31 TAC §15.6
The General Land Office (GLO) adopts an amendment to §15.6
relating to Concurrent Dune Protection and Beachfront Construction Standards
without changes to the proposed text as published in the November 3, 2006,
issue of the
Texas Register
(31 TexReg 8962).
The amendment to §15.6(f)(4) allows a local government to permit the
construction of a storage area or areas with breakaway or louvered walls in
eroding areas if such construction is consistent with the requirements of
the National Flood Insurance Program (NFIP) and not otherwise restricted by
the local government's dune protection and beach access plan. The 300-square
foot maximum dimension for such storage areas is deleted. The amendment would
also allow a local government to permit enclosures as required by local building
or safety codes.
COMMENT SUMMARY
The Land Office received one comment from a representative of Texas Commission
on Environmental Quality stating that the consistency determination reflected
in the preamble for the proposed rule amendment in the November 3, 2006, issue
of the
Texas Register
(31 TexReg 8962) was
insufficient because it did not give the reasoned justification for the determination.
The Land Office agrees with the comment and provides the following reasoned
justification.
REASONED JUSTIFICATION - RESPONSE TO COMMENT
The amendment to permit local governments to establish construction guidelines
for storage areas is subject to the Texas Coastal Management Program (CMP)
pursuant to 31 TAC §505.11(b)(4) because it governs individual agency
actions listed in Texas Natural Resources Code §33.2053(a)(10) and 31
TAC §505.11(a)(1)(J). The proposed rule amendment must be consistent
with applicable CMP goals and policies. The applicable CMP goals and policies
related to this proposed rulemaking are found in 31 TAC §501.26, relating
to Policies for Construction in the Beach/Dune System. The Land Office finds
the proposed amendment to be consistent with the applicable goals and policies
of the CMP related to construction in the beach/dune system because it does
not authorize or permit any activity that will result in a material weakening
of dunes or damage to any dune vegetation. Enclosed storage areas will be
reviewed for compliance as a part of the dune construction permitting process.
REASONED JUSTIFICATION - FACTUAL BASIS
The NFIP was created in 1968 to provide previously unavailable flood insurance
protection to property owners in flood-prone areas. 44 Code of Federal Regulations
(CFR) §59.2(a). To qualify for the NFIP, a community must adopt flood
plain management regulations, satisfying at a minimum the criteria set forth
in 44 CFR Part 60, relating to Criteria for Land Management and Use. The criteria
in Part 60 are designed to reduce or avoid future flood, mudslide or flood-related
erosion damages. 44 CFR §59.2(b).
The NFIP regulations designate the land in the flood plain within a community
subject to a 1 percent or greater chance of flooding in any given year an
A Zone on a community's Flood Hazard Boundary Map (FHBM). 44 CFR §59.1.
An A Zone can then be subdivided on the FHBM into a number of subzones, including
a V Zone in a coastal area. V Zones are described as those areas along the
coast where water depth and other conditions would support at least a 3-foot
wave height. For new or substantially improved buildings in V Zones, a local
government's development regulations, such as zoning rules or building codes,
must require, among other things, the ground level must be free of obstructions,
or any enclosure must be constructed with non-load bearing breakaway walls,
that meet NFIP criteria. Any such enclosures may be used only for the parking
of vehicles, building access, or storage. 44 CFR §60.3(e)(5).
The 77th Texas Legislature passed H.B. 1018, which requires that each Texas
community to adopt floodplain management plans to become eligible for the
NFIP. Water Code §16.3145. The Texas Commission on Environmental Quality
coordinates the NFIP in Texas.
The intent of this rulemaking is to make the requirements of the Beach
Dune Rules relating to ground-level enclosures consistent with the requirements
of the NFIP. The passage of H.B. 1018 and its implementation in 2001 requires
that each community comply with these standards. Such a requirement was not
in effect in 1996 when the existing §15.6(f) was adopted. 21 TexReg 3004
(Apr. 5, 1996). The NFIP requirements ensure that debris and beach obstruction
caused by building collapse in storm events will be minimized. These are also
the objectives of §15.6(f). The extensive scrutiny given to international
building codes and model flood ordinances adopted by local governments to
comply with the requirements of FEMA and the National Flood Insurance Program
ensures that allowing storage areas or multiple enclosures promotes the maintenance
of safe, accessible beaches.
The amendment will allow local governments to respond to updates to international
building codes and model flood ordinances in a manner consistent with requirements
of FEMA and the National Flood Insurance Program to promote maintenance of
safe, accessible beaches.
MAJOR ENVIRONMENTAL RULE ANALYSIS
The Land Office has evaluated the adopted rulemaking action in light of
the regulatory analysis requirements of Texas Government Code §§2001.0225,
and determined that the action is not subject to §2001.0225 because it
does not meet the definition of a "major environmental rule" as defined in
the statute. "Major environmental rule" means a rule of which the specific
intent is to protect the environment or reduce risks to human health from
environmental exposures and that may 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. The amendment is not anticipated 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 because the adopted rulemaking implements legislative requirements
in Texas Natural Resources Code §61.011, which provides the GLO with
the authority to adopt rules to preserve and enhance the public's right to
use and have access to and from the public beaches of Texas.
STATUTORY AUTHORITY
The amendment is adopted under the Texas Natural Resources Code, §61.011(d)(2)
and (6) which provides the Land Commissioner with the authority to adopt rules
concerning protection of the public beach easement from erosion or reduction
caused by development or other activities on adjacent land, and construction
on land adjacent to and landward of public beaches; and Texas Natural Resources
Code §63.121 which provides the Land Office with authority to adopt rules
for protection of critical dune areas.
Texas Natural Resources Code, §61.011 and §63.121 are affected
by the adopted amendment.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 5, 2007.
TRD-200700026
Trace Finley
Policy Director
General Land Office
Effective date: January 25, 2007
Proposal publication date: November 3, 2006
For further information, please call: (512) 475-1859