TITLE 31.NATURAL RESOURCES AND CONSERVATION

Chapter 15. COASTAL AREA PLANNING

Subchapter A. MANAGEMENT OF THE BEACH/DUNE SYSTEM

The General Land Office (GLO) proposes amendments to §15.36 relating to Certification Status of City of Galveston Dune Protection and Beach Access Plan (Plan). The GLO proposes an amendment to §15.36 which documents the status of the certification of the Dune Protection and Beach Access Plan for the City of Galveston (City) adopted on August 12, 1993 and amended on February 9, 1995, June 19, 1997, February 14, 2002, March 13, 2003, January 29, 2004, and February 26, 2004. The GLO proposes to amend §15.36(a) to change the status of the Plan as amended from "conditionally certified" to "certified as consistent with state law." The amendment also deletes §15.36(c) and (d) as those subsections pertain to amendments to the plan that are incorporated in subsection (a) as amended.

On January 29, 2004, the City passed Ordinance No. 04-020, which amended the City's Plan to adjust the boundaries of the Seawall Beach Urban Park to remove all properties north of the right-of-way of Seawall Boulevard and expand the eastern and western boundaries of the Seawall Beach Urban Park to 1st Street and 103rd Street, respectively. In addition, on January 29, 2004, the City passed Ordinance No. 04-021, which amended the City's Plan to establish beach user fees to be collected at the Seawall Beach Urban Park. The ordinance establishes a maximum fee of $8.00 per vehicle per day with a $25.00 annual pass available. Specifically, the ordinance provides for a fee structure for the south side of the Seawall Beach Urban Park not to exceed $8.00 per vehicle daily and a fee structure for the north side of the Seawall Beach Urban Park as follows: the first one-half hour free, then $1.00 per hour in specified zones, and $2.00 per hour in beach access zones, not to exceed $8.00 per vehicle per day. The City has committed to implementing this Plan in a manner that provides free parking at a minimum of ten percent (10%) of the parking spaces within the Seawall Beach Urban Park and to ensure that all areas of the public beach adjacent to the Seawall Beach Urban Park are within a reasonable distance of free parking spaces. The fees were established because the City needs additional funds to pay for the cost of beach-related services and facilities provided by the City and to help fund beach nourishment projects.

However, a petition was submitted to the City Secretary on December 19, 2003, to amend the City of Galveston's charter to prohibit the City from charging a fee for parking a motor vehicle on Seawall Boulevard without approval of a majority of qualified voters voting in an election to authorize such a fee. The City Secretary did not certify the petition and a petition for writ of mandamus was filed with the Fourteenth Court of Appeals of Texas. On March 5, 2004, the court ruled that the City Secretary had a ministerial duty to submit the petition to the governing body of the City of Galveston, so that the governing body of the City of Galveston may submit the proposed charter amendment to the voters for their approval at an election. It is anticipated that such an election will be held on May 15, 2004. In the event that the charter amendment is approved by the voters, it may affect the ability of the City to collect the beach user fees authorized for parking at the Seawall Beach Urban Park by Ordinance No. 04-021 passed by the City on January 29, 2004.

On February 26, 2004, the City passed Ordinance No. 04-026, which amended the City's Plan to provide for establishment and increased beach user fees at Stewart Beach, R.A. Apffel Park, Dellanera Park, and East and West areas of Galveston Island as described on Appendix A: Beach Access and Parking Plan, attached to Ordinance No. 04-026. The beach user fees at Stewart Beach and R.A Apffel Park are increased from $7.00 to $8.00, with a $25.00 season pass available. The beach user fee at Dellanera Park is increased from $5.00 to $8.00 for each vehicle. However, existing beach access parking shall remain until modifications regarding a pedestrian walkway at Access Point 4 and improvements to Access Point 5 are completed, at which time on-beach parking at Dellanera Park will be removed. The plan establishes a maximum daily beach user fee of $8.00 with a minimum $12.00 and maximum $25.00 annual pass available for East and West areas of Galveston Island as identified on Appendix A: Beach Access and Parking Plan, attached to Ordinance No. 04-026, where vehicular access and parking are provided. The fees were established because the City needs additional funds to pay for the cost of beach-related services and facilities provided by the City.

