Part 1.
GENERAL LAND OFFICE
Chapter 15.
COASTAL AREA PLANNING
Subchapter B. COASTAL EROSION PLANNING AND RESPONSE
The Texas General Land Office (Land Office) proposes new §15.41,
relating to Evaluation Process for Coastal Erosion Studies and Projects, §15.42,
relating to Funding Projects from the Coastal Erosion Response Account, §15.43,
relating to Coastal Boundary Surveys and Landowner Consent, and §15.44,
relating to Beneficial Use of Dredged Material. New §§15.41 - 15.43
replace repealed sections dealing with the same subject matter. New §15.44,
relating to Beneficial Use of Dredged Material adds new text to conform to
legislative changes.
The Land Office simultaneously proposes the repeal of §15.21, relating
to Evaluation Process for Coastal Erosion Studies and Projects, §15.22,
relating to Funding Projects from the Coastal Erosion Response Account, and §15.23,
relating to Coastal Boundary Surveys. The repealed sections will be replaced
by the new sections dealing with the same subject matter.
The new sections are proposed pursuant to the Joe Faggard Coastal Erosion
Planning and Response Act, 76th Legislature, Regular Session Senate Bill 1690
(CEPRA), as amended by House Bill 2793 and House Bill 2794, 77th Legislature,
Regular Session, Texas Natural Resources Code, Chapter 33, Subchapter H. The
CEPRA requires the Land Office to implement a program of coastal erosion avoidance,
remediation, and planning. House Bill 2793 changed the cost-share requirement
for qualified project partners from 25% to 15%. House Bill 2794 requires the
Land Office to adopt rules providing for the placement of material dredged
in constructing and maintaining navigation inlets and channels of the state
on eroding beaches or for restoration of eroding wetlands wherever practicable.
The proposed rules outline the process by which the Land Office will evaluate
and assist in the funding of coastal erosion studies and projects in cooperation
with qualified project partners. The CEPRA, §33.601(11), defines "qualified
project partner" as "a local government, state or federal agency, institution
of higher education, homeowners' association, or other public or private entity
that enters into an agreement with the land office to finance, study, design,
install, or maintain an erosion response project." The Land Office may expend
funds from the coastal erosion response account, which was established by
the CEPRA, to support a study or project undertaken independently by the Land
Office, or in conjunction with a qualified project partner. The CEPRA, as
amended by House Bill 2793, requires qualified project partners to pay at
least 15% of shared project costs that are identified in a project cooperation
agreement.
Proposed new §15.41 outlines the application process for entities
that would like to become qualified project partners with the Land Office
including an initial evaluation of project goal summaries followed by a further
evaluation of preferred alternatives. Section 15.41(1) specifies the initial
evaluation process the Land Office will use to evaluate project goal summaries
submitted by potential project partners. These summaries must be submitted
no later than December 1 of the first year of the state fiscal biennium in
which funding is sought (except to address an emergency situation) and must
contain the information identified in §15.41(1)(A). The Land Office will
evaluate and rank project goal summaries based on the criteria in §15.41(1)(C)
and (D), with priority given to the considerations in §15.41(1)(D). Based
on the initial evaluation, the Land Office will designate proposed projects
as either priority projects or alternate projects. The Land Office will invite
the potential project partner for a project designated as a priority project
to become a qualified project partner and work cooperatively to evaluate alternatives
for addressing the erosion problem(s) identified in the project goal summaries.
Proposed new §15.41(2) describes the alternatives evaluation process.
The Land Office and a potential project partner for a project designated as
a priority project enter into a project cooperation agreement that will specify
how the alternatives-evaluation process will be conducted cooperatively. By
entering into a project cooperation agreement, the potential project partner
becomes a qualified project partner. The Land Office and qualified project
partner will then cooperatively evaluate alternatives. The alternatives evaluation
process will include an evaluation of feasibility and cost effectiveness of
preferred alternatives, as well as whether a qualified project partner has
already made or received a binding commitment to fund all or a portion of
the proposed project.
Proposed new §15.42 concerns the details of project funding. If the
Land Office decides to authorize project funding from the coastal erosion
response account, the Land Office and qualified project partner will amend
the project cooperation agreement to define explicitly the terms under which
the Land Office will assist in funding the project. Standards for the qualified
project partner's statutory requirement to pay at least 15% of shared project
costs are described in §15.42(b).
