TITLE 31.NATURAL RESOURCES AND CONSERVATION

Part 16. COASTAL COORDINATION COUNCIL

Chapter 501. COASTAL MANAGEMENT PROGRAM

The Coastal Coordination Council (Council) adopts amendments to §501.14, relating to Policies for Specific Activities and Coastal Natural Resource Areas, with changes to the proposed text as published in the March 22, 2002, issue of the Texas Register (27 TexReg 2187). The Council adopts these amendments to institute policies for the construction of structural shore protection projects as recommended by the Council's Geotube Work Group (Work Group), the Executive Committee, and the General Land Office (Land Office) staff, as well as to correct spelling errors, and make minor editorial changes.

The following changes to the proposed rule have been made either as a result of comments received or as an editorial change. Section 501.14(k)(1) and §501.14(k)(2) have been changed from the proposed text. The phrase, "critical dune areas or adjacent to Gulf beaches" has been changed to "critical dune areas or areas adjacent to or on Gulf beaches." The purpose of this editorial change is to clarify that the policies for construction in the beach/dune system, see §15.2(7) of this title, apply to critical dune areas or areas adjacent to or on Gulf beaches because the headers were, geographically, more limited than the policies contained in the rule. In response to a comment, §501.14(k)(2)(C) has been changed from the proposed text, which required that a structural shore protection project be located "landward of mean higher high water," to the adopted text which states that a structural shore protection project "shall be located landward of the boundary of state-owned submerged land as determined by a coastal boundary survey conducted in accordance with Texas Natural Resources Code, §33.136." The purpose of the change is to clarify that the seaward limit of the geographic scope of these policies is the boundary of state-owned submerged land. Section 501.14(k)(2)(D)(iv) has been changed from the proposed text in response to a comment to clarify that the "pre-project" beach width is the required width to be maintained in the event beach nourishment is necessary. Finally, the word "entire" has been deleted from the proposed text of §501.14(k)(2)(K) in response to a comment because the phrase "entire beach/dune system" could be misconstrued to mean that consideration must be given to the entire Texas coast when the intent of the policy is to require consideration of all of the elements of the beach/dune system in the affected area.

Section 501.14(k)(2) adds policies concerning structural shore protection projects located in critical dune areas or areas adjacent to or on Gulf beaches. These policies are based upon recommendations developed by the Work Group. The Work Group consisted of Council members, local governments, local property owners, and other interested parties. Over the course of four meetings between March and June, 2001, the Work Group developed recommendations on the construction and placement of geotextile tube (geotube) shore protection projects. The Work Group's policy recommendations to the Council were on issues where the Work Group was able to reach consensus. Land Office staff submitted additional policy recommendations on issues where the Work Group determined that technical information beyond the Work Group's expertise was required as well as on issues where the Work Group was unable to reach consensus. The recommendations as presented to the Council are available on the Coastal Management Program (CMP) web site at: http://www.glo.state.tx.us/cccpkts/ccc010613/agenda.html. The Council approved the recommendations at its June 13, 2001, meeting in Pasadena, Texas, and the recommendations are the basis of and are incorporated into the proposed amendments.

The recommendations are generally applicable to structural shore protection projects. As a result of its consideration of technical issues, policy considerations, applicable state laws, and other states' experience with geotube projects, the Work Group developed findings and policy recommendations for the Council. The Work Group developed six findings. (1) A geotube project can be a viable tool for protecting shorefront structures from the effects of coastal erosion or high wave activity. Site specific benefits and concerns should be examined before proceeding with a project. (2) The placement of a geotube project relative to the line of mean high tide or the line of vegetation should be based on both technical and policy considerations. (3) There is a continuing need for ongoing studies to determine the impacts of geotube projects and project designs. (4) There is currently no consensus among experts or state policy makers on engineering and design criteria for a geotube project along the Gulf of Mexico or Atlantic shoreline. Each geotube project has been designed for site-specific conditions such as wave height, tidal range, and local erosion rates. (5) A geotube project is not a dune restoration project as currently defined by the Land Office. (6) Any regulatory or permitting process should allow for flexibility in the design and construction of a geotube project.

The members of the Council's Executive Committee met on August 2, October 23, and November 12, 2001, and January 29, 2002 and made subsequent recommendations and revisions to the draft amendments. In addition, staff met personally with members of the Executive Committee to discuss draft amendments. Revisions to the draft amendments as a result of these meetings are incorporated into these amendments. The policies represent the work of the consensus process of the Work Group, staff recommendations, Executive Committee recommendations, as well as amendments resulting from public comments. Work Group members were provided with opportunities to comment on working drafts of the amendments circulated between August 2001 and January 2002. Specifically §501.14(k)(2)(E), (F), (G), (J), (L), (M), and (N) are policies that are based upon the Work Group consensus, as modified by the Executive Committee. Subsections (C), (H), (I) and (K) are staff-recommended policies, as modified by the Executive Committee. Subsection (A), (B), and (O) combine both Work Group consensus language and staff recommendations as modified by the Executive Committee with minor additional changes made as clarifications in response to public comments. Finally, subsection (D) was added at the November 12, 2001, Executive Committee meeting. A public hearing to take public comments on the proposed rule was held at the University of Houston - Clear Lake on April 22, 2002, which satisfied the requirements under the Texas Government Code §2001.029, relating to Public Comment Prior to a State Agency Adopting a Rule.

The Land Office beach/dune rules, 31 TAC §15.1 through §15.10 of this title, relating to Coastal Area Planning, prohibit individuals from constructing erosion response structures for purposes of shoreline stabilization. Governmental entities, however, are not prevented from constructing structural shore protection projects as public works pursuant to the Open Beaches Act, Texas Natural Resources Code, §61.022. Section 61.022 provides that the beach access provisions of the Open Beaches Act, Subchapter B, §61.011 through §61.026, shall not be interpreted as preventing local governments from constructing structural shore protection projects, but §61.022 does not provide an exemption from the Open Beaches Act or any other laws. (When used in this preamble, the term "local governments" refers to political subdivisions of the state.) For example, when constructing structural shore protection projects, local governments must still comply with requirements imposed by the Open Beaches Act with respect to providing access where a project modifies public beach access. In addition, local governments must comply with the Dune Protection Act, Texas Natural Resources Code, Chapter 63, where impacts to dunes will result from the construction of projects, as well as other applicable state and federal statutes and rules, or requirements for federal funding for such projects.

Existing Council policies, as well as the beach/dune rules, express a preference for non-structural erosion response methods, such as beach nourishment, dune construction, sediment bypassing, nearshore sediment berms, and planting of vegetation. The U.S. Army Corps of Engineers Coastal Engineering Manual describes a geotextile tube as a form of revetment, which is a structural erosion response method. ( See http://bigfoot.wes.army.mil./PartV-Chap3.pdf). Existing Council policies, amended by this rulemaking, continue to provide that local governments shall not authorize individuals to construct a new erosion response structure within the beach/dune system, except for a retaining wall located more than 200 feet landward of the line of vegetation. This rulemaking, however, adds a new paragraph (2) to §501.14(k) to establish policies for the design, construction, and placement of structural shore protection projects by local governments and other authorized entities. The amendments to §501.14(k)(2) necessitate the addition of a reference to the structural shore protection project policies in §501.14(k)(1)(E).

Due to the interest of certain stakeholders and the activities of certain local governments with regard to geotube projects, the Council formed the Work Group in December, 2000, to develop recommended policies related to geotube projects. It was subsequently determined that the policies developed by the Work Group would be useful and applicable to structural shore protection projects in general. Thus, the amendments to §501.14(k), relating to Policies for Specific Activities and Coastal Natural Resource Areas, establish policies for structural shore protection projects, including geotube projects.

Over the course of four meetings from March to June 2001, the Work Group discussed the fact that orderly, planned, and organized development of shore protection projects was crucial to the success of such projects and the minimization of adverse effects to coastal natural resource areas. Due to the dynamic nature of the Gulf shoreline, a structural shore protection project affects not only the adjacent landowner, but the community, the public, the beach/dune system as a whole, and, depending on the placement, the public beach easement. Sections 501.14(k)(2)(A), (B), and (J) provide policies designed to ensure that structural shore protection projects are part of a comprehensive plan, carried out by and for local communities, for public benefit, and with public input. Subparagraph (G) of §501.14(k)(2) requires that projects be designed to minimize any adverse effects to adjacent beaches or properties at either end of a project. Subparagraphs (K) and (L) safeguard the long-term health of the beach/dune system and the public beach by requiring that project sponsors establish success criteria and are responsible for maintenance and, if necessary, removal of the project. Finally, subparagraph (O) requires that existing public access in the area of a structural shore protection project be replicated if not enhanced, and local governments are required to comply with the Open Beaches Act, Texas Natural Resources Code, Chapter 61, and the Land Office's beach/dune rules when impairing or closing an existing beach access point or public beach.

In addition, § 501.14(k)(2)(B) provides that a structural shore protection project shall only be used to protect community developments, public infrastructure, and for other lawful public purposes and shall not be used solely to protect individual structures or properties. A "community development" may include a neighborhood or aggregation of residences or commercial structures. This provision should not be interpreted as disallowing any structural shore protection projects that may also provide protection to private property. During the course of the Work Group sessions, it was learned that in some states "individual" geotubes or structural shore protection projects have been constructed along certain shorelines. In other words, property owners constructed a geotube or other project that existed only on or across their individual property and only for the benefit of the individual property owner. In many cases, those shore protection projects were constructed without consideration for the effects of the projects on neighboring landowners and on the beach/dune system as a whole, such as scour around the ends of a project or erosion of the beach seaward of the project. Those individual projects were not planned and developed in an orderly, organized fashion so as to obtain maximum public benefit with minimum harm to adjacent properties and the beach/dune system. The Work Group determined that the construction of such individual projects is neither in the best interest of the public nor coastal communities. Projects should be constructed for the benefit of the local community, the public, and the beach/dune system as a whole, but may at times provide the added benefit of protection of private properties located landward of a project and the local property tax base. Local governments will need to cooperate with beachfront property owners in the planning, design, and siting of structural shore protection projects.

The policies in subparagraphs (C), (D), (E), (F), (H), (I), (M), and (N) govern the technical aspects of a structural shore protection project, including location, mitigation of impacts, sand cover and vegetation, and long-term monitoring. The Work Group based these technical recommendations on personal experience and on expert technical advice. These policies incorporate the recommendations of staff and members of the Council's Executive Committee and are intended to safeguard the beach/dune system, the public beach, and the continuing interests of local coastal communities, coastal landowners, and the public as a whole. As revised based on comments on the proposed rule concerning the term "mean higher high water," subparagraph (C) requires that a structural shore protection project shall be located landward of the boundary of state-owned submerged land as determined by a coastal boundary survey conducted in accordance with Texas Natural Resources Code §33.136, and shall avoid and otherwise minimize adverse effects to dunes and dune vegetation. "Avoid and otherwise minimize" as defined in §501.3(a)(2), relating to Definitions and Abbreviations, means to "[a]void adverse effects to the greatest extent practicable" and that "adverse effects that cannot be avoided must then be minimized to the greatest extent practicable." Consequently, avoidance of adverse effects is the first priority. Avoidance may require adjustments or changes to the project or part of the project including the project location. If adverse effects cannot be avoided, impacts must be minimized by, for example, limiting the degree or magnitude of a project.

Subparagraph (D) establishes a preferred order for the placement of shore protection projects in recognition of the fact that the beachfront environment has different physical and developmental characteristics. The intent of the preferred order for the placement of shore protection projects in subparagraph (D) is to ensure that a project maximizes the protection it offers, to enhance the survivability of the project, and to minimize adverse effects to natural resources. The first preference is that, where practicable, a project shall be placed landward of the foredune ridge, when a foredune ridge is present. A "foredune ridge" is defined under the beach/dune rules as "[t]he 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." 31 TAC §15.2(36). If there is no foredune ridge in the project area, the preference is that, where practicable, a project be located landward of the line of vegetation. Where it is not practicable to locate a project landward of the line of vegetation due to the presence of existing structures or other factors, a project should be located at the line of vegetation. A project or a portion of the project may only be installed seaward of the line of vegetation where it is not practicable to locate the project landward of the line of vegetation, and even then, a project must be located at the most landward point of the public beach in order to minimize any impact to public access to and use of the public beach. The term "practicability" has been defined in §501.14(k)(1)(B). In addition, in order to install any portion of a project seaward of the line of vegetation, a project sponsor must provide financial assurance that the pre-project beach width will be maintained through beach nourishment. The pre-project beach width will be based on the beach width prior to construction of a structural shore protection project and will be documented by surveys as required for the project, as described in §501.14(k)(2)(C) and (N).

Subparagraph (E) provides that a project shall not be placed in a sea turtle nesting area or other location where the project will adversely affect an endangered species. Subparagraph (F) provides that projects shall not be constructed on stable or accreting beaches.

Section 501.14(k)(2)(H) provides that, to the extent allowed by law, a dune protection permit is required to authorize construction of a structural shore protection project in the beach/dune system. Subparagraph (I) requires a mitigation plan for any adverse effects to critical dune areas, and subparagraph (M) provides policies related to sand and vegetation cover for a structural shore protection project, where appropriate. Dune protection permits are required if, within a critical dune area, dunes or dune vegetation will be damaged. These permits are issued by local governments under the Dune Protection Act, Texas Natural Resources Code, Chapter 63, and the beach/dune rules. A critical dune area, as defined in §501.3(b)(6) of this title, relating to Definitions and Abbreviations, is a protected sand dune complex on the Gulf shoreline within 1,000 feet of mean high tide designated by the Land Commissioner under Texas Natural Resources Code, §63.121. Information regarding the location and extent of critical dune areas for a specific project may be obtained from the local government with beach/dune permitting jurisdiction for that area. Information for contacting local governments regarding permitting matters may be found at http://www.glo.state.tx.us/coastal/beachconstruct.html#contacts.

Finally, §501.14(k)(2)(N) requires long-term monitoring to determine the project's effect on the beach/dune system and the project's effectiveness. The policy requires that prior to construction of a shore protection project, a project sponsor shall collect scientifically valid baseline data for monitoring the line of vegetation, the extent of the dry beach, the beach profile, and any other characteristics necessary for evaluating a project's effectiveness. The line of vegetation is generally defined in Texas Natural Resources Code, §61.001(5), as the extreme seaward boundary of natural vegetation that spreads continuously inland. The dry beach is generally considered that area of the beach not reached by the daily waves and tides and generally extends seaward from the line of vegetation to 0.6 meters above mean sea level. The dry beach should not be confused with the public beach easement or public beach, which is generally defined by Texas Natural Resources Code, §61.013(c) as any beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the natural line of vegetation bordering on the seaward shore of the Gulf of Mexico, or such larger contiguous area to which the public has acquired the right of use or easement to or over the area by prescription, dedication, presumption, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom.

Consistency review of proposed structural shoreline protection projects by the Council could be triggered by a number of actions. These actions would include an application by a local government or other eligible project sponsor for a dune protection permit or a beachfront construction certificate, or Land Office certification of a local government beach/dune plan, subject to the thresholds set forth in the Coastal Coordination Act at Texas Natural Resources Code, §33.2053(i) and at §505.60 of this title, relating to Subdivision Actions Subject to the Coastal Management Program. Another action that would require consistency review would be a local government's application for federal financial assistance for construction of a structural shore protection project. To be found consistent, a proposed structural shore protection project must demonstrate that it is consistent with the CMP goals and policies relating to construction in the beach/dune system, §501.14(k). In addition, depending on the project's design, the proposed project may also be required to demonstrate consistency with the CMP goals and policies relating to development in critical areas, §501.14(h); construction of waterfront facilities and other structures on submerged land, §501.14(i); dredging and dredge material disposal and placement, §501.14(j); and development within Coastal Barrier Resource System units and otherwise protected areas on coastal barriers, §501.14(m).

