Chapter 15. COASTAL AREA PLANNING
Subchapter A. MANAGEMENT OF THE BEACH/DUNE SYSTEM
The General Land Office (GLO) adopts amendments to §15.29 relating to Certification Status of City of the Village of Jamaica Beach Dune Protection and Beach Access Plan (Plan) with changes to the text as proposed in the January 4, 2008, issue of the Texas Register (33 TexReg 61). The changes to the adopted text are minor and reflect the change of the references to the Village of Jamaica Beach to its official name "City of the Village of Jamaica Beach." The GLO adopts an amendment to §15.29 concerning the certification status of the Plan, adopted on August 16, 1993, and amended by the City of the Village of Jamaica Beach (Village), on December 6, 1993. The amendment to §15.29 certifies as consistent with state law the amendments to the Village Plan that were adopted on September 17, 2007, by Ordinance No. 2007-6. The amendment includes a variance requested by the Village relating to the use of unreinforced fibercrete in four feet by four feet sections in the area 25 feet landward of the north toe of the dune to 200 feet landward of the line of vegetation. Copies of the local government dune protection and beach access plan and any amendments to those plans are available from the City Secretary, Teri White, who may be contacted at P.O. Box 5264, Jamaica Beach, TX 77554, Phone: (409) 737-1142, Fax: (409) 737-5211, Email: cityadmin@ci.jamaicabeach.tx.us.
BACKGROUND
Pursuant to the Open Beaches Act (Texas Natural Resources Code, Chapter 61), the Dune Protection Act (Texas Natural Resources Code, Chapter 63), and the Beach/Dune Rules (31 TAC §§15.1 - 15.12 and 15.21 - 15.36), a local government with jurisdiction over Gulf Coast beaches must submit its dune protection and beach access plan and any amendments to such a plan to the GLO for certification pursuant to 31 TAC §15.3(o). The GLO reviews a local beach access and dune protection plan and, if appropriate, certifies that the plan is consistent with state law by adoption or amendment of a rule as authorized in Texas Natural Resources Code §§61.011(d)(5), 61.015(b), and 63.054(c). The certification by rule reflects the state's approval of the plan, but the text of the plan is not adopted by the GLO as provided in 31 TAC §15.3(o)(4).
A local government requesting certification of a plan or plan amendment that includes a variance of any requirement or prohibition in the GLO's Beach/Dune Rules must submit to the GLO a reasoned justification demonstrating how the variance provides equal or better protection of dunes, dune vegetation, and public access to and use of the public beach than is provided by the Beach/Dune Rules as provided in 31 TAC §15.3(o)(6).
Jamaica Beach is a coastal community located on Galveston Island, a barrier island accessible from the east via Interstate Highway 45 and FM 3005, and from the west via State Highway 332, Bluewater Highway, and the bridge at San Luis Pass. The Village consists of areas bordering Galveston Bay to the northwest and the Gulf of Mexico to the southeast, and bordered on the northeast and the southwest by the City of Galveston. The Village includes approximately 2/3 miles of beach bordering on the Gulf of Mexico.
The Gulf beaches and adjacent areas governed by the Plan are those areas within the corporate limits of the City of the Village of Jamaica Beach. Galveston County expressly delegated the authority to regulate dune protection and beach access in the Village of Jamaica Beach to the Village in Section II(C)(3) of the Galveston County dune protection and beach access plan certified as consistent with state Law in 31 TAC §15.35.
VARIANCE
On September 17, 2007, the City Council of Jamaica Beach adopted amendments to its Plan and submitted those amendments to the GLO with a request for certification received by the GLO on September 24, 2007. The Village requested that the GLO certify a Plan amendment that includes a variance from the prohibitions and requirements of §§15.4(c)(8), 15.5(b)(3), and 15.6(f)(3) of the Beach/Dune Rules. Section 15.4(c)(8) prohibits the construction of concrete slabs or other impervious surfaces within 200 feet landward of the natural line of vegetation. Section 15.5(b)(3) prohibits a local government from issuing a beachfront construction certificate if the construction includes a proposal to build a concrete slab or other impervious surface within 200 feet landward of the line of vegetation or within the eroding area boundary, whichever distance is greater. Section 15.6(f)(3) applies to construction in eroding areas and provides that a local government may allow a permittee to alter or pave only the ground within the footprint of the habitable structure only if the alteration or paving will be entirely undertaken, constructed, and located landward of 200 feet landward from the line of vegetation or landward of an eroding area boundary established in the local dune protection and beach access plan, whichever distance is greater.
The requested variance establishes special standards for eroding areas providing that: (1) paving or altering the grade 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) 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 Building Official, in that area 25 feet from the north toe of the dune to 200 feet landward of the line of vegetation, with driveway width limited to no more width than necessary to service two vehicles; (3) the City shall assess a "Fibercrete Maintenance fee" of $200.00 to be used to pay for the clean-up of fibercrete from the public beaches should the need arise; and (4) reinforced concrete may be used under the habitable structure and for a driveway connecting the habitable structure and the street in that area landward of 200 feet from the line of vegetation. The use of the term "expansion joist" in the ordinance is understood by the GLO to mean the "expansion joint" or area of separation between the fibercrete sections.
