan for vehicular control pursuant to the Open Beaches Act, Texas Natural Resources Code, sec.61.022. (l) Maintaining the public beach. Local governments shall prohibit beach maintenance activities unless maintenance activities will not materially weaken dunes or dune vegetation or reduce the protective functions of dunes. Local governments shall prohibit beach maintenance activities which will result in the significant redistribution of sand or which will significantly alter the beach profile or the line of vegetation. All sand moved or redistributed due to beach maintenance activities shall be returned to the area between the line of vegetation and mean high tide. The General Land Office encourages the removal of litter and other debris by handpicking or raking and strongly discourages the use of machines (except during peak visitation periods which disturb the natural balance of gains and losses in the sand budget and the natural cycle of nutrients. (m) Prohibitions on signs. A local government shall not cause any person to display or cause 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 that the public does not have the right of access to and from the public beach or the right to use the public beach as guaranteed by this subchapter, the Open Beaches Act, and the common law right of the public. sec.15.10. 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 subchapter controls. Certification of a local government's 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 that 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 pursuant to the requirements of the Open Beaches Act, sec.61.016 and sec.61.017, and sec.15.3(b) of this title (relating to Administration). 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 by public road or ferry facility, in administering its plan a local government shall presume that any beach fronting the Gulf of Mexico within its jurisdiction is a public beach unless the owner of the adjacent land obtains a declaratory judgment otherwise under the Open Beaches Act, sec.61.019. That section provides that any person owning property fronting the Gulf of Mexico whose rights are determined or affected by this subchapter may bring suit for a declaratory judgment against the state to try the issue or issues. (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. Any local government with knowledge of a violation or a threatened violation of a permit, a certificate, its dune protection and beach access plan, the Dune Protection Act, the Open Beaches Act, or this subchapter shall inform the General Land Office of the violation(s) within 24 hours. (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. Without further action by the General Land Office, a local government loses, by operation of law, the authority to issue permits or certificates authorizing construction within the geographic scope of this subchapter and 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 the local government and the attorney general's office 60 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. (h) The provisions contained in this subchapter do not limit the authority of the General Land Office and the attorney general's office to enforce this subchapter, the Dune Protection Act, and the Open Beaches Act pursuant to the Texas Natural Resources Code, sec.63.181 and sec.61.018. (i) Appeals. The Dune Protection Act, sec.63.151, and the Open Beaches Act, sec.61.019, contain the provisions for appeals related to this subchapter. (j) Grandfathered plans. Nothing in the amendments shall require modifications of any dune protection and beach access plan certified on or prior to the effective date of these amendments. All permits and certificates shall be issued in accordance with the General Land Office rules for management of the beach/dune system as described in this chapter. 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. Issued in Austin, Texas, on March 26, 1996. TRD-9604259 Garry Mauro Commissioner General Land Office Effective date: April 16, 1996 Proposal publication date: September 26, 1995 For further information, please call: (512) 305-9129 31 TAC sec.15.11 The General Land Office adopts an amendment to sec.15.11, concerning certification of local government dune protection and beach access plans (plans), with changes to the proposed text as published in the September 26, 1995, version of the Texas Register (20 TexReg 7808). Section 15.11(a), (b) and (f) were changed. Pursuant to the Open Beaches Act (Texas Natural Resources Code, Chapter 61), the Dune Protection Act (Texas Natural Resources Code, Chapter 63) and the General Land Office Rules for the Management of the Beach/Dune System (beach/dune rules) (31 TAC, Chapter 15, Subchapter A), each local government with jurisdiction over public beaches adjacent to the Gulf of Mexico must submit to the General Land Office a plan to protect sand dunes and to preserve and enhance the public's right to use and have access to and from Texas' public beaches. The General Land Office must review these plans, and any subsequent plan amendments, and certify by rule the plans and amended plans which are consistent with the Open Beaches Act, Dune Protection Act and the beach/dune rules. The plans are the product of a