Proposed new §15.43 addresses the coastal boundary survey requirement
contained in Texas Natural Resources Code, §33.136. If a coastal boundary
survey has previously been conducted in the area where an erosion response
project may be funded from the coastal erosion response account, §15.43(a)(1)
allows the Land Office to determine that current conditions are accurately
reflected in the existing survey. Based upon that determination, the Land
Office has the discretion to determine that a new survey is not required before
project construction. Section 15.43(a)(2) requires surveys to locate the boundary
based on the date the original land grant was made. The boundary is determined
in a different manner depending on whether the upland property was originally
granted under the civil or common law. In addition, proposed new §15.43
addresses the requirement of consent for projects located on permanent school
fund land and on private property in accordance with Texas Natural Resources
Code, §33.609.
Proposed new §15.44 provides for evaluation by the Land Office of
the practicality and suitability of a proposed beneficial use of dredged material,
considering sediment composition, relative cost of dredged material, and adverse
environmental impacts. The rules reference guidance documents from the U.S.
Army Corps of Engineers (Corps) which the Land Office may consider in determining
suitability and practicality of using dredged material. In addition, comments
and recommendations by various state and federal natural resource agencies
may be considered in evaluating potential adverse environmental impacts of
beneficial use projects.
Applicable federal law allows the state to contract with the Corps for
placement of material dredged in the construction and maintenance of navigation
inlets and channels of the state with federal funds on designated beaches
and eroding wetlands. Under a memorandum of agreement, dated July 27, 2001,
between the Land Office and the Corps covering 33 federally maintained navigational
channels, the state may choose to participate in Corps dredging projects and
is obligated to pay the difference between the estimated cost of traditional
disposal of material dredged from a federally maintained channel and the actual
cost of dredging and placement of that material onto a designated beach or
coastal area. Costs of dredging and placement include transportation, material,
fuel, engineering, design, and construction management. This cost differential
can result in a substantial savings to the state and qualified project partners
as compared to upland sources for material for beach nourishment or wetland
restoration, depending on the proximity of the source of dredged material
to the placement area. For example, upland sources of beach-quality sand including
transportation costs can be as much as $10.00 per cubic yard. Projects undertaken
with the Corps providing for beach placement of dredged material have resulted
in costs to the state of approximately $1.00 to $5.00 per cubic yard, depending
on the scope of the project and the pumping distance of the dredged material.
Bill Peacock, Deputy Commissioner for the Coastal Resources Program Area,
has determined that for the first five-year period that the proposed rulemaking
is in effect there will be no fiscal implications for state government. There
will be fiscal implications for the local governments as a result of reducing
the percentage for the qualified project partner's cost-sharing requirement.
It is estimated that local governments that elect to participate in CEPRA
projects will experience a 40% reduction in costs for a project of the same
scope and size for each year of the first five-year period that the proposed
new rules are in effect. For example, for a project with a total cost of $1,000,000.00,
the project partner's cost-sharing requirement would be reduced from $250,000.00
to $150,000.00 resulting in a cost savings to the local government of $100,000.00
or 40%. In an area where erosion response projects are constructed, local
governments may benefit from increased tax revenues from enhanced property
values.
Mr. Peacock also has determined that for each year of the first five-year
period the proposed rulemaking is in effect, the public benefit will be that
public beaches, public and private coastal property, and coastal natural resources
will be preserved, enhanced, or restored, or that losses sustained by these
public and private resources will be reduced. In addition, the new section
pertaining to guidelines for beneficial use of dredged material will enable
the state and qualified project partners to obtain material to nourish beaches
or restore wetlands at relatively low cost, while at the same time preserving
the quality and character of the beaches or wetlands. Mr. Peacock has determined
that there will be no additional cost of compliance for small or large businesses
or individuals.
The Land Office has determined that the proposed rulemaking will have no
local employment impact that requires an impact statement pursuant to the
Government Code, §2001.022.
The proposed rulemaking is not subject to the Texas Coastal Management
Program (CMP), 31 TAC §505.11(a)(1), relating to the Actions and Rules
Subject to the Coastal Management Program. Individual erosion response projects
undertaken in compliance with these rules may be subject to the CMP, and consistency
with the CMP will be individually determined at the appropriate stage of project
planning.
The Land Office has prepared a takings impact assessment for the proposed
rulemaking pursuant to Texas Government Code, §2007.043(b), and §2.18
of the Attorney General's Private Real Property Rights Preservation Act Guidelines.
The following is a summary of the analysis. The stated purpose of this rulemaking
action is to outline the process by which the Land Office evaluates and assists
in the funding of coastal erosion studies and projects in cooperation with
qualified project partners and provide for evaluation by the Land Office of
the suitability of dredged material, considering sediment composition, relative
cost of material, and adverse environmental impacts. The proposed action achieves
the stated purpose in accordance with the CEPRA. The proposed rulemaking does
not place any additional burdens on private real property. The Land Office
has determined that the proposed rulemaking will not result in a taking of
private property.