The rule will function by providing standards and guidelines for evaluating proposed structural shore protection projects for consistency with the Coastal Management Program (CMP).

COMMENTS RELATED TO THE PREAMBLE:

One commenter, quoting language from the preamble, stated that the change from permissive language in the Work Group's working document to mandatory language in these policies, as well as the inclusion of §501.14(k)(2)(D), cannot be characterized as "spelling errors and minor editorial changes." The commenter misunderstood the language of the preamble. The corrected spelling error is in the title to §501.14 and the editorial change is in the amendment to §501.14(k)(1). The preamble identified those non-substantive changes made while the rule was being amended. The policies were identified in the preamble as substantive changes in conformance with the Council's intention to institute policies for the construction of structural shore protection projects. No change was made in response to this comment.

A commenter stated that the practical effect of adding policies for the construction of structural shore protection projects will be to limit or prohibit the use of geotubes in certain cases. The Council disagrees. The intent of the policies is to establish guidelines that a local government can rely upon when planning, approving and constructing structural shore protection projects. The Council's function consists of evaluating whether the projects are consistent with the Council's goals and policies. The adopted rule provides standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. No change was made in response to this comment.

One commenter quoted several passages from the preamble for the proposed rule that discuss the prohibition against construction of structural shore protection projects by individuals as well as the passages that analyze §501.14(k)(2)(A), (B), (J), (K), (L) and (O). The commenter did not object to the sections to the extent that the policies apply to individuals, but objected to application of the polices to local governments and other governmental entities. The Council disagrees. Individuals do not have the authority to construct structural shore protection projects. Limiting the policies cited above to individuals and deleting any reference to their application to local governments would render the policies so narrow as to be meaningless and contrary to the Council's responsibility to adopt enforceable policies in compliance with the CMP. No change was made in response to this comment.

One commenter objected to the discussion in the preamble for the proposed rule relating to consistency review. The commenter claimed no objection to consistency determinations based on existing law, but objected to the inclusion in the policies of "new matters" that will furnish a new basis for consistency determinations not now required. Furthermore, the commenter believed that by including the discussion on consistency review of proposed projects, the Land Office is looking for ways to use the consistency process to curtail structural shore protection projects. The Council disagrees. The purpose of the rule as adopted is to provide standards and guidelines for evaluating structural shore protection projects for consistency with the CMP. The Council reviews state and local government applications for federal financial assistance for consistency with the CMP as described in 31 TAC §§506.50-506.52. If the Council concurs with the consistency determination included in the application for federal assistance, the federal agency may approve the federal assistance to the applicant entity. Structural shore protection projects are currently addressed under the CMP policies relating to Construction of Waterfront Facilities and Other Structures on Submerged Lands, §501.14(i); Construction in the Beach/Dune System, §501.14(k); and Development in Coastal Hazard Areas, §501.14(l). Consequently, this rule does not address "new matters," but instead represents an update and modification of the CMP to address current practices and conditions. In order to refer a local government action to the Council, for example, the consistency determination for a proposed project must be contested by a Council member or other person by filing written comments with the local government. If a significant dispute regarding consistency remains unresolved, the Council member or another person must file a request for referral within ten days of the date the action was proposed. Then, three Council members eligible to vote must agree within thirteen days of the date the action was proposed that a significant dispute remains unresolved regarding the proposed project's consistency with the CMP. In addition, in order to object to the consistency of a proposed structural shore protection project, two-thirds of the Council members, eight of eleven voting members, must vote in favor of the objection. Furthermore, the Council's authority to review an action for consistency may be further limited if the Council has certified an agency's rules as consistent with the CMP's goals and policies and approved thresholds for referral. See 31 TAC §§505.23-505.26. Finally, the Council is specifically authorized to adopt goals and policies for the CMP pursuant to Texas Natural Resources Code, §33.204. No change was made in response to this comment.

Regarding the fiscal impact of the rule, one commenter stated that to the extent that the proposed rule amendment creates impediments to the installation of structural shore protection projects there will be adverse effects to state and local governments, small business, and the local community. The commenter's concern appeared to be directed at the adverse effects to Gulf beaches and structures adjacent to Gulf beaches rather than a fiscal impact to state and local governments, small business, and local economies. The Council disagrees with the comment. The commenter did not provide any information on perceived fiscal impacts that might result from implementation of this rule. Consequently, the Council has no information upon which to provide a meaningful response. Furthermore, the policies allow for the construction of the structural shore protection projects by local governments; the intent of the policies are to establish guidelines that a local government can rely upon when approving and constructing structural shore protection projects. No change was made in response to this comment.

One commenter disagreed with the finding that the proposed amendments will not adversely effect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or public health and safety of the state or a sector of the state and therefore do not constitute a major environmental rulemaking. The Council disagrees with the comment. The commenter did not provide any information other than that the commenter disagreed with the finding. Consequently, the Council has no additional information relating to economic adverse effects upon which to provide a meaningful response. No change was made in response to this comment.

One commenter stated that there would be an economic cost to those required to comply with these policies and that there would be a terrible cost to those prevented from constructing a project due to the policies. The commenter did not provide any evidence of what those economic costs might be and none have otherwise been identified. Furthermore, the policies would not prevent the construction of a structural shore protection project. The policies provide standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. No change was made in response to this comment.

One commenter stated that the takings impact assessment does not follow the guidelines of the Texas Government Code §2007.043(a), (b), and (c). The commenter further stated that the Council action imposes a physical invasion and requires dedication and exaction of private property. The Council disagrees because it has determined that the rule will not constitute a taking as defined in §2007.002 of the Texas Government Code. Land Office staff assisted the Council in preparing a takings impact assessment, as required by §2007.043(a). The takings impact assessment complies with all the requirements set forth in §2007.043(b) and the guidance issued by the Office of the Attorney General, and finds that the rulemaking will not result in the taking of private real property. The rule will not constitute a taking because it does not increase the burden on private real property. The rule provides local governments greater flexibility than current law and existing CMP goals and polices in the construction of such projects and, therefore, does not constitute a taking. Furthermore, the policies do not impose a physical invasion nor do they require dedication and exaction of private property. As stated in §501.14(k)(2)(B), a structural shore protection project shall only be used to protect community developments, public infrastructure and for other lawful public purposes. Pursuant to §15.6(c) of the beach/dune rules, individuals are prohibited from constructing structural shore protection projects. Consequently, under current law and these policies, only local governments and other public entities may construct such projects. Finally, as required by §2007.043(c), the document is available to the public and may be obtained from Ms. Melinda Tracy, Texas Register Liaison, Texas General Land Office, P.O. Box 12873, Austin, TX. 78711-2873, facsimile number (512) 463-6311, or via e-mail to melinda.tracy@glo.state.tx.us. No change was made in response to this comment.

SPECIFIC COMMENTS:

One commenter objected to the use of the phrase "or areas adjacent to Gulf beaches" in §501.14(k)(1), claiming it is broad enough to include the area seaward of mean high water and applies to breakwaters in the water. Another commenter objected to §501.14(k)(2)(C) claiming it would prevent the construction of a project seaward of mean higher high tide, such as a breakwater, groin, or T-head. The Council disagrees with these comments. Section 501.14(k) applies solely to construction in that area landward of state-owned submerged land. While the geographic scope of the Open Beaches Act extends to the line of mean low water, the statutes and regulations governing state-owned submerged lands apply to the construction of breakwaters seaward of mean higher high water. The Council's policies for submerged lands can be found at §501.14(i), Construction of Waterfront Facilities and Other Structures on Submerged Lands. Breakwaters, jetties and groins are specifically addressed in §501.14(i)(1)(F). No change was made in response to this comment.

A commenter contended that §501.14(k)(1)(E) will prevent the construction of geotube projects, citing the following language: "Subdivisions shall not authorize the enlargement, improvement, repair, or maintenance of existing erosion response structures on the public beach." The Council disagrees with this comment. The language cited is not new language and 7.28 miles of geotubes have already been constructed while the cited language was in effect. No change was made in response to this comment.

One commenter proposed that §501.14(k)(2)(A) be amended to state that the project "shall be limited to the appropriate size to fulfill the project's goals and purposes" instead of the current language that requires that a project be limited to the "minimum size necessary to fulfill the project's goals and purposes." No information was provided to indicate why proposed projects would need to exceed the minimum size necessary to fulfill the project's goals and purposes. Without information as to the basis for the comment, the merits of the requested change could not be evaluated. No change was made in response to this comment.

A commenter asked for a definition of the term "practicable." Section 501.14(k)(1)(B) states that "[f]or purposes of this subsection, practicability shall be determined by considering the effectiveness, scientific feasibility, and commercial availability of the technology or technique. Cost of the technology or technique shall also be considered." No change was made in response to this comment.

A commenter stated that §501.14(k)(2)(C) and (D) do not follow the Work Group recommendations. Specifically, the commenter contended that the "definition" of mean high tide has been changed to a more restrictive definition (presumably "mean higher high water"). The commenter raises an issue regarding the boundary of state-owned submerged land implicated by subparagraph (C). Consequently, the rule has been amended to state that a shore protection project located parallel to the shore "shall be located landward of the boundary of state-owned submerged land as determined by a coastal boundary conducted survey in accordance with Texas Natural Resources Code §33.136," rather than "landward of mean higher high water" to clarify that the seaward limit of the geographic scope of these policies is the boundary of state-owned submerged land. A coastal boundary survey required pursuant to Texas Natural Resources Code. §33.136 is existing law and such survey must be prepared and filed with the Land Office if a proposed action will cause or constitute shoreline alteration.

A commenter recommended that §501.14(k)(2)(D) be eliminated because it does not capture the intent of the Work Group to facilitate the use of geotubes to combat coastal erosion and high wave activity, it impedes the use of geotubes, and staff has no statistical information relating to the effectiveness of geotubes versus placement location by which to base this decision. The Council disagrees with this comment. This subparagraph provides a preferential hierarchy giving local governments the flexibility to identify the placement of a proposed project that will maximize the protection the project offers, enhance the survivability of the project, and minimize adverse effects to natural resources. This rule is intended to provide standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. No change was made in response to this comment.

In relation to §501.14(k)(2)(D), one commenter asked why a structural shore protection project would be built but not protect dunes or vegetation against storm surges and tides. No evidence has been located or provided to the Council to substantiate that a geotube can protect dunes and dune vegetation. The location of the project will depend on the practicability for its placement which includes minimizing any negative effects on the natural beach/dune system. The dunes play an important role in the natural process of the beach/dune system. During storms and high tide events, the dunes can protect structures and infrastructure by absorbing wave energy and supplying sand to the beach. The beach/dune system follows a process of dynamic equilibrium which depends on four factors: the size of the waves, the rate of sea-level rise, the amount of sand supplied to the beach, and the shape of the beach. When one of these factors changes, the other factors adjust accordingly to maintain a balance. Active sand movement during storms flattens the beach; storm waves then expend their energy over a broader and more level surface. Without the sand supplied by the dunes, the beach would be steeper and storm-wave energy would be expended on a smaller surface, thus causing greater erosion and potentially greater damage. No change was made in response to this comment.

Several commenters stated that §501.14(k)(2)(D) will require that structural shore protection projects be located on private property and that it will be necessary to obtain an easement from the landowner. The commenters stated that while landowners would grant an easement for construction on the public beach, they would not grant an easement for construction landward of the line of vegetation or under or behind their houses, and therefore, the easement will have to be obtained by condemnation, making such projects cost prohibitive. The Council disagrees with these comments and with the commenters' interpretation of the rule. While the Council does not agree that obtaining easements for structural shore protection projects located behind the line of vegetation will be an obstacle to construction of a structural shore protection project, §501.14(k)(2)(D) establishes a hierarchy for placement, which gives the local government the flexibility to determine where projects should be constructed, including at the most landward point on the public beach, where there is no other practicable location. The consideration of what is "practicable" includes the cost of the technology or technique. §501.14(k)(1)(B). The cost of siting a project may be considered as part of the proposed technology or technique. Therefore, for a particular project, if there is an issue of the cost of obtaining permission or an easement to cross private property, then that cost could be considered as part of the proposed technique and may be considered in determining the practicability of the proposed project. Consequently, the cost of siting a proposed project may be considered when evaluating whether a project may be located at the most landward point of the public beach. No change was made in response to this comment.

One commenter recommended deleting the phrase "where practicable" from §501.14(k)(2)(D)(i) and (ii) as the phrase may allow structural shore protection projects to be used to protect private property at the expense of the public beach. The Council disagrees. Section 501.14(k)(2)(B) specifically provides that structural shore protection projects shall not be used solely to protect individual structures or properties. No change was made in response to this comment.

A commenter requested that the language in §501.14(k)(2)(D)(iv) be modified to read "provided that the project sponsor has provided adequate financial assurance that the minimum beach width existing before the project is installed will be maintained through beach nourishment." Based on this comment, the word "pre-project" was added to modify the term "beach width" as a point of clarification. The pre-project beach width will be based on the beach width prior to construction of a structural shore protection project and that width will be documented by surveys as required for the project, as described in §501.14(k)(2)(C) and (N). The term "adequate" was not added to the rule because it is unlikely that inadequate financial assurance would be acceptable.

One commenter requested that a trigger mechanism be included in the rule for removal, §501.14(k)(2)(D)(iv), as well as financial assurance for the removal of a project to ensure the maintenance of an adequate beach easement. The trigger mechanism for removal of a project will be determined based on the project success criteria developed by the project sponsor pursuant to §501.14(k)(2)(K) and pursuant to the monitoring required under §501.14(k)(2)(N). No change was made in response to this comment.

Concerning §501.14(k)(2)(E), the prohibition against construction of a structural shore protection project in a sea turtle nesting area, a commenter claimed that if a project is covered in sand and vegetation and maintained as a dune, the turtle will nest in that sand and vegetation just like it does anywhere else. The Council disagrees. First, the Work Group found that structural shore protection projects are not dunes. Second, sea turtles, through thousands of years of evolution, carefully select the most suitable location near natural dunes to lay their eggs. Each generation returns to lay its eggs on the same beach where the turtles were hatched. Structural shore protection projects may result in the reduction of the beach width and project maintenance may further impact any existing and available nesting sites. Furthermore, §501.14(k)(2)(E) was based on the recommendation of the Work Group, of which the commenter was a member. No change was made in response to this comment.

One commenter objected to §501.14(k)(2)(F), prohibiting structural shore protection projects on stable or accreting beaches. The Council disagrees. Section 501.14(k)(2)(F) is based on the consensus of the Work Group, of which the commenter was a member, as modified by the Executive Committee. In addition, technical experts have indicated that the placement of structural shore protection projects on stable or accreting beaches is neither necessary nor appropriate as they may cause adverse effects to the beach system by interrupting active sand transport and inhibiting dune development as the beach stabilizes and accretes between storm events. No change was made in response to this comment.

A commenter recommended that the policies in §501.14(k)(2)(G) and (I) be expanded to state that projects should be designed to "avoid and otherwise minimize any material increase in the cumulative adverse effect" to adjacent beaches or properties at either end of a project and to critical dune areas. The commenter supported the recommendation with the claims that the jetties and the seawall cause most of the erosion in the Galveston area and absent the change in the language in the rule any erosion in the area will be attributed to the geotube. The Council disagrees. The rule does not require that erosion in the project area be attributed solely to the structural shore protection project. Subsection (k)(2)(G) is intended to limit the likelihood that construction of a structural shore protection project by a local governmental will exacerbate erosion. Subsection (k)(2)(I) reflects existing law and is required to ensure compliance with the Dune Protection Act, the beach/dune rules, and the pertinent local government's beach/dune plan. No change was made in response to this comment.