state and local government partnership which recognizes the economic and environmental benefits of protecting the beach/dune system and preserving and enhancing the public's right to use and have access to and from Texas' public beaches. The plans are designed to assist Texans in protecting private property, structures, and public beaches from the ravages of erosion, flooding, and a dwindling sand budget. The beach/dune system is an invaluable and irreplaceable part of the fragile, dynamic ecology of the Texas coast. Sand dunes are buffers against windblown salt and spray, and are vitally important in protecting inland property against storms and floods. Sand dunes store sand which is critical to replenishing Texas' eroding beaches and the sediment budget. The local plans certified in sec.15.11 are an integral component of the effort to preserve the dynamic and fragile Texas coast. In the amendments to sec.15.11(a), the General Land Office certifies that the City of Corpus Christi and Cameron County plans are consistent with the beach/dune rules, the Open Beaches Act, and the Dune Protection Act. In the amendments to sec.15.11(b), the General Land Office withdraws conditional certification of the Kleberg County and City of Corpus Christi plans. The General Land Office withdraws conditional certification of the Kleberg County plan because the county delegated its dune protection authority to the City of Corpus Christi, and pursuant to the Open Beaches Act, sec.61.015, the City of Corpus Christi manages beachfront construction and the public beaches within Kleberg County. The General Land Office withdraws conditional certification of the City of Corpus Christi's plan because the city adopted a revised plan, which the General Land Office certifies in the amendments to sec.15.11(a). In the amendment to sec.15.11(f), the General Land Office deletes the reference to the General Land Office interim certification of the Cameron County plan, because the General Land Office certifies the county's revised plan in sec.15.11(a). No other subsections have been changed. The General Land Office has prepared a taking impact assessment (TIA) for the adoption of these amendments. The General Land Office has determined that adoption of these amendments will not result in a taking of private real property. To receive a copy of the TIA, please send a written request to Cecelia Howells, General Land Office, Legal Services Division, 1700 North Congress Avenue, Room 630, Austin, Texas 78701-1495. One comment was received regarding the proposed amendments. The City of Corpus Christi requested that the dates identified in sec.15.11 be revised to reflect the date that a local government adopted its most recent version of a plan (i.e., to ensure that subsequent amendments were certified in addition to certification of the original plan). The purpose of providing the dates was to assist citizens in locating the official versions of the various local beach/dune plans. The dates in sec.15.11(a) and (b) were provided to the General Land Office by each local government. In addition, the General Land Office is now maintaining official copies of the local plans in the General Land Office Archives. Based on this comment, the General Land Office has revised sec.15.11(a) and (b) by adding the dates identified by local governments as the dates of adoption of the plans or plan amendments being certified by the General Land Office. Section 15.11(a)(11) was amended to clarify that the Cameron County plan cannot and does not authorize encroachments on the public beach. The General Land Office's certification of the county's plan does not abrogate the specific provisions of the Open Beaches Act which address the preservation and enhancement of the public's right to use, enjoy and have access to and from the public beach. The amendment is adopted under the Texas Natural Resources Code, sec.61. 011(d)(5) and sec.63.121, which provides the General Land Office with the authority to promulgate rules, respectively, for the certification of local government beach access and use plans and for the identification and protection of critical dune areas. sec.15.11. Certification of Local Government Dune Protection and Beach Access Plans. (a) Certification of local government plans. The following local governments have submitted plans to the General Land Office which are certified as consistent with state law: (1) Brazoria County (adopted August 9, 1993, amended September 27, 1993); (2) Chambers County (adopted August 9, 1993); (3) City of Port Aransas (adopted February 15, 1995); (4) City of Port Arthur (adopted April 12, 1993); (5) Jefferson County (adopted August 16, 1993, amended March 7, 1994); (6) Matagorda County (adopted February 13, 1995); (7) Town of Quintana (adopted August 11, 1993); and (8) Village of Jamaica Beach (adopted August 16, 1993, amended December 6, 1993); (9) Town of South Padre Island (adopted October 5, 1994); (10) City of Corpus Christi (adopted August 10, 1993); and (11) Cameron County (adopted September 20, 1994). The 440-foot building line established in the Cameron County plan, Section III.I., shall not be operative unless it is landward of the line of vegetation. The line of vegetation shall be established