Although not included in Ordinance No. 04-026, new definitions were provided by the City as an attachment in the City's staff report in support of the Plan for terms used in the beach access plan and the meanings ascribed to those terms form the basis of certification of the Plan by the GLO as follows: "Off-Beach Parking/Pedestrian Access" where the beach is closed to all vehicles for parking and driving throughout the year; vehicular parking is available on adjacent public streets and parking lots; the beach is accessible to pedestrians by way of public footpaths, dune walkovers or from the public beach easement. "On-Beach Parking/Pedestrian Access ("T-heads")" where the beach is open to all vehicles for parking throughout the year; the beach is accessible to pedestrians from the public beach easement. "On-Beach Driving/Vehicular Access" where the beach is open to all vehicles for parking and driving throughout the year. "Pedestrian Only Access" where the beach is accessible to pedestrians, by way of footpaths, dune walkovers or from the public beach easement and no public parking is available within close proximity. "Seasonal Access" where vehicular access/driving is prohibited on the beach from 6:00 P.M. Friday to 6:00 P.M. Sunday during the month of March, from Memorial Day through Labor Day, and all legal holidays. "Restricted Access" where the beach is open to vehicles throughout the year only as a special use area for persons with disabilities, saltwater fishermen, and launching of non-motorized personal watercraft and the beach is accessible to pedestrians, from the public beach easement and/or adjacent parking areas. "Substantial Physical Improvements" is determined by the Director of the Department of Planning and Community development upon the completion of all of the following criteria for development: 1) filing of a final plat; 2) installation of public and private infrastructure; 3) installation of associated beach access point parking, signage, and walkover; and 4) issuance of a building permit for a private residence or public building, excluding a sales office or accessory structure. The GLO will monitor implementation of the definitions as represented by the City. Failure to adhere to the definitions may result in GLO action to withdraw certification of the Plan pursuant to 31 TAC §15.10(f).

Appendix A: Beach Access and Parking Plan, attached to Ordinance No. 04-026, as part of the Plan describes and identifies the availability of vehicular access and parking, both On-beach and Off-Beach for various beach access points and beach parks. On-beach parking with a user fee is provided at Apffel Park and Stewart Beach. On-beach parking is available at Beach Access Point (AP) 6 (Pocket Park #1), AP 7 (Sunny Beach Subdivision), AP 10 (10-Mile Road/Hershey Beach Subdivision, Off-beach also), AP 12 (Bermuda Beach Subdivision, Off-beach also), AP 14 (11-Mile Road), AP 16 (13-Mile Road), AP 17 (15-Mile Road), AP 18 (16-Mile Road), AP 25 (Gateway Boulevard - Sea Isle Subdivision), AP 26 (San Jacinto Street - Sea Isle Subdivision), AP 30 (Gulf Boulevard, Isla Del Sol Subdivision), AP 31 (Terramar Drive, Terramar Beach Subdivision), AP 33 (2nd Street, Bay Harbor Subdivision), AP 36 (Salt Cedar Avenue, unrestricted access to the west to AP 35), and AP 41 (Point San Luis 4 [toll bridge area] unrestricted, vehicular access, minimum width of 3,230 linear feet). Seasonal access is provided at AP 33 (one-way driving west to east), AP 34 (Miramar Subdivision, one-way driving, west to east, Off-beach also), AP 35 (Half Moon Beach Subdivision, seasonal access to east, unrestricted access to the west to AP 36), and AP 41 (Pointe San Luis 4 [toll bridge area] seasonal access provided, minimum width of 1,200 feet).

This plan is the result of over two years of work by Galveston residents, local officials and staff, beach users, GLO staff and many others in public meetings and workshops. The Plan appears to strike a balance between the different ideas of the people who have been involved in the process regarding how to manage public beach access on Galveston Island. After two years of reviewing the current access plan and the various suggested revisions, GLO staff has made a determination that the plan as amended by Ordinance No. 04-026 complies with the Texas Open Beaches Act and the GLO's beach/dune rules. This determination is based explicitly on the representations and commitments of the City in the Implementation Elements included as an Attachment in the City's staff report in support of the Plan. The Implementation Elements include High-Priority/Short-Term Actions (0-2 years), Mid-Term Actions (2-5 years), and Long-Term Actions (5-10 years). The GLO will monitor implementation of the plan as represented by the City. Failure to adhere to the Implementation Elements may result in GLO action to withdraw certification of the Plan pursuant to 31 TAC §15.10(f).

The GLO has determined the increased beach user fees are reasonable and necessary for the City to continue to fund and provide adequate beach-related services and facilities to the public. The GLO is proposing, therefore, to certify as consistent with state law the amendments to the City's Plan that adjust the boundaries of the Seawall Beach Urban Park, establish or increase beach user fees to be collected at the Seawall Beach Urban Park, Stewart Beach, R.A. Apffel Park, Dellanera Park, and East and West areas of Galveston Island, and otherwise modify the City's Beach Access Plan. The GLO is also proposing to amend the certification status of the City of Galveston Plan as a whole from conditionally certified to a status of certified as consistent with state law.