To receive a copy of the takings impact assessment or comment on the proposed
rulemaking, please send a written request or comment to Melinda Tracy, Texas
Register Liaison, Texas General Land Office, P.O. Box 12873, Austin, Texas
78711-2873, facsimile number (512) 463-6311 or e-mail to melinda.tracy@glo.state.tx.us.
Comments must be received no later than 30 days from the date of publication
of this proposal.
31 TAC §§15.21 - 15.23
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the General Land Office or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §§15.21 - 15.23 is proposed
under the authority of Texas Natural Resources Code, §33.602(c), which
authorizes the commissioner to adopt rules as necessary to implement a program
of coastal erosion avoidance, remediation, and planning.
Texas Natural Resources Code §33.602(c) is affected by these repeals.
§15.21.Evaluation Process For Coastal Erosion Studies And Projects.
§15.22.Funding Projects From the Coastal Erosion Response Account.
§15.23.Coastal Boundary Surveys.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 21, 2003.
TRD-200301881
Larry L. Laine
Chief Clerk, Deputy Commissioner
General Land Office
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 305-9129
31 TAC §§15.41 - 15.44
The new rules are proposed under the Texas Natural Resources
Code, §33.602(c) which provides the commissioner of the General Land
Office with the authority to adopt rules to implement Subchapter H, Chapter
33, Texas Natural Resources Code, concerning coastal erosion and the Texas
Natural Resources Code, §33.602(d) which provides the commissioner of
the General Land Office with the authority to adopt rules concerning the beneficial
use of dredged material.
Texas Natural Resources Code, §§33.601 - 33.605 are affected
by the proposed new rules.
§15.41.Evaluation Process For Coastal Erosion Studies And Projects.
The General Land Office (Land Office) will evaluate potential projects
for funding from the coastal erosion response account based on a two-stage
evaluation process as described in this section, including an initial evaluation
of project goal summaries followed by a further evaluation of preferred alternatives.
(1)
Initial evaluation of project goal summaries submitted
to the Land Office by potential project partners.
(A)
A potential project partner seeking funds from the coastal
erosion response account must submit a project goal summary to the Land Office
no later than December 1 of the first year of the state fiscal biennium in
which funding is sought; provided that the Land Office in its discretion may
accept a project summary that will address an emergency situation after December
1. The project goal summary must include the following:
(i)
the name of the entity that will be the potential project
partner and the name, mailing address, email address, facsimile number, and
telephone number of the person who will represent the potential project partner
and be the primary point of contact with the Land Office;
(ii)
the location and geographic scope of the erosion problem;
(iii)
a description of the erosion problem and the severity
of erosion in the area;
(iv)
the economic impacts of erosion in the area;
(v)
a description of how public infrastructure and resources
or private property have been impacted or threatened by erosion in the area;
(vi)
the natural resource impacts of erosion in the area;
(vii)
the estimated cost to complete the erosion response project;
(viii)
whether the project will incorporate the beneficial
use of dredged materials;
(ix)
potential cosponsors and sources of funding with an estimated
percentage of the project to funded with non-state funds;
(x)
whether the potential partner can make a binding funding
commitment of at least 15% of the total estimated project cost;
(xi)
a description of an emergency erosion situation the project
is intended to address, if any; and
(xii)
the desired outcome or goals of the project for which
funding is sought from the coastal erosion response account.
(B)
The Land Office will accept project goal summaries by:
(i)
mail sent to the General Land Office, Attn: Director, Coastal
Resources Program Area, Coastal Stewardship Division, P.O. Box 12873, Austin,
TX 78711-2873;
(ii)
fax sent to (512) 475-0680; or
(iii)
email sent to coastalprojects@glo.state.tx.us.
(C)
The Land Office will evaluate and rank project goal summaries
received based on the following criteria:
(i)
the feasibility and cost-effectiveness of the proposed
project;
(ii)
the economic impacts of erosion in the area of the proposed
project;
(iii)
the effect of the proposed project on public infrastructure
or resources threatened by erosion;
(iv)
the effect of the proposed project on natural resources
threatened by erosion;
(v)
the effect of the proposed project on private property
threatened by erosion;
(vi)
if the project is located within the jurisdiction of a
local government that administers a beach/dune program, whether the local
government is adequately administering its duties under the Open Beaches Act
(Texas Natural Resources Code, Chapter 61) and the Dune Protection Act (Texas
Natural Resources Code, Chapter 63);
(vii)
whether the project will provide for beneficial use of
beach-quality sand dredged in constructing and maintaining navigation inlets
and channels of the state; and
(viii)
whether funding can be leveraged with sources other
than the coastal erosion response account; and
(ix)
whether the potential project partner has already made
or received a binding commitment to fund all or a portion of a given project.