Regarding §501.14(k)(2)(H), a commenter noted that the local government is both the permitting entity and the permittee for a dune protection permit, when one is required, in conjunction with a structural shore protection project. There are no new permitting requirements set out in these policies. A local government is included in the definition of a "person" in 31 TAC §15.2(53) for purposes of permitting in the beach/dune program and is, therefore, held to the same standards as individuals that apply for a dune protection permit when undertaking activity within the beach/dune system. No change was made in response to this comment.

With regard to §501.14(k)(2)(K), one commenter was concerned that the phrase "consideration of the entire beach/dune system" referred to the entire coast. Based on this comment, the word "entire" has been deleted from the phrase "entire beach/dune system" because the phrase as proposed could be misconstrued to mean the entire Texas coast when the intent is to encompass all of the elements of the beach/dune system in the affected area.

One commenter asked to whom a mitigation plan is to be submitted, as described in §501.14(k)(2)(I). The mitigation plan, if one is required, is submitted as part of the dune protection permit application to the local government. No change was made in response to this comment.

One commenter recommended that the mitigation plan in §501.14(k)(2)(I) be required for any adverse effects to the public beach, public access, or the public's use and enjoyment of the public beach. The commenter's concerns are addressed in the policies. Section 501.14(k)(2)(O) requires that existing public access in the area of a structural shore protection project be replicated if not enhanced. In addition, §501.14(k)(2)(L) is designed to avoid, minimize, and mitigate for any adverse effects to the public beach through the requirements for beach nourishment, as well as the requirement that success criteria take into consideration the health and maintenance of the beach/dune system. No change was made in response to this comment.

One commenter suggested that §501.14(k)(2)(J) be strengthened to assure that members of the public who use the beach be made aware of any project and have ample opportunity to participate in the project development. To that end, the commenter would amend the second section of the rule to read as follows: "[m]ethods to obtain public input include but are not limited to public meetings, notices by mail to affected property owners and interested parties, publication of notices in local newspapers of general circulation in the county and adjacent counties of a proposed project, the Texas Register , and web sites. At a minimum, project sponsors must hold two public meetings during non-working hours or on weekends. These meetings must be held at least 14 days apart with notice in local newspapers of general circulation and notice on the General Land Office (or CCC) web site." The Council disagrees. Subparagraph (J) was drafted to ensure not only that the public would receive adequate notice of a proposed project, but also that a local government would have the flexibility to use the notice methods appropriate for the individual projects and the affected coastal community. No change was made in response to this comment.

A commenter cited §501.14(k)(2)(J), but referenced the language of §501.14(k)(2)(K), to recommend that the success criteria take into consideration "any expected material increase in the cumulative adverse effect" on the health of the beach/dune system, replacing the language in the rule that simply requires that the success criteria take into consideration the health and maintenance of the beach/dune system. The commenter supported the recommendation with the claim that the jetties and the seawall cause most of the erosion in the Galveston area and absent the change in the language in the rule any erosion in the area will be attributed to the geotube. The Council disagrees. The rule provides local governments as much flexibility as possible in developing success criteria for projects. Section 501.14(k)(2)(K) allows local governments to consider all the effects, both positive and negative, that may be caused by a structural shore protection project; therefore, no change was made in response to this comment.

A commenter stated that defining the success criteria for a project should not be the sole prerogative of the project sponsor and that, at a minimum, such criteria should be developed in consultation with the Council, Land Office staff, and/or the University of Texas at Austin, Bureau of Economic Geology. The Council disagrees. Section 501.14(k)(2)(K) allows local governments the flexibility to rely on any experts they deem appropriate to determine the success criteria for a particular project. No change was made in response to this comment.

One commenter objected to the inclusion of §501.14(k)(2)(L), which requires that the project sponsor be responsible for the ongoing maintenance of the project, and if necessary, removal of the project. The commenter further questioned why the Land Office would not assist local governments with beach nourishment. This policy is based on the recommendation of the Work Group as modified by the Executive Committee. The Land Office's Coastal Erosion Planning and Response Act (CEPRA) program has funded, and continues to partner with entities to fund, beach nourishment projects. For more information on the CEPRA program, please visit the CEPRA website at www.glo.state.tx.us/coastal/erosion.html. No change was made in response to this comment.

A commenter recommended that §501.14(k)(2)(L) be amended to require that the only remedy for the failure or refusal of a project sponsor to provide beach nourishment, when necessary, shall be the removal of the project. The commenter claimed that the rule could be interpreted to make the project sponsor financially liable for beach nourishment. The commenter was concerned that such financial liability could perhaps exceed the financial ability of the sponsor but the cost of removal would not. The Council disagrees. As a practical matter, depending on the location and success criteria for a particular project, the project sponsor may be liable for beach nourishment; however, removal may also be an option. These are factors that project sponsors need to consider when planning and designing a structural shore protection project. No change was made in response to this comment.

One commenter requested deletion of §501.14(k)(2)(M) because the law already prohibits the use of sand from the beach to cover geotubes. The Council disagrees. The policy was based on the recommendation of the Work Group, of which the commenter was a member, and modified by the Executive Committee. The nature of the CMP is that of a networked program linking the regulations, programs and expertise of state and local entities that manage various aspects of the use of coastal natural resources. The CMP policies are a combination of existing policies and policies specifically developed by the Council to protect, restore, and enhance coastal natural resource areas (CNRAs). No changes were made in response to this comment.

A commenter characterized the provisions of the beach/dune rules as prohibiting the construction of geotubes. Although the beach/dune rules are not a part of this rulemaking, it is worth noting that the beach/dune rules did not prohibit the construction of the existing 7.28 miles of geotubes. No change was made in response to this comment.

A commenter recommended adding the phrase "if and to the extent practicable" to the third sentence in§501.14(k)(2)(M) requiring compliance with §15.4 and §15.7 of the beach/dune rules. The Council disagrees. The policy was consensus language developed by the Work Group, with minor modifications by the Executive Committee. The Work Group, of which the commenter was a participant, recognized that standards regarding the appropriate material to be used already existed in the beach/dune rules and, therefore, it was neither necessary nor beneficial to create new standards. The CMP is a networked program linking the regulations, programs, and expertise of state and local entities to manage various aspects of coastal resources. In developing the CMP, the Council specifically found that the coast is subject to multiple uses, including residential development, the development of roads and other infrastructure, and "waterfront construction, which includes erosion response projects and shoreline access structures. Erosion response projects include retaining walls, bulkheads, seawalls, rubble mounds, breakwaters and groins." 31 TAC §501.2(a)(1), (6), and (7). The Council also found that because these structures may adversely affect CNRAs, which include coastal shore areas, critical dune areas, critical erosion areas, and Gulf beaches, special management of coastal uses is necessary for continued balanced development of the coast. 31 TAC §501.2(b). Furthermore, the sections of the beach/dune rules referenced in §501.14(k)(2)(M) are existing law. No change was made in response to this comment.

A commenter objected to the inclusion of §501.14(k)(2)(N), which requires long-term monitoring of a structural shore protection project, because the commenter claims that this provision overrides the laws of state and is burdensome. The Council disagrees. The commenter failed to state what law may have been overridden. This policy was based on the recommendation of the Work Group as modified by the Executive Committee. Geotextile tube projects along Gulf beaches are admittedly experimental structural shore protection projects, and the long term effects of these projects are not yet known. It is worth noting that this requirement is very similar to the monitoring provision contained in the agreement, relating to the consistency of the existing projects, between the Council and Galveston County where most of the existing projects are located. This rule is needed to determine whether the success criteria developed under §501.14(k)(2)(K) are met. No change was made in response to this comment.

A commenter recommended amending §501.14(k)(2)(O) to require that both existing beach access and existing beach width be replicated or enhanced in the area of a structural shore protection project. The Council agrees that the policies should ensure beach access and width should be preserved if not enhanced. The commenter's concerns are already addressed in §501.14(k)(2)(D)(iv) and §501.14(k)(2)(O). The rule provides sufficient protection and enhancement of the status quo. No change was made in response to this comment.

GENERAL COMMENTS:

One commenter stated that the rule as adopted is in conflict with the United States and Texas constitutions. The commenter failed to specify the basis of the conflict. Absent the identification of the specific constitutional and rule provisions in conflict, the Council is unable to provide any meaningful response, as it would be engaging in pure conjecture. No change was made in response to this comment.

One commenter stated that geotubes cannot be constructed with public funds for the benefit of the protection of private property exclusively as it would violate Article III, §52 of the Texas Constitution, which prohibits the expenditure of public funds for private purposes. Section 501.14(k)(2)(B) states that a project shall not be used solely to protect private property. The local government sponsor of a structural shore protection project determines the public benefit when authorizing or constructing a project. No change has been made in response to this comment.

One commenter stated that the Council proposes to usurp Texas Natural Resources Code, §33.204(a), which requires that a goal or policy may not require an agency or subdivision to perform an action that would exceed the constitutional or statutory authority of the agency or subdivision to which the goal or policy applies. The commenter failed to identify the constitutional or statutory authority that is allegedly exceeded. In accordance with Texas Natural Resources Code, §33.204(a), the rule adopts policies that provide standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. No change was made in response to this comment.

A commenter requested that the Council amend the rule "in a visible and effective way that will evidence the recognition of the need to work toward a realistic, reasonable and affordable solution to the Gulf coast erosion problem in a way that will protect both the public beach and the public interest in the land, infrastructure and coastal communities." The process used to develop the policies is consistent with the commenter's request and the rule as implemented will also accomplish that goal. No change was made in response to this comment.

A commenter suggested that the rule also recognize "the complicity of the public and government for the sand starvation that gives rise to the need for shore protection and the need for federal, state and local government participation in shore protection." The Council disagrees. Erosion is caused by a variety of factors. Local governments may choose to undertake a variety of structural or non-structural erosion response projects, after considering in the causes of erosion. The provisions in the rule requiring that the pre-project beach width be maintained as well as the requirement for beach nourishment recognize that a reasonable remedy to sand starvation is beach nourishment and dune restoration rather than armoring the shoreline. The rule provides standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. No change was made in response to this comment.

A commenter suggested that the Council withdraw the proposed rule and notify the appropriate agencies of the need to adopt additional rules regarding shoreline erosion. The commenter cited the Coastal Coordination Act, Texas Natural Resources Code, §33.053, incorrectly identified by the commenter as the federal Coastal Zone Management Act, as requiring that states address the issue of shoreline erosion. The Council disagrees with this comment. In 1999, subsequent to the enactment of the Coastal Coordination Act and federal approval of the CMP, the Legislature passed the Coastal Erosion Planning and Response Act, Texas Natural Resources Code Chapter 33, Subchapter H, as the state's erosion response program. Furthermore, structural shoreline protection projects are subject to the CMP, and these policies are necessary to evaluate the consistency of such projects. No change was made in response to this comment.

One commenter believed that one of the key objectives of the proposed policies is to give the Council a basis to prevent the Federal Emergency Management Agency, and possibly other funding sources, from funding geotube projects to which the Council objects. The Council disagrees with this comment. The basis of the rule is to provide standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. The Council reviews state and local government applications for federal financial assistance for consistency with the CMP as described in 31 TAC §§506.50-506.52. If the Council concurs with the consistency determination included in the application for federal assistance, the federal agency may approve the federal assistance to the applicant entity. In order for the Council to object to the application, three Council members must refer the application for consistency review, and two-thirds of the Council members, eight out of eleven voting members, must vote in favor of the objection. In addition, the Council's objection must describe: (1) how the proposed activity is inconsistent with specific CMP goals and policies; and (2) any available alternative measures that would permit the proposed activity to be conducted in a manner consistent with the CMP. No change was made in response to this comment.

One commenter stated that neither the Council nor the public should be bound by the consensus of the Geotube Work Group. In December 2000, the Council formed the Geotube Work Group to ensure that these policies incorporated the input of coastal stakeholders from the very beginning. The Work Group consisted of Council members, local governments, local property owners, and other interested parties. There was an open invitation for anyone interested in the issue to participate in the Work Group. The Work Group included a broad cross-section of groups and individuals that would have a stake in whatever policies the Council would eventually adopt. The Work Group met four times between March and June 2001. These sessions included technical presentations regarding the use of geotubes along Gulf beaches. The process developed by the Work Group, not the Council, was that recommended policies must be approved by the unanimous agreement of all participants. To ensure that all Work Group members had equal representation, each group was allowed one vote in the process of building consensus. The commenter was a full participant in this process and, by virtue of the Work Group's own process, agreed with the Work Group's recommendations presented to the Council. No change was made in response to this comment.

A commenter recommended that the proposed rule be tabled or modified because the policies are not balanced, since they were drafted in an attempt to curtail the use of geotubes without recognition of their value. This comment reflects a misunderstanding of the purpose of §501.14(k)(2). Where a local government or other authorized entity determines that a public purpose would be served by constructing a structural shore protection project, §501.14(k)(2) is intended to provide standards and guidelines for evaluating such projects for consistency with the CMP. No change was made in response to this comment.

A commenter recommended that the proposed rule be tabled or modified because the Work Group's initial draft of the policies was changed from permissive to mandatory language and is, therefore, flawed. The change from permissive language in the Work Group recommendations to mandatory language in the rules was requested by several members of the Executive Committee. The members determined that permissive language would not provide an adequate basis for evaluating consistency as precatory language would fail to provide clear standards. Furthermore, permissive language is rarely used when drafting rules. No change was made in response to this comment.

A commenter recommended that the proposed rule be tabled or modified because the policies are unnecessary, since the Council and Galveston County, where the majority of the existing geotube projects are located, have entered into an agreement relating to geotubes. The commenter also stated that the Council and the City of Galveston are currently negotiating a similar agreement, and local governments in other areas of the coast appear unlikely to initiate geotube projects. The fact that most of the existing geotube projects, covering approximately 6.55 miles, are in Galveston County and are subject to an agreement between the Council and the County does not diminish the need for the current policies. The agreement between the Council and the County applies to the structures currently in place. The policies are prospective in nature and apply to future projects. The rule is intended to provide standards and guidelines for evaluating projects for consistency with the CMP. No change was made in response to this comment.

Two commenters suggested that the proposed rule be tabled until the study undertaken by the Council concerning the overall erosion problem has progressed to the point where the Council and representatives of its constituent agencies, including the Texas Department of Transportation and the Texas Natural Resource Conservation Commission, feel comfortable in again considering the proposed policies. An additional commenter suggested that the rule be set aside until more research is made available to the Executive Committee and the Council. The Council disagrees with these comments. Section 501.14(k)(2) was the product of four Work Group sessions, which included input from technical experts on the subject of structural shore protection projects in general, and geotubes in particular. In addition, seven Executive Committee meetings and four Council meetings were held where the rule was discussed. Extensive public comments were taken at all the meetings and were considered by the Executive Committee and the Council. At each of the Executive Committee and Council meetings where the rule was discussed, each vote taken to proceed with the rulemaking was unanimous. In addition, the rule has been the subject of more than a year of review and study. The rule is based on existing data, the research in a specific study contracted by the Council, and other ongoing studies. Furthermore, in order to evaluate whether future structural shore protection projects are consistent with the CMP, the Council must have polices in place. The benefit of enacting §501.14(k)(2) now, and providing local governments with guidelines for the design and construction of structural shore protection projects, outweighs any benefit to be gained by delaying the rule for further study. No change was made in response to this comment.

