Proposed Rules Title 31

TITLE 31. NATURAL RESOURCES AND CONSERVATION

Part 1. GENERAL LAND OFFICE

Chapter 15. COASTAL AREA PLANNING

The General Land Office (GLO) proposes amendments to §15.2, relating to definitions of small and large scale construction and restoration and §15.3, relating to review periods for large and small scale construction, standard and expedited periods for review of local government beach and dune plans by the GLO, and determination of the line of vegetation by the GLO necessary for establishing the boundary of the public beach easement. The GLO proposes an amendment to §15.8, relating to beach user fees in order to provide a technical correction changing the reference from "bank accounts" to instead refer to "revenue accounts," consistent with current accounting practices.

The GLO also proposes new §15.16 and amended §15.41 in order to provide guidelines for local governments to establish Erosion Response Plans (ERPs) which incorporate a building set-back line. The guidelines for ERPs include provisions for prohibition of building habitable structures seaward of the building set-back line, exemptions for certain construction seaward of the set-back line, stricter construction requirements for exempted construction, improvements to and protection of public beach access and dunes from storm damage, and procedures for adoption of the plans. While adoption of these plans by local governments is voluntary, implementation of plans is a consideration for award of funds for Coastal Erosion Planning and Response Act (CEPRA) Projects by the Commissioner. The proposed amendment to §15.41 concerning the evaluation process for coastal erosion studies and projects adds consideration of whether a local government has implemented a building set-back line to the factors considered by the Commissioner for a CEPRA award for a project within the local government's jurisdiction.

BACKGROUND AND SECTION-BY-SECTION ANALYSIS OF PROPOSED RULES

§15.2 Definitions

The 80th Legislature enacted House Bill (HB) 2819 (Acts 2007, 80th Leg., Ch. 1256, eff. Sept. 1, 2007) which amended §61.015(c) of the Open Beaches Act (Texas Natural Resources Code §§61.001 - 61.026) and §63.056(a) of the Dune Protection Act (Texas Natural Resources Code §§63.001 - 63.1814) to allow a 30 working day period for review of development plans for large-scale construction, described as construction activity that includes greater than 5,000 square feet or habitable structures greater than two stories in height. The longer period of review applies if either of these thresholds is exceeded. The previous 10 working day period for review of development plans was maintained for review of development plans for small scale construction, described as construction activity that includes less than or equal to 5,000 square feet or habitable structures less than or equal to two stories in height. The GLO does not consider the area below the lowest habitable level of an elevated structure a "story" for the purpose of this rule. HB 2819 also amended §63.002 of the Dune Protection Act to define restoration as "the repair or replacement of dunes or dune vegetation." An amendment to §15.2 is proposed to conform the definitions of large and small scale construction in the rules to these statutory changes and to add the definition for restoration.

§15.3 Administration

HB 2819 amended Texas Natural Resources Code §33.607 to authorize local governments subject to the Open Beaches Act and the Dune Protection Act to establish and implement a plan for reducing public expenditures for erosion and storm damage losses to public and private property through the establishment and implementation of a building set-back line. The statutory requirement in §33.607(f)(3) stipulates that the building set-back line be established no further landward than the dune protection line established under Texas Natural Resources Code, Chapter 63. Section 63.121 of the Dune Protection Act authorizes the Commissioner to establish rules for the identification and protection of critical dune areas which local governments must use to establish dune protection lines, as specified in §63.011(a) of the Dune Protection Act. The GLO proposes to amend rules in §15.3(f) to ensure that a local government establishes a dune protection line a sufficient distance landward to allow establishment and implementation of a building set-back line in order to provide protection of critical dune areas from erosion caused by development.

HB 2819 amended §63.121(b)(2) of the Dune Protection Act to require certification by the Commissioner of local government procedures and requirements governing the review and approval of dune protection permits. Prior to amendment by HB 2819, the Open Beaches Act and the Dune Protection Act limited the GLO to a review period of 10 working days for beachfront construction certificates and dune protection permits for both large-scale and small-scale construction. HB 2819 amended §61.015(c) of the Open Beaches Act and §63.056(a) of the Dune Protection Act to require the commissioner's court or governing body of a municipality to send the Commissioner notice of the hearing and a copy of the certificate or permit application for large-scale construction for review and comment not less than 30 working days before the date of the public hearing. Section 15.3 is amended to incorporate the new 30 working day comment period by the GLO for beachfront construction certificates and dune protection permits applicable to large-scale construction.