as required in the Open Beaches Act, Texas Natural Resources Code, sec.61.017. (b) Conditional certification of local government plans. The following local governments have submitted plans to the General Land Office which are conditionally certified as consistent with state law. (1) City of Galveston (adopted August 12, 1993). This certification is valid for 180 days, during which time the City of Galveston will modify its plan consistent with the General Land Office comments submitted to the City of Galveston (October 14, 1993). (2) Galveston County (adopted August 16, 1993). This certification is valid for 180 days, during which time Galveston County will modify its plan consistent with the General Land Office comments submitted to Galveston County (October 18, 1993). (3) Village of Surfside Beach. This certification is valid for 180 days, during which time the Village of Surfside Beach will modify its plan consistent with the General Land Office comments submitted to the Village of Surfside Beach (December 3, 1993). (c) Implementation of conditionally certified plans. Local governments are required to implement conditionally certified plans consistent with the Texas Natural Resources Code, Chapters 61 and 63, and the General Land Office rules for management of the beach/dune system, sec.sec.15.1-15.10 of this chapter. (d) Removal of conditions of certification. (1) Local governments shall submit their modified plans on or before the expiration of the 180-day time period. The General Land Office shall provide to the pertinent local government a determination as to the sufficiency of the modification(s) within 60 days of receipt of the plan. The General Land Office will remove all conditions of the plan's certification by amending this subsection. Such amendments will list the name of the pertinent local government in subsection (a) of this section, and delete the same from subsection (b) of this section. If the General Land Office determines that modifications of plans are insufficient, the General Land Office shall provide specific exceptions to the modifications. If those portions of the plan to which the General Land Office has noted exceptions can be addressed through further comment, plan revision and review, conditional certification will be reissued pursuant to a General Land Office amendment to this subsection, subject to further plan modification. (2) In the event that a local government chooses not to modify its plan as requested in the General Land Office comments, the local government shall provide in writing the scientific or legal justification as to why such modifications are not feasible. The justification shall be submitted to the General Land Office on or before the due date of the revised plan. The justification will be reviewed by the General Land Office, and a determination as to the sufficiency of the justification will be provided to the local government within 60 days of receipt by the General Land Office. Local government plans shall continue in effect under conditional certification until the sufficiency of the justification is resolved or this section is amended. (e) Withdrawal of conditional certification. Conditional certification of a local government plan shall be withdrawn by the General Land Office after the 180-day time period if the pertinent local government does not submit to the General Land Office either a formally adopted plan which has been modified consistent with General Land Office comments or the written scientific or legal justification as to why such modification is not feasible. In any event, withdrawal of conditional certification shall only occur after the General Land Office adopts an amendment to this subsection withdrawing conditional certification, with accompanying specific reasons, and the General Land Office has given the pertinent local government written notice of the withdrawal of the conditional certification. (f) This section does not affect the General Land Office interim certification issued to Nueces County on October 9, 1992, as defined in sec.15.72 of this chapter (relating to Administration) which continues in effect. 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. Issued in Austin, Texas, on March 26, 1996. TRD-9604260 Garry Mauro Commissioner General Land Office Effective date: April 16, 1996 For further information, please call: (512) 305-9129 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 55. Law Enforcement Subchapter I. Disposition of Dangerous Wild Animals 31 TAC sec.sec.55.501, 55.503, 55.505 The Texas Parks and Wildlife Commission, in a regularly scheduled public hearing, March 14, 1996, adopts new sec.sec.55.501, 55.503, and 55.505, concerning disposition of dangerous wild animals. Section 55.503 and sec.55.505 are adopted with changes to the proposed text as published in the February 9, 1996, issue of the Texas Register (21 TexReg 947). Section 55.501 is adopted without changes and will not be republished. The amendment to sec.55.503 is due to the need, on occasion, to acquire the help of a licensed veterinarian if assistance is needed in euthanizing a dangerous wild animal. The amendment to sec.55.505 removes redundancy relating to the disposition of a dangerous wild animal by the court. The