Bill Peacock, Deputy Commissioner for the GLO's Coastal Resources Division, has determined that for each year of the first five years the amended section as proposed is in effect there will be no fiscal implications for the state government as a result of enforcing or administering the amended or new sections. There will be a fiscal impact on the City as a result of enforcing or administering the amended section. The City will experience an increase in net revenue estimated at between $600,000 and $800,000 for each year of the first five years the amended section as proposed is in effect as a result of the new beach user fees to be collected at the Seawall Beach Urban Park. In addition, the City will experience an increase in revenue estimated at between $172,000 and 187,000 for each year of the first five years the amended section as proposed is in effect as a result of the increased beach user fees to be collected at other beach parks and access points.

Bill Peacock, Deputy Commissioner for the GLO's Coastal Resources Division, has determined that the proposed rule changes will have an effect on the costs of compliance for small businesses or persons required to comply with the regulations. The beach user fees to be collected at the Seawall Beach Urban Park may increase the cost per employee of small businesses that do not have private parking by an amount of $25 per year per employee based on the cost of a $25 annual parking pass. In contrast, the largest businesses affected by the amended rule may experience no increased costs of compliance due to the availability of private parking at such large businesses. The City mitigated or reduced this adverse economic impact by providing, for a limited time, free annual passes to any interested person. There are no other anticipated costs of compliance for small and large businesses as a result of the amendments to the Plan approved by the City on February 26, 2004.

Individuals required to comply with the City's amended Plan establishing a beach user fee to be collected at the Seawall Beach Urban Park will experience increased costs for parking of up to $8.00 per day, depending on the location and length of time parked, with a $25.00 annual pass available. Individual beach users at Stewart Beach and R.A Apffel Park will experience an increase in parking expense of $1.00 per entry per vehicle, and a reduction from $35.00 to $25.00 for an annual pass. Individual beach users at Dellanera Park will experience an increased parking expense of $3.00 per day per vehicle. Beach users at East and West areas of Galveston Island as identified on Appendix A: Beach Access and Parking Plan, attached to Ordinance No. 04-026, will experience an increase in parking expense of $8.00 per day, with a minimum $12.00 and maximum $25.00 annual pass available.

Bill Peacock, Deputy Commissioner for the GLO's Coastal Resources Division, has determined the public will benefit from the increase in the beach user fees collected by the City at the Seawall Beach Urban Park provided in the January 29, 2004, amendments to the Plan because the increased fees are necessary for the City of Galveston to provide adequate and improved beach-related services to the public including funding for beach nourishment, additional beach patrol towers, expanded beach cleaning, enhanced and additional portable restroom facilities, additional off duty police officers in high need areas, and customer service zones with permanent restrooms, waste cans, and concessionaires. The February 26, 2004, amendments to the Plan will also benefit the public because the increased fees at other beach parks are necessary for the City of Galveston to provide adequate and improved beach-related services to the public. In addition, the February 26, 2004, amendments to the Plan provide clear delineation of access points with appropriate signage for on-beach and off-beach parking. The February 26, 2004, amendments to the Plan also improve access to the public beach easement by providing on-beach or off-beach parking within one-half mile of all areas of the public beach within the City, with the exception of the pedestrian area between Stewart Beach and Apffel Park.

The GLO has determined a local employment impact statement on these proposed rulemaking is not required, because the proposed rulemaking will not adversely affect any local economy in a material manner for the first five years they will be in effect.

The proposal to amend §15.36 concerning Certification Status of City of Galveston Dune Protection and Beach Access Plan is subject to the Coastal Management Program (CMP), 31 TAC §505.11(a)(1)(J), relating to the Actions and Rules Subject to the CMP. The Land Office has reviewed these proposed actions for consistency with the CMP's goals and policies in accordance with the regulations of the Coastal Coordination Council (Council). The proposed actions are consistent with the Land Office's beach/dune rules that the Council has determined to be consistent with the CMP. Consequently, the Land Office has determined that the proposed actions are consistent with applicable CMP goals and policies. The proposed amendments will be distributed to council members in order to provide them an opportunity to provide comment on the consistency of the proposed new rules during the comment period.

The GLO has evaluated the proposed amendments to determine whether Texas Government Code, chapter 2007, is applicable and a detailed takings impact assessment required. The GLO has determined the proposed rule as amended does not affect private real property in a manner that requires real property owners to be compensated as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Article I, Sections 17 and 19, of the Texas Constitution. Furthermore, the GLO has determined that the proposed rule changes would not affect any private real property in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the rule amendments or new rules being proposed.