(D)
After ranking proposed projects according to the criteria
detailed in subparagraph (C) of this paragraph, the Land Office will further
evaluate project goal summaries received based on the following priority criteria:
(i)
whether funding the proposed project will contribute to
balance in the geographic distribution of benefits for coastal erosion response
projects in Texas that are proposed or have received funding from the coastal
erosion response account;
(ii)
whether federal and local financial participation in the
project is maximized;
(iii)
whether the project achieves efficiencies and economies
of scale;
(iv)
the relative severity of erosion in each area;
(v)
the needs in other critical coastal erosion areas;
(vi)
whether the proposed project will address an emergency
erosion situation in the area; and
(vii)
the cost of the proposed project in relation to the amount
of money available in the coastal erosion response account.
(E)
The Land Office will conduct the initial evaluation in
consultation and coordination with the potential project partner, as deemed
necessary by the Land Office. Based on the initial evaluation, the Land Office
will designate proposed projects as either priority projects or alternate
projects.
(i)
If, as a result of the initial evaluation, the Land Office
designates a potential project as an alternate project, the potential project
partner will be notified in writing. The Land Office will retain the project
goal summary and may reevaluate it if future conditions warrant funding the
project in the current state fiscal biennium. The project goal summary must
be resubmitted by the potential project partner for consideration for funding
in a subsequent state fiscal biennium.
(ii)
If the Land Office's initial evaluation results in a designation
of a proposed project as a priority project, the Land Office will invite the
potential project partner to continue to work cooperatively with the Land
Office by becoming a qualified project partner.
(2)
Evaluation of preferred alternatives with qualified project
partners for priority projects.
(A)
The Land Office and potential project partner for a priority
project must enter into a project cooperation agreement to continue the evaluation
process. Upon entering into a project cooperation agreement, the potential
project partner will become a qualified project partner. The Land Office and
qualified project partner will cooperatively evaluate alternatives for addressing
the erosion problem(s) identified in the project goal summary of a priority
project.
(B)
The project cooperation agreement with the qualified project
partner will explicitly define the activities to be undertaken by the Land
Office and the qualified project partner in the evaluation of alternatives.
Funds expended by a qualified project partner in conformance with the project
cooperation agreement can be used to offset the qualified project partner's
cost-sharing requirement. The Land Office may, at its sole discretion, fund
studies or activities that are part of the alternatives-evaluation process.
(C)
During the alternatives-evaluation process, the Land Office
will evaluate projects based on the following criteria:
(i)
the feasibility and cost-effectiveness of preferred alternative
projects in meeting the goals of the project goal summary; and
(ii)
whether the qualified project partner has already made
or received a binding commitment to fund all or a portion of a given project.
(D)
The Land Office will determine whether a qualified project
partner should receive funds from the coastal erosion response account based
on the final prioritization of preferred alternatives according to the considerations
detailed in subparagraph (C) of this paragraph.
§15.42.Funding Projects From the Coastal Erosion Response Account.
(a)
If the Land Office determines that a project should receive
funds from the coastal erosion response account, the Land Office and the qualified
project partner will amend the project cooperation agreement that was entered
into earlier in the evaluation process. The Land Office shall explicitly describe
in the amended project cooperation agreement the terms and conditions under
which the Land Office will fund the project.
(b)
Qualified project partners are required to pay at least
15% of the shared project costs in accordance with Texas Natural Resources
Code, §33.603(c).
(1)
The project cooperation agreement shall specify the terms
of the qualified project partner's commitment to pay at least 15% of shared
project costs.
(2)
No costs incurred by a potential project partner before
becoming a qualified project partner by entering into a project cooperation
agreement with the Land Office may be used to offset the 15% cost-sharing
requirement of the CEPRA.
(3)
In-kind goods or services provided by the qualified project
partner after entering into a project cooperation agreement with the Land
Office may offset the 15% cost-sharing requirement, if the qualified project
partner provides the Land Office with a reasonable basis for estimating the
monetary value of those goods or services. The decision on whether to allow
any in-kind good or service to offset the 15% cost-sharing requirement is
in the sole discretion of the Land Office.
(4)
Local governments that receive financial assistance from
the state to clean and maintain public beaches fronting the Gulf of Mexico
under Chapter 25 of this title, relating to Beach Cleaning and Maintenance
Assistance Program, will not be allowed to use funds received under that program
to meet the 15% cost-sharing requirement.