adopted new sections implement Senate Bill 97, enacted by the 74th Session of the Texas Legislature. The new rule allows for the Department to dispose of a live or dead dangerous wild animal that is seized as a result of a "canned hunt." When an animal is suffering due to illness or injury, the seized animal may be euthanized. If a person is convicted of a "canned hunt" violation, the seized live animal may be placed in a sanctuary or with a person who has a permit; or, if placement cannot be accomplished, then the seized animal may be euthanized. If there is no conviction, the disposition of the seized animal is decided by the court. If a person is convicted of a "canned hunt" violation and the seizure is a dead animal or animal part, then the Department may keep, destroy, or place the seizure on loan for educational display. If there is no conviction of a "canned hunt" violation, then the disposition of the seizure is decided by the court. If no decision is made by the court, then the seizure may be returned to the person from whom it was seized. Public comment was received from two individuals who attended the public hearing in Austin. One person questioned where seized animals would be placed pending court action and how long would the Department wait before euthanizing the seized animal. Staff replied that an animal seized would be placed immediately into a permitted facility, pending a conviction, and that every effort would be made to properly place an animal before the Department resorted to euthanization. The same person wanted a seized animal placed in a non-profit sanctuary or in a non-profit organization facility that holds a USDA permit. Another person wanted the euthanization performed only on an animal that was suffering and only by a licensed veterinarian. Due to the welfare of an animal that is suffering from illness or injury as a result of a "canned hunt" and the remote locations of "canned hunts," game wardens and authorized employees of the Department are essential when performing euthanization, particularly when a licensed veterinarian is not available. Upon a final conviction, all available sanctuaries and permitted facilities should be considered for placement of an animal that has been seized as a result of a "canned hunt." The new sections are adopted under authority of Parks and Wildlife Code, Chapter 62, Subchapter F, which authorizes the Commission to establish regulations for the final disposition of a carcass, hide, part, product, or live animal seized. sec.55.503. Disposition of Live Animals. (a) A game warden, or other authorized Department employee, or a licensed veterinarian acting under the direction of a game warden, may euthanize a dangerous wild animal to eliminate its suffering due to illness or injury, or if the Department is unable to locate a suitable place for the animal under subsection (b) of this section. (b) If a person is convicted of a violation of Chapter 62, Subchapter (F), Parks and Wildlife Code, the dangerous wild animal may be transferred to a sanctuary, or to a person with a permit that allows for possession of the animal. (c) If no person is convicted of a violation of Chapter 62, Subchapter (F), Parks and Wildlife Code, the dangerous wild animal shall be disposed of according to the instructions of the court. sec.55.505. Disposition of Carcass, Hide, or Part of Animal, or Product Made From Animal. (a) If a person is convicted of a violation of Chapter 62, Subchapter (F), Parks and Wildlife Code, the Department may destroy, or keep, or place on loan for use in an educational display, a carcass, hide, or part of or product made from a dangerous wild animal. (b) If no person is convicted of a violation of Chapter 62, Subchapter (F), Parks and Wildlife Code, the carcass, hide, or part of or product made from a dangerous wild animal shall be disposed of according to the instructions of the court, if any, or returned to the person from whom it was seized. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 25, 1996. TRD-9604151 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: April 15, 1996 Proposal publication date: February 9, 1996 For further information, please call: (512) 389-4642 Chapter 157. Fisheries Commercially Protected Finish 31 TAC sec.sec.57.371-57.373 The Texas Parks and Wildlife Commission, in a regularly scheduled public hearing held March 14, 1996, adopts amendments to sec. sec.57.371-57.373, concerning importation of commercially protected finfish, without changes to the proposed text as published in the December 22, 1996, issue of the Texas Register (20 TexReg 10976). The amendments as adopted remove four species of saltwater fish from the list of commercially protected finfish and implement Senate Bill 733, Acts of the 74th Texas Legislature, 1995. No comments were received regarding adoption of the amendments. The amendments are adopted under Parks and Wildlife Code, sec.66.020 which provides the Parks and Wildlife Commission's authority to regulate the importation of commercially protected finfish. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 25, 1996. TRD-9604155 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: April 15, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 389-4642