A commenter characterized the rule as an attempt by the Council to give itself the power to: (1) delay or deny permits or impose insurmountable requirements relating to structural shore protection projects, including geotubes, to which it objects; and (2) prevent an instrumentality of the federal or state government from financing a structural shore protection project to which the Council objects, by finding the same inconsistent with its policies. The Council disagrees. The policies establish standards and guidelines that a local government can rely upon when approving and constructing structural shore protection projects, thereby promoting certainty and consistency in regulation. The Council is not a permitting agency with respect to structural shore protection projects. The Council's function is limited to evaluating whether such projects are consistent with the CMP goals and policies. The rule provides standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. No change was made to the rule in response to this comment.

A commenter stated that the rule can and should be made more specific, making the effect of the rule more predictable. The Council disagrees. The rule provides the specificity necessary to evaluate the consistency of structural shore protection projects, while allowing permitting agencies and project sponsors the flexibility to make decisions relevant to all aspects of a project. No change was made in response to this comment.

A commenter stated that a definite criterion is needed for the terms "vegetation line" and "stable and accreting beach." The Council disagrees that new criteria are necessary. The term "line of vegetation" is defined in Texas Natural Resources Code §61.001(5) and 31 TAC §15.2(41). The term "eroding area" is defined in 31 TAC §15.2(31). Stable and accreting areas are those areas that are not eroding. While the term "stable beach" and "accreting beach" are not defined in this rule, the scientific data as to stable, accreting, and eroding beaches is available from the University of Texas at Austin, Bureau of Economic Geology (BEG), http://www.beg.utexas.edu. Under the beach/dune rules, 31 TAC §15.3(s)(4)(D)(i), a dune protection permit or beachfront construction certificate application submitted to a local government must include information on historical erosion rates if that information is available from the BEG. The historical erosion data and maps provided by the BEG are regularly used by local government beach/dune programs and are available on the Land Office web site at http://www.glo.state.tx.us/coastal/erosion/erosionrates.html. No change was made in response to this comment.

One commenter stated that the proposed rule is "excessive and infeasible" regarding the issue of addressing shoreline erosion. The commenter stated that the rule has been written with substantial detail even though there was a consensus of Work Group and staff regarding the general lack of knowledge on the appropriate applications of geotubes. The Council disagrees with this comment. The rule was drafted with the intent of providing sufficient flexibility to address the various needs of coastal communities. Technical expertise from various sources was available at all the Work Group sessions, and the Work Group further directed staff to obtain technical advice on those issues that were outside the Work Group's expertise. No change has been made in response to this comment.

One commenter proposed that beach nourishment be considered a separate project from a structural shore protection project. Generally, beach nourishment may be considered a separate project. However, beach nourishment is considered as part of an individual structural shore protection project when required under §501.14(k)(2)(D)(iv) for a project located on the public beach. No change was made in response to this comment.

One commenter recommended that "geotextile tube project" be classified as a temporary means of protecting landward structures and that more emphasis be placed on beach nourishment as the ongoing method of beach stabilization. The Work Group and Council considered classifying geotextile shore protection projects as temporary projects, as has been done in other states. However, experience in other states has shown that the "temporary" geotextile shore protection projects, often have been left in place and become permanent structures. The Council's preference, as stated in §501.14(k)(1)(E), is for non-structural erosion response methods such as beach nourishment, sediment bypassing, nearshore sediment berms, and planting of vegetation, rather than structural shore protection methods. Nonetheless, when local governments choose to construct a structural shoreline protection project, beach nourishment may be required. No change was made in response to this comment.

A commenter opposed any policy change that would allow or encourage the armoring of the coastline with erosion response projects, as they decrease the size of the public beach easement and therefore reduce the amount of land available to the public to use and enjoy the public beach. These policies do not allow or encourage the armoring of the coastline. Rather, the policies were intended to provide standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. Pursuant to §501.14(k)(2)(D)(iv), when a project is located on the public beach, beach nourishment will be required in order to maintain the pre-project beach width. No change was made in response to this comment.

One commenter stated that the rule should expressly address the use of structural shore protection projects to protect highways, specifically SH 87 on Bolivar Peninsula and SH 3005 on West Galveston Island. The rule addresses the use of structural shore protection projects for all authorized purposes, including the protection of public infrastructure such as SH 87 and SH 3005. See §501.14(k)(2)(B). No change was made in response to this comment.

One commenter proposed that the phrase "geotextile tube project" be defined as "shore parallel structures located above mean high water (or other appropriate datum)." This commenter's concerns are addressed in §501.14(k)(2)(C), as revised based on comments, which provides that a structural shore protection project located parallel to the shore must be located landward of the boundary of state-owned submerged land. No change was made in response to this comment.

One commenter stated that by failing to designate critical dune areas, Galveston County has not complied with the Council's rules and, as a result, the Council has ignored its own rules in this rule adoption. Galveston County does not have the authority to designate critical dune areas, and the CMP does not require the designation of critical dune areas by Galveston County. The Dune Protection Act, Texas Natural Resources Code, §63.011, requires Galveston County to establish a dune protection line, and the County has done so. No change was made in response to this comment.

One commenter stated that it is not within the authority of the Council to independently set policies. The commenter stated, "Policy development by the [Council] is based on consistency reviews of existing agency policies. If the agency's rules are deemed consistent, then the [Council] may incorporate these rules as part of the Texas Coastal Management Program's coastal policies. Since there are no existing agency rules regarding the use of geotextiles to combat shoreline erosion, it is inappropriate for the [Council] to develop and set such policies." The Council disagrees with these comments. The CMP is a networked program linking the regulations, programs, and expertise of state, federal, and local entities that manage various aspects of coastal resource use. Specifically, the CMP identifies CNRAs, identifies uses or activities that may adversely affect those areas, and sets uniform policies to address those effects. One of the findings upon which the CMP is based states that the Texas coast is subject to multiple uses, including residential development, the development of roads and other infrastructure, and "waterfront construction, which includes erosion response projects and shoreline access structures. Erosion response projects include retaining walls, bulkheads, seawalls, rubble mounds, revetments, breakwaters, and groins." 31 TAC §501.2(a)(1), (6), and (7). Because these multiple uses may adversely affect coastal barriers, coastal shore areas, critical dunes, Gulf beaches and other CNRAs, the Council found that specific management of these coastal uses is necessary for continued balanced development of the coast. 31 TAC §501.2(b). The CMP policies are a combination of existing policies and policies specifically developed by the Council to protect, restore and enhance CNRAs. The rule establishes policies for evaluating the consistency of structural shore protection projects in accordance with the Council's findings. No change was made in response to this comment.

A commenter stated that the Council's consistency review authority is predicated solely on the existing policies of other agencies. The Council disagrees. The CMP policies are a combination of existing policies and policies specifically developed by the Council to protect, restore and enhance CNRAs. The Council's consistency review authority is dependent on listed state agency actions under 31 TAC §505.11, local government actions under 31 TAC §505.60, and federal agency actions, activities, and funding decisions pursuant to 31 TAC §506.12. No change was made in response to this comment.

A commenter stated that a geotube "dune" should be covered under the existing beach/dune rules for the construction of restored dunes, which allow a constructed dune to extend 20 feet seaward of the natural line of vegetation. The Council disagrees. The Work Group made a finding that "[a] geotube project is not a dune restoration project as currently defined by the Land Office," (see Geotube Work Group Report to the Texas Coordination Council regarding Geotextile Tube Shore Protection Projects along Gulf Shorelines, June 4, 2001 ). The standards for constructing dunes in the beach/dune rules §15.7(e)(5)(A) and (B) do not allow for hard or engineered structures or the use of nonbiodegradable items when constructing dunes. Furthermore, the U.S. Army Corps of Engineers Coastal Engineering Manual describes a geotube as a form of revetment, which is a structural erosion response method ( see http://bigfoot.wes.army.mil/PartV-Chap3.pdf). The existing geotube projects, including all components, exceed 20 feet in width. Even if these projects were considered to be constructed dunes, they would exceed the 20-foot restoration area allowed in 31 TAC § 15.7(e). In addition, §501.14(k)(2)(D) provides a hierarchy for locating a structural shore protection project to maximize the protection offered by the project, to enhance the survivability of the project, and to minimize adverse effects to natural resources. Under this hierarchy, a structural shore protection project may be placed on the public beach when there is no other practicable location. No change was made in response to this comment.

One commenter opposed the inclusion of bulkheads, jetties, and groins on submerged lands as described under 31 TAC §501.14(i)(1)(F), relating to Construction of Waterfront Facilities and Other Structures on Submerged Lands. The commenter further objected to language in 31 TAC §501.14(i)(1)(Q) as well as certain language in 31 TAC §501.14(j). The Council did not propose amendments to the sections cited by the commenter. Further, the comments relate to subsections of §501.14 that are neither affected by the proposed rulemaking nor covered by the original notice of the proposed rulemaking. Should the Council alter the proposed rule as suggested by the commenter, other subjects or persons would be affected by the rule change which would require a new round of notice and comment in accordance with State Bd. of Ins. v. Deffebach, 631 S.W.2d 794 (Tex. App.-- Austin 1982, writ ref'd n.r.e.). No change was made in response to this comment.

One commenter stated that the proposed policies and §501.14(j), relating to Dredging and Dredged Material Disposal and Placement, should conform to allow beneficial use of dredged material as fill for geotubes if the material would otherwise qualify for use on the beach. The Council does not disagree. Section 501.14(j) does not prohibit the beneficial use of dredged material for shoreline protection ( see §501.14(j)(4)(C)). However, §501.14(j) pertains to a different subject matter and is not affected by this rulemaking. Further, §501.14(j) is not covered by the original notice of the proposed rulemaking, and cannot be amended as part of this rulemaking. Furthermore, should the Council alter the proposed rule as suggested by the commenter, other subjects or persons would be affected by the rule change, which would require a new round of notice and comment in accordance with State Bd. of Ins. v. Deffebach, 631 S.W.2d 794 (Tex. App.-- Austin 1982, writ ref'd n.r.e.). No change was made in response to this comment.

Five commenters claimed that the proposed rule is inappropriate or not allowed because Texas Natural Resources Code, §61.022 exempts local governments from the requirements of the Open Beaches Act when constructing structural shore protection projects. One commenter claimed that the rule is an "attempt to limit the authority of coastal counties and coastal municipalities to do what the statutory law expressly authorizes them to do." Another commenter claimed that the "threshold established by the Natural Resources Code, §61.022 already governs the actions of the [Council]," limiting the Council's authority to review an agency's action to protect the shore. It is unclear what the commenter meant by "threshold" in this comment, as the term threshold has legal meaning with regard to the CMP ( see Texas Natural Resources Code, §33.2052 and 31 TAC §505.26). Nevertheless, §61.022 does not limit the Council's authority to adopt amendments to 31 TAC §501.14. The Council disagrees with these comments concerning Texas Natural Resources Code, §61.022. The statute does not provide an exemption for local governments from the requirements of any statute, whether it is the Open Beaches Act, the Dune Protection Act, the Coastal Coordination Act, applicable federal statutes, state and federal regulations, the requirements for federal funding of structural shore protection projects, or any other laws. Rather, §61.022(a) provides that the provisions of the Open Beaches Act, Subchapter B, §61.011 through §61.026, shall not be interpreted to prevent local governments from constructing such projects: "[t]he provisions of this subchapter do not prevent any agency, department, institution, subdivision, or instrumentality of this state or of the federal government from erecting or maintaining any groin, seawall, barrier, pass, channel, jetty, or other structure as an aid to navigation, protection of the shore, fishing, safety, or other lawful purpose authorized by the constitution or laws of this state or the United States" (emphasis added). Section 61.022(a) recognizes the constitutional and statutory authority of local governments to construct structural shore protection projects for public purposes. Section 61.022(a) does not exempt structural shore protection projects from the requirements of the Open Beaches Act, Subchapter B, or any other law, nor does it provide local governments with any additional authority to construct these projects, beyond existing constitutional and statutory authority. For example, where a structural shore protection project involves alteration of existing access to the public beach, a local government must amend its beach/dune plan and have the plan certified by rule by the state in advance of altering access. Section 61.022 does not exempt local governments from this requirement. Likewise, the Council's policies do not prevent the construction of structural shore protection projects; rather, they provide standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. No change was made in response to these comments.

One commenter claimed that the Council may challenge whether §61.022 is consistent, but the Council may not write additional rules on its own. The Council is not authorized to determine or challenge the consistency of state statutes, such as §61.022. However, the Council is authorized, under the Coastal Coordination Act, Texas Natural Resources Code, Chapter 33, Subchapter C and Subchapter F, to adopt standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. Furthermore, in accordance with Texas Natural Resources Code, §33.204, the CMP policies are a combination of existing policies and policies specifically developed by the Council to protect, restore and enhance CNRAs. No change was made in response to this comment.

Three commenters asserted that the proposed rule is inconsistent with Texas Local Government Code, Chapter 421, which authorizes a coastal county or municipality to construct a seawall, breakwater, levee, floodway, or drainway. The Council disagrees. The rule is consistent with Chapter 421. Chapter 421 does not exempt local governments from the requirements of other applicable laws when constructing structural shore protection projects. The Council is authorized, under the Coastal Coordination Act, to adopt standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. The rule does not abrogate the local government's authority to construct these projects under Chapter 421. No change was made in response to these comments.

In addition, one commenter stated that the rule overrides §421.005 of the Local Government Code, which provides: "The state cedes to a county or municipality that uses this subchapter the right to the use and control of as much of the land and sea bottom below high tide that the commissioners court or municipal authority considers necessary for the purposes prescribed by this subchapter." Local Government Code, §421.005 is not relevant to the adoption of 31 TAC §501.14(k)(2), which deals with standards and guidelines for evaluating structural shore protection projects that are constructed landward of state-owned submerged land. The Council is authorized, under the Coastal Coordination Act, to adopt standards and guidelines for evaluating proposed structural shore protection projects for consistency with the CMP. No change was made in response to this comment.

Comments in support of the rule were submitted by the Surfrider Foundation, Central Texas Chapter and Kimberly K. McKenna. Comments in opposition to the rule were submitted by John Arrington, Robert P. Herrmann, George P. Mitchell, West Galveston Island Property Owner's Association, Galveston County Beach Erosion Task Force, Gilchrist Community Association, Bolivar Chamber of Commerce, and the Texas Department of Transportation. A comment on the rule was submitted by A.R. "Babe" Schwartz.

This amendment is adopted under Texas Natural Resources Code Chapter, 33, §33.051, which authorizes the Council to perform the duties provided in Subchapter C, and §33.204, which authorizes the Council to adopt by rule goals and policies for the CMP.

Texas Natural Resources Code, §§33.051, and 33.204 are affected by this rulemaking.

§501.14.Policies for Specific Activities and Coastal Natural Resource Areas.

(a) Construction of Electric Generating and Transmission Facilities.

(1) Construction of electric generating facilities and electric transmission lines in the coastal zone shall comply with the policies in this subsection.

(A) New electric generating facilities shall, where practicable, be located at previously developed sites. New electric generating facilities at undeveloped sites shall be located so that future expansion will avoid construction in critical areas, Gulf beaches, critical dunes, and washovers to the greatest extent practicable. To the extent applicable to the public beach, the policies in this subsection are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public.