HB 2819 amended §61.011(d) and §61.015(b) of the Open Beaches Act to authorize the Commissioner to establish rules for expedited review of beach access and use plans and to change the time period for plan review from 60 days to 90 days. The GLO proposes to amend §15.3 to provide three levels of plan review: a 30-day review period for plan amendments that do not contain variances or substantially alter beach access or dune protection; a 60-day review period for plan amendments that do not include changes to beach user fees, changes to beach access points, changes to vehicular access, or substantial alteration of beach access or dune protection; and a 90-day review period if beach user fees, beach access points, or vehicular access are changed and/or beach access and dune protection is substantially altered. The local government will be required to justify applications for 30-day and 60-day review periods. The proposed changes also eliminate references to the role of the attorney general's office in local government plan review based upon changes by the 78th Legislature to §61.015 of the Open Beaches Act, contained in HB 1547 (Acts 2003, 78th Leg., ch. 245, §2, eff. June 18, 2003).

HB 2819 also amended §61.011(d)(8) and §61.020(b) of the Open Beaches Act to authorize the Commissioner to establish rules for determining the line of vegetation (LOV) or natural LOV, and to provide that the Commissioner's determination of the LOV constitutes prima facie (legally sufficient) evidence of the landward boundary of the area subject to the public easement until a court adjudication establishes the line in another place. The proposed amendments to §15.3 include procedures for insuring that identification of the LOV submitted by local governments and applicants for beachfront construction certificates is verified by the GLO in a manner consistent with statutory requirements provided in §61.016 and §61.017 of the Open Beaches Act. These procedures will also require individuals seeking an LOV determination for the purpose of evaluating the suitability of property for purchase or construction to submit LOV determination requests to the local government for review prior to submission to the GLO.

§15.8 Beach User Fees

Beach user fee (BUF) regulations in §15.8 require the maintenance of separate banking accounts for BUF funds from other revenue sources. In view of technological advances in accounting, it is no longer essential to require a separate physical bank account. Currently acceptable accounting practices allow revenue to be pooled into one physical bank account, but tracked through unique revenue accounts. The proposed changes to §15.8 would modify the existing requirement to maintain separate physical accounts, which often come at additional costs, and strengthen the local government's obligation to track BUF revenues.

§15.16 Local Government Erosion Response Plans

Texas Natural Resources Code §33.607(g) as amended by HB 2819 authorizes the Commissioner to adopt rules for the establishment and implementation of a building set-back line. Section 33.607(e) establishes optional requirements for a plan to reduce public expenditures for erosion and storm damage loss to public and private properties, including public beaches, by establishing a building set-back line that will accommodate shoreline retreat. The local government is required to hold public educational meetings before implementing the plan to establish a building set-back line through the plans, orders, or ordinances provided by Chapter 61 (Open Beaches Act) and Chapter 63 (Dune Protection Act). Texas Natural Resources Code §33.607(f) provides further guidance on plan contents by outlining provisions for preservation and enhancement of the public's right of access to and use of the public beach, the protection of critical storm dunes for natural storm protection and conservation purposes, the establishment of a building set-back line, the prohibition of new construction seaward of the building set-back line, and the acquisition of fee title to or a lesser interest in property seaward of the building set-back line.

The GLO proposes new §15.16 which incorporates guidelines for local governments to address when implementing the provisions of Texas Natural Resources Code §33.607(e) and (f). The new rule includes technical standards recommending location of the set-back line at a distance of 60 times the annual erosion rate, as measured from the line of vegetation, or 25 feet landward of the landward toe of the foredune ridge, whichever is greater. Where there is no foredune ridge, the set-back line must be at least 300 feet from mean high water. The primary objective of a building set-back line is to prohibit construction of all structures seaward of the line except in cases where no practicable alternative exists. The new rule outlines matters that the plan should address including amenities, impervious cover, and purchase of fee simple or lesser interests in such property. In addition, the new rule recommends that the set-back provisions include a presumption that a permit applicant has met the dune mitigation sequence requirements for avoidance and minimization if it complies with building set-back provisions. The guidelines include exemptions from set-back requirements, including: allowance of construction on land adjacent to accreting beaches, allowance of some construction where no practicable alternative exists, repair of properties damaged by storms, and allowance of new permits for property that is the subject of an expired permit in previously approved platted subdivisions or expired master plans. Exempted properties may be subject to stricter building standards, including: setting the structure higher, open foundations, certification of foundations, development of relocation plans by a registered professional engineer, and protection of the foredune ridge. Finally, the rules include guidelines for submitting ERPs to the GLO for approval before being certified as an amendment to the local government beach access and dune protection plan and being considered for funding under CEPRA.