SUMMARY AND RESPONSE TO PUBLIC COMMENT
The GLO received comments on the adopted amendment from Lorraine Brown stating that the commenter had no problem with the fibercrete ordinance. However, the commenter stated that the Plan amendment should not be approved because the Village is not in compliance with its dune protection and beach access plan due to the lack of beach access signage on FM 3005 and at the entrance to the beach access roads and the lack of public access to the beach. The GLO expresses no opinion in this rulemaking action with regard to these assertions and disagrees with the commenter that the Village's compliance with respect to signage and beach access is relevant to a determination by the GLO as to whether the Plan amendments concerning fibercrete as submitted by the Village are consistent with the OBA, the Dune Protection Act, and the GLO's Beach/Dune Rules. The Plan amendments as submitted made no changes to vehicular restrictions or beach access. No change in the adopted amendment was made based on these comments. However, the GLO will investigate the commenter's assertions concerning compliance with requirements for signage and beach access and take appropriate action.
REASONED JUSTIFICATION
The reasoned justification submitted by the Village in support of its request for the variance authorizing the use of fibercrete in eroding areas within 200 feet seaward of the line of vegetation demonstrates that it advances the public interest and provides an equal or better level of protection of dunes, dune vegetation, and public access to and use of the beach in that: (1) the ordinance provides financial assurance for debris removal and beach clean-up through imposition of the $200 fibercrete maintenance fee; (2) debris removal and beach clean-up are facilitated by the use of unreinforced fibercrete in large 4 foot x 4 foot sections rather than small pavers, with less sand removed from the beach during clean-up; and (3) prohibiting the use of fibercrete in the area between the line of vegetation and 25 feet from the north toe of the dune ensures that dune hydrology are not adversely affected. In addition, the fibercrete ordinance is consistent with a similar ordinances adopted by the City of Galveston and Galveston County for similar conditions nearby and certification of the Village's ordinance promotes uniformity in regulations.
The GLO finds that, based on reasoned justification submitted by the Village in support of its request for the variance authorizing the use of fibercrete, the adopted amendments to the Plan provide an equal or better level of protection of dunes, dune vegetation, and public access to and use of the public beach. Accordingly, the General Land Office finds that the variance requested by the Village meets the requirements for a variance under §15.3(o)(6) of the Beach/Dune Rules and hereby certifies as consistent with state law the requested variances from §§15.4(c)(8), 15.5(b)(3), and 15.6(f)(3) of the Beach/Dune Rules (relating to Dune Protection Standards, Beachfront Construction Standards, and Concurrent Dune Protection and Beachfront Construction Standards). Certification of the Plan amendment shall not be considered in any manner as a waiver of rights of the GLO concerning any previous failure by the Village to comply with its certified plan, the Open Beaches Act, the Dune Protection Act, and the Beach/Dune Rules.
CONSISTENCY WITH CMP
The adopted amendment to §15.29 concerning Certification Status of Village of Jamaica Beach 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 GLO 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 applicable goals and policies are found at 31 TAC §501.26, relating to Policies for Construction in the Beach/Dune System, and §501.27, relating to Policies for Development in Coastal Hazard Areas. The amendment will not allow the material weakening of dunes and does not affect the requirement that unavoidable damage to dunes and dune vegetation be compensated. Additionally, the amendment will preserve public beach access by assisting with debris removal in the event of a storm. The GLO has determined that the proposed actions provide equal or better protection for dunes, dune vegetation, and public access to and use of the beach as the GLO's Beach/Dune Rules that the Council has determined to be consistent with the CMP. Consequently, the GLO has determined that the proposed actions are consistent with applicable CMP goals and policies. No comment on the consistency of the adopted amendment with the CMP was received during the comment period.
ENVIRONMENTAL REGULATORY ANALYSIS
The GLO 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 exposure 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 adopted amendments are 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 proposed rulemaking implements legislative requirements in Texas Natural Resources Code §§61.011, 61.015(b), and 61.022(c), which provide 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 and Texas Natural Resources Code §63.121 which provides the Texas General Land Office with authority to adopt rules for protection of critical dune areas.
STATUTORY AUTHORITY.
The amendments are adopted under the Texas Natural Resources Code §§61.011, 61.015(b), 61.022(c), and 61.070, which provide 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 and to certify that plans to impose or increase public beach access, parking, or use fees are consistent with state law. In addition, Texas Natural Resources Code §63.054 and §63.121 provide the Texas General Land Office with authority certify local government dune protection plans and to adopt rules for protection of critical dune areas.
Texas Natural Resources Code §§61.011, 61.015, 61.022, 61.070, and 63.121 are affected by the proposed amendments.
§15.29.Certification Status of City of the Village of Jamaica Beach Dune Protection and Beach Access Plan.
(a) The City of the Village of Jamaica Beach has submitted to the General Land Office a dune protection and beach access plan which is certified as consistent with state law. The Village's plan was adopted on August 16, 1993 and amended December 6, 1993 and September 17, 2007.
(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) of this title (relating to Dune Protection Standards, Beachfront Construction Standards, and Concurrent Dune Protection and Beachfront Construction Standards) in the Village's plan. The plan establishes special standards for eroding areas providing that:
(1) paving or altering the grade 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) 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 maximum of 4 foot x 4 foot sections, which shall be a maximum of four inches thick with sections separated by expansion joists or pervious materials approved by the City Building Official, in that area 25 feet from the north toe of the dune to 200 feet landward of the line of vegetation, with driveway width limited to no more width than necessary to service two vehicles;
(3) a "Fibercrete Maintenance fee" of $200.00 shall be assessed to be used to pay for the clean-up of fibercrete from the public beaches should the need arise; and
(4) reinforced concrete may used under the habitable structure and for a driveway connecting the habitable structure and the street in that area landward of 200 feet from the line of vegetation.
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 March 20, 2008.
TRD-200801523
Trace Finley
Policy Director
General Land Office
Effective date: April 9, 2008
Proposal publication date: January 4, 2008
For further information, please call: (512) 475-1859