(B) Electric generating facilities using once-through cooling systems shall be located and designed to have the least adverse effects practicable, including impingement or entrainment of estuarine organisms.

(C) Electric generating facilities shall be constructed at sites selected to have the least adverse effects practicable on recreational uses of CNRAs and on areas used for spawning, nesting, and seasonal migrations of terrestrial and aquatic fish and wildlife species.

(D) Electric transmission lines to or on Coastal Barrier Resource System Units and Otherwise Protected Areas designated on maps dated October 24, 1990, under the Coastal Barrier Resources Act, 16 United States Code Annotated, §3503, on coastal barriers shall:

(i) be located, where practicable, in existing rights-of-way or previously disturbed areas if necessary to avoid or minimize adverse effects; and

(ii) be located at sites at which future expansion shall avoid construction in critical areas, Gulf beaches, critical dunes, and washovers to the greatest extent practicable.

(2) The PUC shall comply with the policies in this subsection when issuing certificates of convenience and necessity and adopting rules under Texas Civil Statutes, Public Utility Regulatory Act, Article 1446c, governing construction of electric generating facilities, electric transmission lines, and associated facilities in the coastal zone.

(b) Construction, Operation, and Maintenance of Oil and Gas Exploration and Production Facilities.

(1) Oil and gas exploration and production on submerged lands shall comply with the policies in this subsection.

(A) In or near critical areas, facilities shall be located and operated and geophysical and other operations shall be located and conducted in such a manner as to avoid and otherwise minimize adverse effects, including those from the disposal of solid waste and disturbance resulting from the operation of vessels and wheeled or tracked vehicles, whether on areas under lease, easement, or permit or on or across access routes thereto. Where practicable, buffer zones for critical areas shall be established and directional drilling or other methods to avoid disturbance, such as pooling or unitization, shall be employed.

(B) Lessees, easement holders, and permittees shall construct facilities in a manner that avoids impoundment or draining of coastal wetlands, if practicable, and shall mitigate any adverse effects on coastal wetlands impounded or drained in accordance with the sequencing requirements in this subsection.

(C) Upon completion or cessation of operations, lessees, easement holders, and permittees shall remove facilities and restore any significantly degraded areas to pre-project conditions as closely as practicable, unless facilities can be used for maintenance or enhancement of CNRAs or unless restoration activities would further degrade CNRAs.

(2) To the extent applicable to the public beach, the policies in this subsection are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public.

(3) The GLO and SLB shall comply with the policies in this subsection when approving oil, gas, and other mineral lease plans of operation and granting surface leases, easements, and permits and adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 51-53, governing oil and gas exploration and production on submerged lands.

(1) Disposal of oil and gas waste in the coastal zone shall comply with the policies in this subsection.

(A) No new commercial oil and gas waste disposal pit shall be located in any CNRA.

(B) Oil and gas waste disposal pits shall be designed to prevent releases of pollutants that adversely affect coastal waters or critical areas.

(2) Discharge of oil and gas exploration and production wastewater in the coastal zone shall comply with the following policies.

(A) All discharges shall comply with all provisions of surface water quality standards established by the TNRCC under subsection (f) of this section.

(B) To the greatest extent practicable, new wastewater outfalls shall be located where the discharge will not adversely affect critical areas. Existing wastewater outfalls that adversely affect critical areas shall be either discontinued or relocated so as not to adversely affect critical areas within two years of the effective date of this section.

(C) The RRC shall notify the TNRCC and the TPWD upon receipt of an application for a new permit to discharge produced waters to waters under tidal influence. In determining compliance with the policies in this subsection, the RRC shall consider the effects of salinity from the discharge.

(3) The RRC shall comply with the policies in this subsection when issuing permits and adopting rules under the Texas Natural Resources Code, Chapter 91, for oil and gas waste, and under Texas Water Code, Chapter 26, and the Texas Natural Resources Code, Chapter 91, for oil and gas wastewater discharges.

(d) Construction and Operation of Solid Waste Treatment, Storage, and Disposal Facilities.

(1) Construction and operation of solid waste facilities in the coastal zone shall comply with the policies in this subsection. This subsection applies to both new facilities and areal expansion of existing facilities.

(A) A landfill at which hazardous waste is received for a fee shall not be located in a critical area, critical dune area, critical erosion area, or a 100-year floodplain of a perennial stream, delineated on a flood map adopted by the Federal Emergency Management Agency after September 1, 1985, as zone A1-99, VO, or V1-30. This provision shall not apply to any facility for which a notice of intent to file an application, or an application, has been filed with the TNRCC as of September 1, 1985.

(B) Except as provided in clauses (i) and (ii) of this subparagraph, a hazardous waste landfill shall not be located in a special hazard area existing before site development except in an area with a flood depth of less than three feet. Any hazardous waste landfill within a special hazard area must be designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100-year flood event.

(i) The areal expansion of a landfill in a special hazard area may be allowed if the applicant demonstrates that the facility design will prevent the physical transport of any hazardous waste by a 100-year flood event.

(ii) A new commercial hazardous waste management facility landfill unit may not be located in a special hazard area, unless the applicant demonstrates that the facility design will prevent the physical transport of any hazardous waste by a 100-year flood event.

(C) Hazardous waste storage or processing facilities, land treatment facilities, waste piles, and storage surface impoundments shall not be located in special hazard areas unless they are designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100-year flood event.

(D) Hazardous waste land treatment facilities, waste piles, storage surface impoundments, and landfills shall not be located within 1,000 feet of an area subject to active coastal shoreline erosion, if the area is protected by a barrier island or peninsula, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. On coastal shorelines which are subject to active shoreline erosion and which are unprotected by a barrier island or peninsula, a separation distance from the shoreline to the facility must be at least 5,000 feet, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water.

(E) Hazardous waste storage or processing facilities, land treatment facilities, waste piles, storage surface impoundments, and landfills shall not be located in coastal wetlands, or in any CNRA that is the critical habitat of an endangered species of plant or animal unless the design, construction, and operation features of the facility will prevent adverse effects on the critical habitat of the endangered species.

(F) Hazardous waste land treatment facilities, waste piles, storage surface impoundments, and landfills shall not be located on coastal barriers.

(G) Hazardous waste landfills are prohibited if there is a practicable alternative to such a landfill that is reasonably available to manage the types and classes of hazardous waste which might be disposed at the landfill.

(H) The TNRCC shall not issue a permit for a new hazardous waste management facility or the areal expansion of an existing hazardous waste facility unless it finds that the proposed site, when evaluated in light of proposed design, construction, and operational features, reasonably minimizes possible contamination of coastal waters.

(I) New solid waste facilities and areal expansion of existing solid waste facilities shall be sited, designed, constructed, and operated to prevent releases of pollutants that may adversely affect CNRAs and, at a minimum, comply with standards established under the Solid Waste Disposal Act, 42 United States Code Annotated, §§6901 et seq.

(2) The TNRCC shall comply with the policies in this subsection when issuing permits and adopting rules under Texas Health and Safety Code, Chapter 361.

(e) Prevention, Response and Remediation of Oil Spills.

(1) The GLO regulations governing prevention of, response to and remediation of coastal oil spills shall provide for measures to prevent coastal oil spills and to ensure adequate response and removal actions. The GLO regulations for certification of vessels and facilities that handle oil shall be designed to ensure that vessels and facilities are capable of prompt response and adequate removal of unauthorized discharges of oil. The GLO regulations adopted pursuant to the Oil Spill Prevention and Response Act (OSPRA), Texas Natural Resources Code, Chapter 40, shall be consistent with the State Coastal Discharge Contingency Plan adopted pursuant to OSPRA; and the National Contingency Plan adopted pursuant to the Federal Water Pollution Control Act, 33 United States Code Annotated, Chapter 26.

(2) Natural Resource Damage Assessment. GLO rules under OSPRA governing the assessment of damages to natural resources injured as the result of an unauthorized discharge of oil into coastal waters shall provide for reasonable and rational procedures for assessing damages and shall take into account the unique circumstances of the spill incident. The costs of assessing the damages shall not be disproportionate to the value of the injured resources. Plans for the restoration, rehabilitation, replacement or acquisition of equivalent resources shall provide for participation by the public and shall be designed to promote the restoration of the injured resources with all deliberate speed. The GLO rules shall be consistent with other state rules and policies and with the CMP goals and policies.

(f) Discharge of Municipal and Industrial Wastewater to Coastal Waters.

(1) TNRCC rules shall:

(A) comply with the requirements of the Clean Water Act, 33 United States Code Annotated, §§1251 et seq, and implementing regulations at Code of Federal Regulations, Title 40, which include establishing surface water quality standards in order to protect designated uses of coastal waters, including the protection of uses for water supply, recreational purposes, and propagation and protection of terrestrial and aquatic life, and establishing water-quality-based effluent limits, including toxicity monitoring and specific toxicity or chemical limits as necessary to protect designated uses of coastal waters;

(B) provide for the assessment of water quality on a coastal watershed basis once every two years, as required by the Texas Water Code, §26.0135(d);

(C) to the greatest extent practicable, provide that all permits for the discharge of wastewater within a given watershed or region of a single watershed contain the same expiration date in order to evaluate the combined effects of permitted discharges on water quality within that watershed or region;

(D) identify and rank waters that are not attaining designated uses and establish total maximum daily pollutant loads in accordance with those rankings using scientifically valid models calibrated and validated with monitored data and with public input from affected stakeholders; and

(E) require that increases in pollutant loads to coastal waters shall not:

(i) impair designated uses of coastal waters; or

(ii) result in degradation of coastal waters that exceed fishable/swimmable quality except in cases where lowering coastal water quality is necessary for important economic or social development.

(2) Discharge of municipal and industrial wastewater in the coastal zone shall comply with the following policies.

(A) Discharges shall comply with water-quality-based effluent limits.

(B) Discharges that increase pollutant loadings to coastal waters shall not impair designated uses of coastal waters and shall not significantly degrade coastal water quality unless necessary for important economic or social development.

(C) To the greatest extent practicable, new wastewater outfalls shall be located where they will not adversely affect critical areas.

(3) The TNRCC shall comply with the policies in this subsection when adopting rules and authorizing wastewater discharges under Texas Water Code, Chapter 26.

(4) The TNRCC shall consult with the Texas Department of Health when reviewing permit applications for wastewater discharges that may significantly adversely affect oyster reefs.

(g) Nonpoint Source (NPS) Water Pollution.

(1) State agencies and subdivisions with authority to manage NPS pollution shall cooperate in the development and implementation of a coordinated program to reduce NPS pollution in order to restore and protect coastal waters.

(2) In an area that the TSSWCB identifies as having or having the potential to develop agricultural or silvicultural NPS water quality problems or an area within the coastal zone, the TSSWCB shall establish a water quality management plan certification program that provides, through the local soil and water conservation district, for the development, supervision, and monitoring of voluntary individual water quality management plans for agricultural and silvicultural lands. Each plan must be developed, maintained, and implemented under rules and criteria adopted by the TSSWCB and discharges under such a plan may not cause a violation of state water quality standards established by the TNRCC. The TSSWCB's rules shall certify a plan that satisfies the TSSWCB rules and criteria and discharges which do not cause a violation of state water quality standards established by the TNRCC. This policy is not intended, nor shall it be interpreted, to require the TSSWCB to establish non-voluntary requirements for the development, maintenance, or implementation of individual water quality management plans.

(3) TNRCC rules under Texas Health and Safety Code, Chapter 366, governing on-site sewage disposal systems, and TNRCC rules under Texas Water Code, Chapter 26, Subchapter I, governing underground storage tanks, shall require that on-site disposal systems and underground storage tanks be located, designed, operated, inspected, and maintained so as to prevent releases of pollutants that may adversely affect coastal waters.

(4) This policy shall not be interpreted or applied so as to require that either a National Pollution Discharge Elimination System (NPDES) permit for stormwater discharges issued under the Clean Water Act, §402(p), or an NPDES permit for a concentrated animal feeding operation, requiring no discharge up to and including a 25-year, 24-hour frequency storm, provide additional NPS pollution control measures in addition to those required in the permit.

(h) Development in Critical Areas.

(1) Dredging and construction of structures in, or the discharge of dredged or fill material into, critical areas shall comply with the policies in this subsection. In implementing this subsection, cumulative and secondary adverse effects of these activities will be considered.

(A) The policies in this subsection shall be applied in a manner consistent with the goal of achieving no net loss of critical area functions and values.

(B) Persons proposing development in critical areas shall demonstrate that no practicable alternative with fewer adverse effects is available.

(i) Adverse effects on critical areas shall be avoided to the greatest extent practicable.

(ii) Unavoidable adverse effects shall be minimized to the greatest extent practicable by limiting the degree or magnitude of the activity and its implementation.

(iii) Appropriate and practicable compensatory mitigation shall be required to the greatest extent practicable for all adverse effects that cannot be avoided or minimized.

(D) Compensatory mitigation includes restoring adversely affected critical areas or replacing adversely affected critical areas by creating new critical areas. Compensatory mitigation should be undertaken, when practicable, in areas adjacent or contiguous to the affected critical areas (on-site). If on-site compensatory mitigation is not practicable, compensatory mitigation should be undertaken in close physical proximity to the affected critical areas if practicable and in the same watershed if possible (off-site). Compensatory mitigation should also attempt to replace affected critical areas with critical areas with characteristics identical to or closely approximating those of the affected critical areas (in-kind). The preferred order of compensatory mitigation is:

(i) on-site, in-kind;

(ii) off-site, in-kind;

(iii) on-site, out-of-kind; and

(iv) off-site, out-of-kind.

(E) Mitigation banking is acceptable compensatory mitigation if use of the mitigation bank has been approved by the agency authorizing the development and mitigation credits are available for withdrawal. Preservation through acquisition for public ownership of unique critical areas or other ecologically important areas may be acceptable compensatory mitigation in exceptional circumstances. Examples of this include areas of high priority for preservation or restoration, areas whose functions and values are difficult to replicate, or areas not adequately protected by regulatory programs. Acquisition will normally be allowed only in conjunction with preferred forms of compensatory mitigation.

(F) In determining compensatory mitigation requirements, the impaired functions and values of the affected critical area shall be replaced on a one-to-one ratio. Replacement of functions and values on a one-to-one ratio may require restoration or replacement of the physical area affected on a ratio higher than one-to-one. While no net loss of critical area functions and values is the goal, it is not required in individual cases where mitigation is not practicable or would result in only inconsequential environmental benefits. It is also important to recognize that there are circumstances where the adverse effects of the activity are so significant that, even if alternatives are not available, the activity may not be permitted regardless of the compensatory mitigation proposed.

(G) Development in critical areas shall not be authorized if significant degradation of critical areas will occur. Significant degradation occurs if:

(i) the activity will jeopardize the continued existence of species listed as endangered or threatened, or will result in likelihood of the destruction or adverse modification of a habitat determined to be a critical habitat under the Endangered Species Act, 16 United States Code Annotated, §§1531-1544;

(ii) the activity will cause or contribute, after consideration of dilution and dispersion, to violation of any applicable surface water quality standards established under subsection (f) of this section;

(iii) the activity violates any applicable toxic effluent standard or prohibition established under subsection (f) of this section;

(iv) the activity violates any requirement imposed to protect a marine sanctuary designated under the Marine Protection, Research, and Sanctuaries Act of 1972, 33 United States Code Annotated, Chapter 27; or

(v) taking into account the nature and degree of all identifiable adverse effects, including their persistence, permanence, areal extent, and the degree to which these effects will have been mitigated pursuant to subparagraphs (C) and (D) of this paragraph, the activity will, individually or collectively, cause or contribute to significant adverse effects on:

(I) human health and welfare, including effects on water supplies, plankton, benthos, fish, shellfish, wildlife, and consumption of fish and wildlife;

(II) the life stages of aquatic life and other wildlife dependent on aquatic ecosystems, including the transfer, concentration, or spread of pollutants or their byproducts beyond the site, or their introduction into an ecosystem, through biological, physical, or chemical processes;

(III) ecosystem diversity, productivity, and stability, including loss of fish and wildlife habitat or loss of the capacity of a coastal wetland to assimilate nutrients, purify water, or reduce wave energy; or

(IV) generally accepted recreational, aesthetic or economic values of the critical area which are of exceptional character and importance.