The Texas General Land Office (GLO) will conduct a public hearing to receive public comment on the proposed amendments to §15.36, relating to Certification Status of the City of Galveston Dune Protection and Beach Access Plan. The hearing will be held in compliance with §2001.029 of the Texas Government Code to provide all interested persons a reasonable opportunity to submit data, views, or arguments, orally or in writing on the proposed rulemaking. The public hearing to receive public comment on the proposed amendments to §15.36 will be held at the Seabrook Community Center, 1210 Anders, Seabrook, Texas, on March 31, 2004, from 4:00 P.M. to 7:00 P.M.

Written comments may be submitted to Ms. Debbie Cantu, Texas Register Liaison, Texas General Land Office, Legal Services Division, P.O. Box 12873, Austin, TX 78711-2873; facsimile number (512) 463-6311; email address debbie.cantu@glo.state.tx.us. Comments must be received no later than 5:00 p.m., 30 (thirty) days after the proposed amendments are published. Copies of the local government dune protection and beach access plans and any amendments to those Plans are available from the local government and from the General Land Office's Archives Division, Texas General Land Office, P.O. Box 12873, Austin, TX 78711-2873, phone number (512) 463-5277.

These amendments are proposed under Texas Natural Resources Code, Chapter 61, §61.011(d), which authorizes the GLO to adopt rules related to the certification of beach access and use plans; §61.015(b), which provides that certification of local government plans shall be by adoption into the beach/dune rules; and §61.022(c), which requires the GLO to certify the consistency of vehicular plans and fees by adoption into the beach/dune rules.

Texas Natural Resources Code §§61.011, 61.015, 61.022, and 61.070 are affected by the proposed amendments.

§15.36.Certification Status of City of Galveston Dune Protection and Beach Access Plan.

(a) The City of Galveston has submitted to the General Land Office a dune protection and beach access plan which is [ ~~conditionally~~ ] certified as consistent with state law. The city's plan was adopted on August 12, 1993 and amended on February 9, 1995, June 19, 1997, February 14, 2002, [ ~~and~~ ] March 13, 2003 , January 29, 2004, and February 26, 2004 . [ The conditional certification for the City of Galveston's plan will remain in effect until the city amends its plan according to the comments provided by the General Land Office to the city on October 18, 1993, or until the General Land Office officially revokes the conditional certification. ]

(b) The General Land Office certifies as consistent with state law the following variances from §§15.4(c)(8), 15.5(b)(3), and 15.6(f)(3) (relating to Dune Protection Standards, Beachfront Construction Standards, and Concurrent Dune Protection and Beachfront Construction Standards) in the City of Galveston's plan. The plan:

(1) provides that paving or altering the ground below the lowest habitable floor is prohibited in the area between the line of vegetation and 25 feet landward of the north toe of the dune;

(2) provides that paving used under the habitable structure and for a driveway connecting the habitable structure and the street is limited to the use of unreinforced fibercrete in 4 feet by 4 feet sections, which shall be a maximum of four inches thick with sections separated by expansion joists, or pervious materials approved by the City Department of Planning and Transportation, in that area 25 feet landward of the north toe of the dune to 200 feet landward of the line of vegetation;

(3) assesses a "Fibercrete Maintenance Fee" of $200.00 to be used to pay for the cleanup of fibercrete from the public beaches, should the need arise; and

(4) allows the use of reinforced concrete in that area landward of 200 feet from the line of vegetation.

[ ~~(c)~~ The conditional certification of the special events portion of the City of Galveston's plan, adopted by the City of Galveston by ordinance on February 14, 2002, will continue until the city modifies the special events portion of its plan to be consistent with the General Land Office comments submitted to the City of Galveston on March 11, 2002 and March 27, 2002, or until the General Land Office officially revokes the conditional certification. ]

[ ~~(d)~~ The General Land Office certifies as consistent with state law the amendment to the City of Galveston's plan that was adopted by the City Council of the City of Galveston on March 13, 2003, Ordinance No. 03-015. The ordinance amended the plan to increase the beach user fees collected at R. A. Apffel and Stewart Beach Parks from $5.00 to $7.00.]

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 8, 2004.

TRD-200401771

Larry L. Laine

Chief Clerk, Deputy Land Commissioner

General Land Office

Earliest possible date of adoption: April 18, 2004

For further information, please call: (512) 305-8598