§15.43.Coastal Boundary Surveys and Landowner Consent.
(a)
No person may undertake an action relating to erosion response
on or immediately landward of a public beach or submerged land until the person
has conducted and filed a coastal boundary survey with the Land Office in
accordance with Texas Natural Resources Code, §33.136.
(1)
If a coastal boundary survey for the area of an erosion
response project that may be funded from the coastal erosion response account
has previously been approved and filed with the Records and Archives Division
of the Land Office, upon the request of the qualified project partner the
Land Office shall determine whether that survey adequately reflects current
conditions. If the survey adequately reflects current conditions, the Land
Office may determine that a new coastal boundary survey is not required before
the project is constructed. The decision of whether a new survey is required
before construction of an erosion response project is in the sole discretion
of the Land Office.
(2)
The boundary depicted on any coastal boundary survey that
is required before funding a project from the coastal erosion response account
shall be delineated according to the law under which the upland property was
originally granted by the sovereign.
(b)
A coastal erosion response project on permanent school
fund land may not be undertaken without obtaining the written consent of the
school land board in accordance with Texas Natural Resources Code, §33.609.
(c)
A coastal erosion response project on private property
other than that encumbered by the common law rights of the public affirmed
by Texas Natural Resources Code, Chapter 61, may not be undertaken without
obtaining the consent of the property owner in accordance with Texas Natural
Resources Code, §33.609.
§15.44.Beneficial Use of Dredged Material.
(a)
Wherever practicable, material dredged in constructing
and maintaining navigation inlets and channels of the state shall be placed
on eroding beaches or used to restore eroding wetlands. The Land Office shall
evaluate the practicality and suitability of proposed beneficial use of dredged
material in accordance with this section and shall consider sediment composition,
relative cost of the material, and adverse environmental impacts.
(b)
A portion of the shoreline which is experiencing an historical
erosion rate of greater than two feet per year based on the published data
of the University of Texas at Austin Bureau of Economic Geology, is considered
an eroding area for the purposes of this subchapter.
(c)
For the purposes of this subchapter, beneficial use of
dredged material shall not be deemed practicable if the cost to the State
and local project partner for placement of the material dredged in constructing
and maintaining navigation inlets and channels of the State exceeds the cost
of obtaining similar material from an upland source, including transportation
costs. In the case of placement for wetland restoration, the cost of soil
preparation and treatment may also be considered.
(d)
In determining the suitability and practicality of dredged
material for beach placement the Land Office may refer to the guidance found
in Chapter 9 of U.S. Army Corps of Engineers, Publication No. EM 1110-2-5026
"Engineering & Design, Beneficial Uses of Dredged Material," USACE, June
1987 and U.S. Army Corps of Engineers, Publication No. EM 1110-2-3301, "Design
of Beach Fills," USACE, May 1995. Only beach-quality sand shall be considered
for beach placement.
(e)
In this section "beach-quality sand" means sediment material
that:
(1)
has effective grain size, mineralogy, and quality that
approximates the existing beach material in the placement area;
(2)
is low in fine grain, silty, or clayey sediments; and
(3)
contains no hazardous substances listed in the Code of
Federal Regulations, Volume 40, Part 300, in concentrations which are harmful
to human health or the environment as determined by applicable, relevant,
and appropriate requirements established by the local, state, and federal
governments.
(f)
In determining the suitability and practicality of placement
of dredged material for wetland restoration, the Land Office may refer to
the guidance found in Chapter 5 of U.S. Army Corps of Engineers, Publication
No. EM 1110-2-5026 "Engineering & Design, Beneficial Uses of Dredged Material,"
USACE, June 1987.
(g)
In determining whether a proposed beneficial use of dredged
material has unacceptable adverse environmental impacts, the Land Office may
consider any recommendations or comments by the U.S. Environmental Protection
Agency, the U.S. Fish and Wildlife Service, the National Marine Fisheries
Service, the Natural Resources Conservation Service, the U.S. Army Corps of
Engineers, the Texas Natural Resource Conservation Commission, the Texas Parks
and Wildlife Department, and the implementing agency for a national estuary
program developed under Section 320 of the Federal Water Pollution Control
Act (33 U.S.C. Section 1330) and approved by the governor of Texas and the
administrator of the United States Environmental Protection Agency.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 21, 2003.
TRD-200301882
Larry L. Laine
Chief Clerk, Deputy Commissioner
General Land Office
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 305-9129
Chapter 359.
WATER BANKING
Part 10.
TEXAS WATER DEVELOPMENT BOARD