(2) The TNRCC and the RRC shall comply with the policies in this subsection when issuing certifications and adopting rules under Texas Water Code, Chapter 26, and the Texas Natural Resources Code, Chapter 91, governing certification of compliance with surface water quality standards for federal actions and permits authorizing development affecting critical areas; provided that activities exempted from the requirement for a permit for the discharge of dredged or fill material, described in Code of Federal Regulations, Title 33, §323.4 and/or Code of Federal Regulations, Title 40, §232.3, including but not limited to normal farming, silviculture, and ranching activities, such as plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices, shall not be considered activities for which a certification is required. The GLO and the SLB shall comply with the policies in this subsection when approving oil, gas, or other mineral lease plans of operation or granting surface leases, easements, and permits and adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 51-53, and Texas Water Code, Chapter 61, governing development affecting critical areas on state submerged lands and private submerged lands, and when issuing approvals and adopting rules under Texas Civil Statutes, Article 5421u, for mitigation banks operated by subdivisions of the state.

(3) Agencies required to comply with this subsection will coordinate with one another and with federal agencies when evaluating alternatives, determining appropriate and practicable mitigation, and assessing significant degradation. Those agencies' rules governing authorizations for development in critical areas shall require a demonstration that the requirements of paragraph (1)(A)-(G) of this subsection have been satisfied.

(4) For any dredging or construction of structures in, or discharge of dredged or fill material into, critical areas that is subject to the requirements of §501.15 of this title (relating to Policy for Major Actions), data and information on the cumulative and secondary adverse affects of the project need not be produced or evaluated to comply with this subsection if such data and information is produced and evaluated in compliance with §501.15(b)-(c) of this title (relating to Policy for Major Actions).

(i) Construction of Waterfront Facilities and Other Structures on Submerged Lands.

(1) Development on submerged lands shall comply with the policies in this subsection.

(A) Marinas shall be designed and, to the greatest extent practicable, sited so that tides and currents will aid in flushing of the site or renew its water regularly.

(B) Marinas designed for anchorage of private vessels shall provide facilities for the collection of waste, refuse, trash, and debris.

(C) Marinas with the capacity for long-term anchorage of more than ten vessels shall provide pump-out facilities for marine toilets, or other such measures or facilities that provide an equal or better level of water quality protection.

(D) Marinas, docks, piers, wharves and other structures shall be designed and, to the greatest extent practicable, sited to avoid and otherwise minimize adverse effects on critical areas from boat traffic to and from those structures.

(E) Construction of docks, piers, wharves, and other structures shall be preferred instead of authorizing dredging of channels or basins or filling of submerged lands to provide access to coastal waters if such construction is practicable, environmentally preferable, and will not interfere with commercial navigation.

(F) Piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs (including artificial reefs for compensatory mitigation) shall be limited to the minimum necessary to serve the project purpose and shall be constructed in a manner that:

(i) does not significantly interfere with public navigation;

(ii) does not significantly interfere with the natural coastal processes which supply sediments to shore areas or otherwise exacerbate erosion of shore areas; and

(iii) avoids and otherwise minimizes shading of critical areas and other adverse effects.

(G) Facilities shall be located at sites or designed and constructed to the greatest extent practicable to avoid and otherwise minimize the potential for adverse effects from:

(i) construction and maintenance of other development associated with the facility;

(ii) direct release to coastal waters and critical areas of pollutants from oil or hazardous substance spills or stormwater runoff; and

(iii) deposition of airborne pollutants in coastal waters and critical areas.

(H) Where practicable, pipelines, transmission lines, cables, roads, causeways, and bridges shall be located in existing rights-of-way or previously disturbed areas if necessary to avoid or minimize adverse effects and if it does not result in unreasonable risks to human health, safety, and welfare.

(I) To the greatest extent practicable, construction of facilities shall occur at sites and times selected to have the least adverse effects on recreational uses of CNRAs and on spawning or nesting seasons or seasonal migrations of terrestrial and aquatic wildlife.

(J) Facilities shall be located at sites which avoid the impoundment and draining of coastal wetlands. If impoundment or draining cannot be avoided, adverse effects to the impounded or drained wetlands shall be mitigated in accordance with the sequencing requirements of subsection (h) of this section. To the greatest extent practicable, facilities shall be located at sites at which expansion will not result in development in critical areas.

(K) Where practicable, piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs shall be constructed with materials that will not cause any adverse effects on coastal waters or critical areas.

(L) Developed sites shall be returned as closely as practicable to pre-project conditions upon completion or cessation of operations by the removal of facilities and restoration of any significantly degraded areas, unless:

(i) the facilities can be used for public purposes or contribute to the maintenance or enhancement of coastal water quality, critical areas, beaches, submerged lands, or shore areas; or

(ii) restoration activities would further degrade CNRAs.

(M) Water-dependent uses and facilities shall receive preference over those uses and facilities that are not water-dependent.

(N) Nonstructural erosion response methods such as beach nourishment, sediment bypassing, nearshore sediment berms, and planting of vegetation shall be preferred instead of structural erosion response methods.

(O) Major residential and recreational waterfront facilities shall to the greatest extent practicable accommodate public access to coastal waters and preserve the public's ability to enjoy the natural aesthetic values of coastal submerged lands.

(P) Activities on submerged land shall avoid and otherwise minimize any significant interference with the public's use of and access to such lands.

(Q) Erosion of Gulf beaches and coastal shore areas caused by construction or modification of jetties, breakwaters, groins, or shore stabilization projects shall be mitigated to the extent the costs of mitigation are reasonably proportionate to the benefits of mitigation. Factors that shall be considered in determining whether the costs of mitigation are reasonably proportionate to the cost of the construction or modification and benefits include, but are not limited to, environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits.

(3) The GLO and the SLB, in governing development on state submerged lands, shall comply with the policies in this subsection when approving oil, gas, and other mineral lease plans of operation and granting surface leases, easements, and permits and adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 51-53, and Texas Water Code, Chapter 61.

(j) Dredging and Dredged Material Disposal and Placement.

(1) Dredging and the disposal and placement of dredged material shall avoid and otherwise minimize adverse effects to coastal waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches to the greatest extent practicable. The policies of this subsection are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public. In implementing this subsection, cumulative and secondary adverse effects of dredging and the disposal and placement of dredged material and the unique characteristics of affected sites shall be considered.

(A) Dredging and dredged material disposal and placement shall not cause or contribute, after consideration of dilution and dispersion, to violation of any applicable surface water quality standards established under subsection (f) of this section.

(B) Except as otherwise provided in subparagraph (D) of this paragraph, adverse effects on critical areas from dredging and dredged material disposal or placement shall be avoided and otherwise minimized, and appropriate and practicable compensatory mitigation shall be required, in accordance with subsection (h) of this section.

(C) Except as provided in subparagraph (D) of this paragraph, dredging and the disposal and placement of dredged material shall not be authorized if:

(i) there is a practicable alternative that would have fewer adverse effects on coastal waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches, so long as that alternative does not have other significant adverse effects;

(ii) all appropriate and practicable steps have not been taken to minimize adverse effects on coastal waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches; or

(iii) significant degradation of critical areas under subsection (h)(1)(G)(v) of this section would result.

(D) A dredging or dredged material disposal or placement project that would be prohibited solely by application of subparagraph (C) of this paragraph may be allowed if it is determined to be of overriding importance to the public and national interest in light of economic impacts on navigation and maintenance of commercially navigable waterways.

(2) Adverse effects from dredging and dredged material disposal and placement shall be minimized as required in paragraph (1) of this subsection. Adverse effects can be minimized by employing the techniques in this paragraph where appropriate and practicable.

(A) Adverse effects from dredging and dredged material disposal and placement can be minimized by controlling the location and dimensions of the activity. Some of the ways to accomplish this include:

(i) locating and confining discharges to minimize smothering of organisms;

(ii) locating and designing projects to avoid adverse disruption of water inundation patterns, water circulation, erosion and accretion processes, and other hydrodynamic processes;

(iii) using existing or natural channels and basins instead of dredging new channels or basins, and discharging materials in areas that have been previously disturbed or used for disposal or placement of dredged material;

(iv) limiting the dimensions of channels, basins, and disposal and placement sites to the minimum reasonably required to serve the project purpose, including allowing for reasonable overdredging of channels and basins, and taking into account the need for capacity to accommodate future expansion without causing additional adverse effects;

(v) discharging materials at sites where the substrate is composed of material similar to that being discharged;

(vi) locating and designing discharges to minimize the extent of any plume and otherwise control dispersion of material; and

(vii) avoiding the impoundment or drainage of critical areas.

(B) Dredging and disposal and placement of material to be dredged shall comply with applicable standards for sediment toxicity. Adverse effects from constituents contained in materials discharged can be minimized by treatment of or limitations on the material itself. Some ways to accomplish this include:

(i) disposal or placement of dredged material in a manner that maintains physiochemical conditions at discharge sites and limits or reduces the potency and availability of pollutants;

(ii) limiting the solid, liquid, and gaseous components of material discharged;

(iii) adding treatment substances to the discharged material; and

(iv) adding chemical flocculants to enhance the deposition of suspended particulates in confined disposal areas.

(C) Adverse effects from dredging and dredged material disposal or placement can be minimized through control of the materials discharged. Some ways of accomplishing this include:

(i) use of containment levees and sediment basins designed, constructed, and maintained to resist breaches, erosion, slumping, or leaching;

(ii) use of lined containment areas to reduce leaching where leaching of chemical constituents from the material is expected to be a problem;

(iii) capping in-place contaminated material or, selectively discharging the most contaminated material first and then capping it with the remaining material;

(iv) properly containing discharged material and maintaining discharge sites to prevent point and nonpoint pollution; and

(v) timing the discharge to minimize adverse effects from unusually high water flows, wind, wave, and tidal actions.

(D) Adverse effects from dredging and dredged material disposal or placement can be minimized by controlling the manner in which material is dispersed. Some ways of accomplishing this include:

(i) where environmentally desirable, distributing the material in a thin layer;

(ii) orienting material to minimize undesirable obstruction of the water current or circulation patterns;

(iii) using silt screens or other appropriate methods to confine suspended particulates or turbidity to a small area where settling or removal can occur;

(iv) using currents and circulation patterns to mix, disperse, dilute, or otherwise control the discharge;

(v) minimizing turbidity by using a diffuser system or releasing material near the bottom;

(vi) selecting sites or managing discharges to confine and minimize the release of suspended particulates and turbidity and maintain light penetration for organisms; and

(vii) setting limits on the amount of material to be discharged per unit of time or volume of receiving waters.

(E) Adverse effects from dredging and dredged material disposal or placement operations can be minimized by adapting technology to the needs of each site. Some ways of accomplishing this include:

(i) using appropriate equipment, machinery, and operating techniques for access to sites and transport of material, including those designed to reduce damage to critical areas;

(ii) having personnel on site adequately trained in avoidance and minimization techniques and requirements; and

(iii) designing temporary and permanent access roads and channel spanning structures using culverts, open channels, and diversions that will pass both low and high water flows, accommodate fluctuating water levels, and maintain circulation and faunal movement.

(F) Adverse effects on plant and animal populations from dredging and dredged material disposal or placement can be minimized by:

(i) avoiding changes in water current and circulation patterns that would interfere with the movement of animals;

(ii) selecting sites or managing discharges to prevent or avoid creating habitat conducive to the development of undesirable predators or species that have a competitive edge ecologically over indigenous plants or animals;

(iii) avoiding sites having unique habitat or other value, including habitat of endangered species;

(iv) using planning and construction practices to institute habitat development and restoration to produce a new or modified environmental state of higher ecological value by displacement of some or all of the existing environmental characteristics;

(v) using techniques that have been demonstrated to be effective in circumstances similar to those under consideration whenever possible and, when proposed development and restoration techniques have not yet advanced to the pilot demonstration stage, initiating their use on a small scale to allow corrective action if unanticipated adverse effects occur;

(vi) timing dredging and dredged material disposal or placement activities to avoid spawning or migration seasons and other biologically critical time periods; and

(vii) avoiding the destruction of remnant natural sites within areas already affected by development.

(G) Adverse effects on human use potential from dredging and dredged material disposal or placement can be minimized by:

(i) selecting sites and following procedures to prevent or minimize any potential damage to the aesthetically pleasing features of the site, particularly with respect to water quality;

(ii) selecting sites which are not valuable as natural aquatic areas;

(iii) timing dredging and dredged material disposal or placement activities to avoid the seasons or periods when human recreational activity associated with the site is most important; and

(iv) selecting sites that will not increase incompatible human activity or require frequent dredge or fill maintenance activity in remote fish and wildlife areas.

(H) Adverse effects from new channels and basins can be minimized by locating them at sites:

(i) that ensure adequate flushing and avoid stagnant pockets; or

(ii) that will create the fewest practicable adverse effects on CNRAs from additional infrastructure such as roads, bridges, causeways, piers, docks, wharves, transmission line crossings, and ancillary channels reasonably likely to be constructed as a result of the project; or

(iii) with the least practicable risk that increased vessel traffic could result in navigation hazards, spills, or other forms of contamination which could adversely affect CNRAs;

(iv) provided that, for any dredging of new channels or basins subject to the requirements of §501.15 of this title (relating to Policy for Major Actions), data and information on minimization of secondary adverse effects need not be produced or evaluated to comply with this subparagraph if such data and information is produced and evaluated in compliance with §501.15(b)(1) of this title (relating to Policy for Major Actions).

(3) Disposal or placement of dredged material in existing contained dredge disposal sites identified and actively used as described in an environmental assessment or environmental impact statement issued prior to the effective date of this chapter shall be presumed to comply with the requirements of paragraph (1) of this subsection unless modified in design, size, use, or function.

(4) Dredged material from dredging projects in commercially navigable waterways is a potentially reusable resource and must be used beneficially in accordance with this policy.

(A) If the costs of the beneficial use of dredged material are reasonably comparable to the costs of disposal in a non-beneficial manner, the material shall be used beneficially.

(B) If the costs of the beneficial use of dredged material are significantly greater than the costs of disposal in a non-beneficial manner, the material shall be used beneficially unless it is demonstrated that the costs of using the material beneficially are not reasonably proportionate to the costs of the project and benefits that will result. Factors that shall be considered in determining whether the costs of the beneficial use are not reasonably proportionate to the benefits include, but are not limited to:

(i) environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits;

(ii) the proximity of the beneficial use site to the dredge site; and

(iii) the quantity and quality of the dredged material and its suitability for beneficial use.

(i) projects designed to reduce or minimize erosion or provide shoreline protection;

(ii) projects designed to create or enhance public beaches or recreational areas;

(iii) projects designed to benefit the sediment budget or littoral system;

(iv) projects designed to improve or maintain terrestrial or aquatic wildlife habitat;

(v) projects designed to create new terrestrial or aquatic wildlife habitat, including the construction of marshlands, coastal wetlands, or other critical areas;

(vi) projects designed and demonstrated to benefit benthic communities or aquatic vegetation;

(vii) projects designed to create wildlife management areas, parks, airports, or other public facilities;

(viii) projects designed to cap landfills or other waste disposal areas;

(ix) projects designed to fill private property or upgrade agricultural land, if cost-effective public beneficial uses are not available; and

(x) projects designed to remediate past adverse impacts on the coastal zone.

(5) If dredged material cannot be used beneficially as provided in paragraph (4)(B) of this subsection, to avoid and otherwise minimize adverse effects as required in paragraph (1) of this subsection, preference will be given to the greatest extent practicable to disposal in:

(A) contained upland sites;

(B) other contained sites; and

(6) For new sites, dredged materials shall not be disposed of or placed directly on the boundaries of submerged lands or at such location so as to slump or migrate across the boundaries of submerged lands in the absence of an agreement between the affected public owner and the adjoining private owner or owners that defines the location of the boundary or boundaries affected by the deposition of the dredged material.

(7) Emergency dredging shall be allowed without a prior consistency determination as required in the applicable consistency rule when:

(A) there is an unacceptable hazard to life or navigation;

(B) there is an immediate threat of significant loss of property; or

(C) an immediate and unforeseen significant economic hardship is likely if corrective action is not taken within a time period less than the normal time needed under standard procedures. The council secretary shall be notified at least 24 hours prior to commencement of any emergency dredging operation by the agency or entity responding to the emergency. The notice shall include a statement demonstrating the need for emergency action. Prior to initiation of the dredging operations the project sponsor or permit-issuing agency shall, if possible, make all reasonable efforts to meet with council's designated representatives to ensure consideration of and consistency with applicable policies in this section. Compliance with all applicable policies in this section shall be required at the earliest possible date. The permit-issuing agency and the applicant shall submit a consistency determination within 60 days after the emergency operation is complete.

(8) Mining of sand, shell, marl, gravel, and mudshell on submerged lands shall be prohibited unless there is an affirmative showing of no significant impact on erosion within the coastal zone and no significant adverse effect on coastal water quality or terrestrial and aquatic wildlife habitat within any CNRA.

(9) The GLO and the SLB shall comply with the policies in this subsection when approving oil, gas, and other mineral lease plans of operation and granting surface leases, easements, and permits and adopting rules under the Texas Natural Resources Code, Chapters 32, 33, and 51-53, and Texas Water Code, Chapter 61, for dredging and dredged material disposal and placement. TxDOT shall comply with the policies in this section when adopting rules and taking actions as local sponsor of the Gulf Intracoastal Waterway under Texas Civil Statutes, Article 5415e-2. The TNRCC and the RRC shall comply with the policies in this subsection when issuing certifications and adopting rules under Texas Water Code, Chapter 26, and the Texas Natural Resources Code, Chapter 91, governing certification of compliance with surface water quality standards for federal actions and permits authorizing dredging or the discharge or placement of dredged material. The TPWD shall comply with the policies in this subsection when adopting rules at Chapter 57 of this title (relating to Fisheries) governing dredging and dredged material disposal and placement. The TPWD shall comply with the policies in paragraph (8) of this subsection when adopting rules and issuing permits under Texas Parks and Wildlife Code, Chapter 86, governing the mining of sand, shell, marl, gravel, and mudshell.

(k) Construction in the Beach/Dune System.

(1) Construction in critical dune areas or areas adjacent to or on Gulf beaches shall comply with the following policies:

(A) Construction within a critical dune area that results in the material weakening of dunes and material damage to dune vegetation shall be prohibited.

(B) Construction within critical dune areas that does not materially weaken dunes or materially damage dune vegetation shall be sited, designed, constructed, maintained, and operated so that adverse "effects" (as defined in §15.2 of this title (relating to Coastal Area Planning) on the sediment budget and critical dune areas are avoided to the greatest extent practicable. For purposes of this subsection, practicability shall be determined by considering the effectiveness, scientific feasibility, and commercial availability of the technology or technique. Cost of the technology or technique shall also be considered. Adverse effects (as defined in Chapter 15 of this title (relating to Coastal Area Planning) that cannot be avoided shall be:

(i) minimized by limiting the degree or magnitude of the activity and its implementation;

(ii) rectified by repairing, rehabilitating, or restoring the adversely affected dunes and dune vegetation; and

(iii) compensated for on-site or off-site by replacing the resources lost or damaged seaward of the dune protection line.

(C) Rectification and compensation for adverse effects that cannot be avoided or minimized shall provide at least a one-to-one replacement of the dune volume and vegetative cover, and preference shall be given to stabilization of blowouts and breaches and on-site compensation.

(D) The ability of the public, individually and collectively, to exercise its rights of use of and access to and from public beaches shall be preserved and enhanced.

(E) Non-structural erosion response methods such as beach nourishment, sediment bypassing, nearshore sediment berms, and planting of vegetation shall be preferred instead of structural erosion response methods. Subdivisions shall not authorize the construction of a new erosion response structure within the beach/dune system, except as provided by paragraph (2) of this subsection or a retaining wall located more than 200 feet landward of the line of vegetation. Subdivisions shall not authorize the enlargement, improvement, repair or maintenance of existing erosion response structures on the public beach. Subdivisions shall not authorize the repair or maintenance of existing erosion response structures within 200 feet landward of the line of vegetation except as provided in §15.6(d) of this title (relating to Concurrent Dune Protection and Beachfront Construction Standards).

(2) Construction of structural shore protection projects, including geotextile shore protection projects, in critical dune areas or areas adjacent to or on Gulf Beaches shall comply with the following policies:

(A) The size and the length of a shore protection project shall be determined as part of a site-specific construction and maintenance plan, taking into account both technical requirements and policy issues as described under this paragraph, and shall be limited to the minimum size necessary to fulfill the project's goals and purposes.

(B) A shore protection project shall only be used to protect community developments, public infrastructure, and for other lawful public purposes and shall not be used solely to protect individual structures or properties. A community development may include a neighborhood or aggregation of residences or commercial structures.

(C) A shore protection project located parallel to the shore shall be located landward of the boundary of state-owned submerged land as determined by a coastal boundary survey conducted in accordance with Texas Natural Resources Code §33.136, and shall avoid and otherwise minimize adverse effects to dunes and dune vegetation.

(D) To maximize the protection offered by a shore protection project, to enhance the survivability of the project, and to minimize adverse effects to natural resources, a shore protection project shall be located according to the following preferred order:

(i) In an area where a foredune ridge is present, where practicable, a shore protection project shall be located landward of the foredune ridge;

(ii) Where there is no foredune ridge, a project shall be located landward of the line of vegetation, where practicable;

(iii) Where it is not practicable to locate a shore protection project landward of the line of vegetation, a project shall be located at the line of vegetation; or

(iv) Where there is no other practicable location, a shore protection project shall be located at the most landward point of the public beach provided that the project sponsor has provided financial assurance that the pre-project beach width will be maintained through beach nourishment.

(E) A shore protection project shall not be located in a sea turtle nesting area or in any other location where the project will adversely affect an endangered species.

(F) Shore protection projects shall not be constructed on stable or accreting beaches.

(G) A shore protection project shall be designed to avoid and otherwise minimize any adverse effects to adjacent beaches or properties at either end of a project.

(H) To the extent allowed by law, a dune protection permit is required to authorize the construction of a shore protection project in the beach/dune system.

(I) A mitigation plan shall be submitted for any adverse effects to critical dune areas as a result of the construction and presence of a shore protection project.

(J) Public input shall be incorporated into a local government's review and approval of a shore protection project. Methods to obtain public input include public meetings, notices by mail to affected property owners, publication of notices in local newspapers, the Texas Register, and web sites.

(K) The success criteria for a shore protection project shall be developed by a project sponsor with consideration for the health and maintenance of the beach/dune system.

(L) The sponsor of a shore protection project shall be responsible for the ongoing maintenance of the project and, if necessary, beach nourishment and/or removal of the project.

(M) Sand from the beach/dune system shall not be used to fill or cover a shore protection project. Where appropriate, a shore protection project shall remain covered with sand and dune vegetation with a preference for natural dune vegetation. The sand and vegetation used to cover a shore protection project shall conform to the standards for dune restoration projects as described in §15.4 (relating to Dune Protection Standards) and §15.7, (relating to Local Government Management of the Public Beach) of this title.

(N) Long-term monitoring of a shore protection project shall be required to determine the project's effect on the beach/dune system and the project's effectiveness. Prior to the construction of a shore protection project, a project sponsor shall collect scientifically valid baseline data for monitoring the line of vegetation, the extent of the dry beach, a beach profile, and any other characteristics necessary for evaluating the project's effectiveness.

(O) Existing public access in the area of a shore protection project shall be replicated if not enhanced. A local government shall not impair or close an existing public access point or close a public beach to pedestrian or vehicular traffic without prior approval of the GLO as required under the Open Beaches Act, Tex. Nat. Res. Code Ann., Chapter 61, and the Beach/Dune rules, Chapter 15 of this title.

(3) The GLO shall comply with the policies in this subsection when certifying local government dune protection and beach access plans and adopting rules under the Texas Natural Resources Code, Chapters 61 and 63. Local governments required by the Texas Natural Resources Code, Chapters 61 and 63, and Chapter 15 of this title (relating to Coastal Area Planning) to adopt dune protection and beach access plans shall comply with the applicable policies in this subsection when issuing beachfront construction certificates and dune protection permits.

(l) Development in Coastal Hazard Areas.

(1) Subdivisions participating in the National Flood Insurance Program shall adopt ordinances or orders governing development in special hazard areas under Texas Water Code, Chapter 16, Subchapter I, and Texas Local Government Code, Chapter 240, Subchapter Z, that comply with construction standards in regulations at Code of Federal Regulations, Title 44, Parts 59-60, adopted pursuant to the National Flood Insurance Act, 42 United States Code Annotated, §4001 et seq.

(2) Pursuant to the standards and procedures under the Texas Natural Resources Code, Chapter 33, Subchapter H, the GLO shall adopt or issue rules, recommendations, standards, and guidelines for erosion avoidance and remediation and for prioritizing critical erosion areas.

(m) Development Within Coastal Barrier Resource System Units and Otherwise Protected Areas on Coastal Barriers.

(1) Development of new infrastructure or major repair of existing infrastructure within or supporting development within Coastal Barrier Resource System Units and Otherwise Protected Areas designated on maps dated October 24, 1990, under the Coastal Barrier Resources Act, 16 United States Code Annotated, §3503(a), shall comply with the policies in this subsection.

(A) Development of publicly funded infrastructure shall be authorized only if it is essential for public health, safety, and welfare, enhances public use, or is required by law.

(B) Infrastructure shall be located at sites at which reasonably foreseeable future expansion will not require development in critical areas, critical dunes, Gulf beaches, and washover areas within Coastal Barrier Resource System Units or Otherwise Protected Areas.

(C) Infrastructure shall be located at sites that to the greatest extent practicable avoid and otherwise minimize the potential for adverse effects on critical areas, critical dunes, Gulf beaches, and washover areas within Coastal Barrier Resource System Units or Otherwise Protected Areas from:

(i) construction and maintenance of roads, bridges, and causeways; and

(ii) direct release to coastal waters, critical areas, critical dunes, Gulf beaches, and washover areas within Coastal Barrier Resource System Units or Otherwise Protected Areas of oil, hazardous substances, or stormwater runoff.

(D) Where practicable, infrastructure shall be located in existing rights-of-way or previously disturbed areas to avoid or minimize adverse effects within Coastal Barrier Resource System Units or Otherwise Protected Areas.

(E) Development of infrastructure shall occur at sites and times selected to have the least adverse effects practicable within Coastal Barrier Resource System Units or Otherwise Protected Areas on critical areas, critical dunes, Gulf beaches, and washover areas and on spawning or nesting areas or seasonal migrations of commercial, recreational, threatened, or endangered terrestrial or aquatic wildlife.

(2) TNRCC rules and approvals for the creation of special districts and for infrastructure projects funded by issuance of bonds by water, sanitary sewer, and wastewater drainage districts under Texas Water Code, Chapter 50; water control and improvement districts under Texas Water Code, Chapter 50; municipal utility districts under Texas Water Code, Chapter 54; regional plan implementation agencies under Texas Water Code, Chapter 54; special utility districts under Texas Water Code, Chapter 65; stormwater control districts under Texas Water Code, Chapter 66; and all other general and special law districts subject to and within the jurisdiction of the TNRCC, shall comply with the policies in this subsection. TxDOT rules and approvals under Texas Civil Statutes, Article 6663 et seq, governing planning, design, construction, and maintenance of transportation projects, shall comply with the policies in this subsection.

(n) Development in State Parks, Wildlife management Areas or Preserves. Development by a person other than the Parks and Wildlife Department that requires the use or taking of any public land in such areas shall comply with Texas Parks and Wildlife Code, Chapter 26.

(o) Alteration of Coastal Historic Areas.

(1) Development affecting a coastal historic area shall avoid and otherwise minimize alteration or disturbance of the site unless the site's excavation will promote historical, archaeological, educational, or scientific understanding.

(2) The THC shall comply with the policies in this subsection when adopting rules and issuing permits under the Texas Natural Resources Code, Chapter 191, governing alteration of coastal historic areas. The THC shall comply with the policies in this subsection when issuing reviews under the National Historic Preservation Act, §106 (16 United States Code Annotated, §470f), and the regulations enacted pursuant thereto, Code of Federal Regulations, Title 36, Chapter 1, Part 63.

(p) Transportation Projects.

(1) Transportation construction projects and maintenance programs within the coastal zone shall comply with the policies in this subsection.

(A) Pollution prevention procedures shall be incorporated into the construction and maintenance of transportation projects to minimize pollutant loading to coastal waters from erosion and sedimentation, use of pesticides and herbicides for maintenance of rights-of-way, and other pollutants from stormwater runoff.

(B) Transportation projects shall be located at sites that to the greatest extent practicable avoid and otherwise minimize the potential for adverse effects from construction and maintenance of additional roads, bridges, causeways, and other development associated with the project; and direct release to CNRAs of pollutants from oil or hazardous substance spills, contaminated sediments or stormwater runoff.

(C) Where practicable, transportation projects shall be located in existing rights-of-way or previously disturbed areas if necessary to avoid or minimize adverse effects.

(D) Where practicable, transportation projects shall be located at sites at which future expansion will not require development in coastal wetlands except where such construction is determined to be essential for evacuation in the case of a natural disaster.

(E) Construction and maintenance of transportation projects shall avoid the impoundment and draining of coastal wetlands. If impoundment or draining cannot be avoided, adverse effects to the impounded or drained wetlands shall be mitigated in accordance with the sequencing requirements of subsection (h) of this section.

(F) Construction of transportation projects shall occur at sites and times selected to have the least adverse effects practicable on recreational uses of CNRAs and on spawning or nesting seasons or seasonal migrations of terrestrial or aquatic species.

(G) Beach-quality sand from maintenance of roadways adjacent to Gulf beaches shall be beneficially used by placement on Gulf beaches where practicable. Where placement on Gulf beaches is not practicable, the material shall be placed in critical dune areas.

(2) TxDOT rules and project approvals under Texas Civil Statutes, Article 6663b and 6663c, and Texas Civil Statutes, Article 6674a et seq, governing transportation projects within the coastal zone, shall comply with the policies in this subsection.

(q) Emission of Air Pollutants. TNRCC rules under Texas Health and Safety Code, Chapter 382, governing emissions of air pollutants, shall comply with regulations at Code of Federal Regulations, Title 40, adopted pursuant to the Clean Air Act, 42 United States Code Annotated, §7401, et seq, to protect and enhance air quality in the coastal area so as to protect CNRAs and promote the public health, safety, and welfare.

(r) Appropriations of Water.

(1) Impoundments and diversion of state water within 200 stream miles of the coast, to commence from the mouth of the river thence inland, shall comply with the policies in this subsection.

(A) The TNRCC shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state. It is the public policy of the state to provide for the conservation and development of the state's natural resources, including:

(i) the control, storage, preservation, and distribution of the state's storm and floodwaters and the waters of its rivers and streams for irrigation, power, and other useful purposes;

(ii) the reclamation and irrigation of the state's arid, semiarid, and other land needing irrigation;

(iii) the reclamation and drainage of the state's overflowed land and other land needing drainage;

(iv) the conservation and development of its forest, water, and hydroelectric power;

(v) the navigation of the state's inland and coastal waters; and

(vi) the maintenance of a proper ecological environment of the bays and estuaries of Texas and the health of related living marine resources.

(B) In this subsection, "beneficial inflows" means a salinity, nutrient, and sediment loading regime adequate to maintain an ecologically sound environment in the receiving bay and estuary system that is necessary for the maintenance of productivity of economically important and ecologically characteristic sport or commercial fish and shellfish species and estuarine life upon which such fish and shellfish are dependent.

(C) In its consideration of an application for a permit to store, take, or divert water, the TNRCC shall assess the effects, if any, of the issuance of the permit on the bays and estuaries of Texas. For permits issued within an area that is 200 river miles of the coast, to commence from the mouth of the river thence inland, the TNRCC shall include in the permit, to the greatest extent practicable when considering all public interests, those conditions considered necessary to maintain beneficial inflows to any affected bay and estuary system.

(D) For the purposes of making a determination under subparagraph (C) of this paragraph, the TNRCC shall consider among other factors:

(i) the need for periodic freshwater inflows to supply nutrients and modify salinity to preserve the sound environment of the bay or estuary, using any available information, including studies and plans specified in and other studies considered by the TNRCC to be reliable; together with existing circumstances, natural or otherwise, that might prevent the conditions imposed from producing benefits;

(ii) the ecology and productivity of the affected bay and estuary system;

(iii) the expected effects on the public welfare of not including in the permit some or all of the conditions considered necessary to maintain the beneficial inflows to the affected bay or estuary;

(iv) the quantity of water requested and the proposed use of water by the applicant, as well as the needs of those who would be served by the applicant;

(v) the expected effects on the public welfare of the failure to issue all or part of the permit being considered; and

(vi) for the purposes of this subsection, the declarations as to preferences for competing uses of water as found in Texas Water Code, §11.024 and §11.033, as well as the public policy statement in subparagraph (A) of this paragraph.

(E) In its consideration of an application to store, take, or divert water, the TNRCC shall consider the effect, if any, of the issuance of the permit on existing instream uses and water quality of the stream or river to which the application applies. The TNRCC shall also consider the effect, if any, of the issuance of the permit on fish and wildlife habitats.

(F) On receipt of an application for a permit to store, take, or divert water, the TNRCC shall send a copy of the permit application and any subsequent amendments to the TPWD. In making a final decision on any application for a permit, the TNRCC, in addition to other information, evidence, and testimony presented, shall consider all information, evidence, or testimony presented by the TPWD and the TWDB.

(G) Permit conditions relating to beneficial inflows to affected bays and estuaries and instream uses may be suspended by the TNRCC if the TNRCC finds that an emergency exists and cannot practically be resolved in other ways. Before the TNRCC suspends a permit under this subparagraph, it must give written notice to the TPWD of the proposed suspension. The TNRCC shall give the TPWD an opportunity to submit comments on the proposed suspension within 72 hours from such time and the TNRCC shall consider those comments before issuing its order imposing the suspension.

(H) In its consideration of an application for a permit under this section, the TNRCC shall assess the effects, if any, of the issuance of the permit on water quality in coastal waters. In its consideration of an application for a permit to store, take, or divert water in excess of 5,000 acre feet per year, the commission shall assess the effects, if any, on the issuance of the permit on fish and wildlife habitats and may require the applicant to take reasonable actions to mitigate adverse effects on such habitat. In determining whether to require an applicant to mitigate adverse effects on a habitat, the TNRCC may consider any net benefit to habitat produced by the project. The TNRCC shall offset against any mitigation required by the United States Fish and Wildlife Service pursuant to Code of Federal Regulations, Title 33, §§320-330, any mitigation authorized by this section.

(I) Unappropriated water and other water of the state stored in any facility acquired by and under the control of the TWDB may be released without charge to relieve any emergency condition arising from drought, severe water shortage, or other calamity, if the TNRCC first determines the existence of the emergency and requests the TWDB to release the water.

(J) Five percent of the annual firm yield of water in any reservoir and associated works constructed with state financial participation within 200 river miles of the coast, to commence from the mouth of the river thence inland, is appropriated to the TPWD for use to make releases to bays and estuaries and for instream uses, and the TNRCC shall issue permits for this water to the TPWD under procedures adopted by the TNRCC. This subparagraph applies only to reservoirs and associated works on which construction begins on or after September 1, 1985. This subsection does not limit or repeal any other authority of or law relating to the TPWD or the TNRCC.

(K) The TWDB, in coordination with the TNRCC and TPWD, shall identify ways to assist in providing flows to meet instream needs, including protection of water quality, protection of terrestrial or aquatic wildlife habitat, and bay and estuary inflow needs, in the implementation of the Texas Water Bank, Texas Water Code, Chapter 15, Subchapter K. This may include, but not be limited to, the purchase by the TPWD and/or the TWDB of water rights deposited in the Texas Water Bank in order to provide for existing instream uses and beneficial inflows to bays and estuaries if funds are available and such purchase is not prohibited by law. The TNRCC shall facilitate the approval of any necessary permit amendments to achieve this purpose.

(L) An applicant for a new or amended water right permit shall submit a water conservation plan in accordance with 30 TAC §295.9 (relating to Conservation Plan). The TNRCC shall consider the information contained in the conservation plan in determining whether any feasible alternative to the proposed appropriation exists, whether the proposed amount to be appropriated as measured at the point of diversion is reasonable and necessary for the proposed use, the term and other conditions of the water right and to ensure that reasonable diligence will be used to avoid waste and achieve water conservation. Based upon its review, the TNRCC may deny or grant, in whole or in part, the requested appropriation.

(2) The TNRCC rules and authorizations under Texas Water Code, Chapter 11, governing review and action on applications for new permits or amendments proposing changes to existing permits for diversions or impoundments of state water within 200 stream miles of the coast, and TNRCC rules and approvals governing creation of districts and issuance of district bonds for levee and flood control projects within the coastal zone, shall comply with the policies in this subsection.

(s) Levee and Flood Control Projects.

(1) Drainage, reclamation, channelization, levee construction or modification, or flood- or floodwater-control infrastructure projects shall be designed, constructed, and maintained to avoid the impoundment and draining of coastal wetlands to the greatest extent practicable. If impoundment or draining of coastal wetlands cannot be avoided, adverse effects to the wetlands shall be mitigated in accordance with the sequencing requirements in subsection (h) of this section.

(2) TNRCC rules and approvals for the levee construction, modification, drainage, reclamation, channelization, or flood- or floodwater-control projects, pursuant to the Texas Water Code, §16.236, shall comply with the policies in this subsection.

(t) Marine Fishery Management.

(1) Fishery management measures shall conserve the state's renewable marine fishery resources, based upon the best available information, emphasizing protection and enhancement of the marine environment in such a manner as to provide for optimum sustained benefits and use to coastal fishing communities and to all the people of the state for present and future generations.

(2) Fishery management measures shall:

(A) protect the continuing health and sustainability of the marine fisheries resources of the state;

(B) be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the council;

(C) permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis;

(D) manage fish stocks as an integral biological unit, to the greatest extent practicable;

(E) assure proper quality control of marine resources that enter commerce;

(F) be fair and equitable to all the people of the state and, to the maximum extent practicable, be carried out so that no person acquires an excessive share of fishing privileges;

(G) include opportunity for public review and comment on proposed management measures; and

(H) be consistent, to the maximum extent practicable, with federal fishery management measures, rules, and fishery management plans and the rules of other states or interstate commissions.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 2, 2002.

TRD-200204204

Larry Soward

Chief Clerk, General Land Office

Coastal Coordination Council

Effective date: July 22, 2002

Proposal publication date: March 22, 2002

For further information, please call: (512) 305-9129

Part 18. TEXAS GROUNDWATER PROTECTION COMMITTEE

Chapter 601. GROUNDWATER CONTAMINATION REPORT

Subchapter A. GENERAL PROVISIONS RELATING TO PUBLIC FILES AND JOINT REPORT

31 TAC §§601.2, 601.3, 601.5

The Texas Groundwater Protection Committee (committee) adopts the amendments to §§601.2, 601.3, and 601.5, concerning General Provisions Relating to Public Files and Joint Report, without changes to the proposed text as published in the March 15, 2002 issue of the Texas Register (27 TexReg 1990) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The rules in Chapter 601 define the conditions that constitute groundwater contamination for the purpose of inclusion of cases in the public files for each state agency having responsibilities related to the protection of groundwater. The rules also describe the contents of the committee's Joint Groundwater Monitoring and Contamination Report required under Texas Water Code (TWC), 26.406. The report describes the current status of groundwater monitoring activities conducted by or required by each agency at regulated facilities or associated with regulated activities; contains a description of each case of groundwater contamination documented during the previous calender year; contains a description of each case of contamination documented during the previous year for which enforcement action was incomplete at the time of issuance of the preceding report; and indicates the status of enforcement action for each case of contamination which is listed.

The purpose of the amendments is to implement legislative changes to TWC, §26.403(c) regarding committee membership and to update the rules to reflect the change of agency name from the Texas Natural Resource Conservation Commission (TNRCC) to the Texas Commission on Environmental Quality (effective September 1, 2002).

The committee also is adopting, in a concurrent action, the review of Chapter 601 as required by Texas Government Code, §2001.039. The adopted notice of review can be found in the Review of Agency Rules section in this issue of the Texas Register .

SECTION BY SECTION DISCUSSION

The amendment to §601.2, Applicability , adds the Water Well Drillers and Water Well Pump Installers Program of the Texas Department of Licensing and Regulation to reflect the current membership of the committee as revised by the 76th Legislature, 1999, House Bill (HB) 1848, which amended TWC, §26.403(c). The name of the Texas Natural Resource Conservation Commission has been revised to the Texas Commission on Environmental Quality (effective September 1, 2002) to reflect the agency name change as required by HB 2912, §18.01, 77th Legislature, 2001.

The amendment to §601.3, Definitions , changes to the term "commission," reflect an agency name change from the Texas Natural Resource Conservation Commission to the Texas Commission on Environmental Quality as required by HB 2912, 77th Legislature.

The amendment to §601.5, Joint Groundwater Monitoring and Contamination Report , reflects the agency name change of the Texas Natural Resource Conservation Commission to the Texas Commission on Environmental Quality.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The committee reviewed the adopted rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in §2001.0225(g)(3). The rulemaking only implements legislative changes to TWC, §26.403(c) regarding committee membership and updates the rules to reflect the new agency name for the Texas Natural Resource Conservation Commission (TNRCC) to the Texas Commission on Environmental Quality (effective September 1, 2002). These amendments are not expected to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Furthermore, even if the rules did meet the definition of a "major environmental rule," the adopted rules are not subject to §2001.0225 because they do not accomplish any of the four results specified in §2001.0225(a).

First, the rules do not exceed a standard set by federal law because there is no equivalent federal statute for the reporting of groundwater contamination.

Second, the rules do not exceed an express requirement of state law. The committee is specifically authorized under TWC, §26.406(d) to adopt rules defining the conditions that constitute groundwater contamination for purposes of inclusion of cases in the public files and the joint report. Also, the changes reflect the requirements of state law which in HB 1848, 76th Legislature, 1999, added a member to the committee under revised TWC, §26.403(c) and under HB 2912, 77th Legislature, 2001, changed the name of TNRCC, a member on the committee.

Third, this rulemaking does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program because this report is not part of a delegation agreement or contract between the state and a federal program. Finally, this rulemaking does not adopt solely under the general powers of the committee instead of under a specific state law. The amendments are specifically adopted under TWC, §26.406(d).

TAKINGS IMPACT ASSESSMENT

The committee evaluated this adopted rulemaking action and performed a final assessment on whether the adopted rules are subject to Texas Government Code, §2007.043. The purpose of this rulemaking is to revise the membership of the committee to reflect legislative additions to membership and an agency name change.

The adopted rules provide for a listing of the duties and responsibilities assigned to the committee under TWC, §26.406, concerning the maintenance by certain state agencies of public files containing documented cases of groundwater contamination and the publication by the committee, in conjunction with the TNRCC, of annual groundwater monitoring and contamination reports and to establish general policies of the committee to guide such implementation.

Because the adopted rulemaking governs the actions of the member agencies and organizations on the committee, it does not affect private real property and does not, in whole or in part, or temporarily or permanently, restrict or limit a property owner's right to the property that would otherwise exist in the absence of the rules.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The adopted committee rulemaking does not authorize actions contained in the Coastal Coordination Act Implementation Rules in 31 TAC §505.11(a)(6) or (b)(2) or the Natural Resources Code (NRC), Chapter 33. The NRC, §33.205(a) states that "...{a}n agency or subdivision that takes an agency or subdivision action described by §33.2051 or §33.2053 that may adversely affect a coastal natural resource area shall comply with the goals and policies of the coastal management program."

Section 505.11(a)(6) or (b)(2), which correspond directly with NRC, §33.2051 and §33.2053, describe agency rulemaking actions that require certain agencies to comply with NRC, §33.205(a) and (b) when adopting or amending a rule governing certain activities. However, these provisions do not list the committee as an agency subject to the provisions of NRC, §33.205(a) and (b) or that must demonstrate compliance with the goals and policies of the Coastal Management Plan (CMP). The committee is described as "an interagency committee" in TWC, §26.403, with the power to adopt rules under TWC, §26.406(d). Texas Water Code, §26.403(b) designates the TNRCC as the lead agency for the committee, and provides that the TNRCC shall administer the activities of the committee; however, the committee is given separate statutory power to adopt rules under §26.406(d). Therefore, cited provisions of the TAC and the NRC do not apply to the committee's adoption of rules.

Nonetheless, should the rulemaking actions of the committee be interpreted for any reason as the TNRCC's adoption of rules, none of the adopted rules falls under the actions described in §505.11(a)(6) and (b)(2) or NRC, §33.2051 or §33.2053. Therefore, the requirements of the CMP do not apply to this rulemaking.

PUBLIC COMMENTS

The public comment period closed on April 15, 2002, and no comments were received. A public hearing was not held.

STATUTORY AUTHORITY

The amendments are adopted under TWC, §26.406(c) and (d), which provides the committee with the authority to promulgate rules defining the conditions that constitute groundwater contamination for the purposes of inclusion of cases in the public files and the joint report under TWC, §26.406; TWC, 26.403(c), which names the committee's membership; and HB 2912, 18.01, 77th Legislature, 2001, which changes the name of the Texas Natural Resource Conservation Commission.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 8, 2002.

TRD-200204251

Stephanie Bergeron

Director, Environmental Law Division

Texas Groundwater Protection Committee

Effective date: July 28, 2002

Proposal publication date: March 15, 2002

For further information, please call: (512) 239-6087