§15.41 Evaluation Process for Coastal Erosion Studies and Projects

Texas Natural Resources Code §33.605(b) as amended by HB 2819 requires the Commissioner to consider whether a local government is adequately administering a building set-back line established under Texas Natural Resources Code §33.607 in determining whether approve an expenditure from the Coastal Erosion Response Account for a coastal erosion study or project within a local government's jurisdiction. The GLO proposes an amendment to §15.41 to conform the GLO's rules for evaluation of CEPRA project goal summaries to the statute as amended by HB 2819.

FISCAL AND EMPLOYMENT IMPACTS

Ms. Jodena Henneke, Deputy Commissioner for the GLO's Coastal Resources Program Area, has determined that for each year of the first five years the amendments and new section as proposed are in effect there will be no fiscal implications for state government as a result of enforcing or administering the amendments and new section. There will be no fiscal impact on local governments for each of the first five years the amendments as proposed are in effect as a result of enforcing or administering the rules contained in §§15.2, 15.3, 15.8, and 15.41.

Ms. Henneke has determined that the proposed rule amendments in §§15.2, 15.3, 15.8, and 15.41 will not increase the costs of compliance for small or large businesses and individuals required to comply with the sections as amended.

Ms. Henneke has determined that there may be fiscal implications to local governments or additional costs of compliance for large and small businesses or individuals resulting from the proposed new rule for implementation of Erosion Response Plans (§15.16). However, these fiscal impacts cannot be estimated with certainty at this time, since development of these plans and the specific content of these plans are optional for local governments. In addition, it is the opinion of the GLO that the costs of implementation of Erosion Response Plans will be offset by a reduction in public expenditures for erosion and storm damage losses to private and public property. Communities that adopt substantial elements of these guidelines provided by the GLO may qualify individual flood insurance policies for reduced National Flood Insurance Program insurance rates.

Likewise, costs of compliance for businesses or individuals will be offset by reduction in losses due to storm damage. New structures that are constructed behind the building set-back line will have reduced losses because of a reduction in the intensity of storm surge and a delayed exposure to erosion. New structures constructed seaward of the building set-back line will have reduced losses because of stricter building standards and improvements in storm protection through upgrades to access points and foredune ridges. In addition, the presumption of compliance with dune mitigation sequence requirements for avoidance and minimization will simplify and reduce the cost to developers of crafting mitigation plans for large-scale developments.

Local governments may choose to purchase open land or properties damaged by storms to prevent future encroachment on the public beach or storm exposure. Funding requirements and sources will need to be identified by local governments in Erosion Response Plans for these purchases. Additionally local governments may lose eligibility for funds from the Coastal Erosion Planning and Response Account for failure to implement Erosion Response Plans intended to reduce public expenditures or establish an effective building set-back line.

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

PUBLIC BENEFIT

Ms. Henneke has also determined that each year for the first five year period the amendments and new section are in effect the public will benefit from the proposed regulations concerning review and construction of large-scale construction because the size and potential impacts of such construction require additional time for technical review and consideration of local impacts as compared with small-scale projects. The additional time will also allow the staff of GLO and local governments to meet with project developers to minimize and avoid proposed construction impacts to beach access and dune protection.

The public will benefit from the 90-day time period authorized for the review and discussion with local governments on proposed substantial changes to beach and dune plans, because the additional time will be used to assure that large and complex changes are being done in such a manner that will benefit public beach access and dune protection. The rules for expedited review authorized by HB 2819 provide a mechanism for local governments, with sufficient justification, to submit for GLO review less complex changes to plans, along with shorter time periods for review. Accounting procedures for revenues from beach user fees will be made consistent with current accounting practices.

The administrative processes for determination of the LOV provides an alternative to costly litigation. Recognition of determination of the LOV by the GLO as prima facie evidence of the landward boundary of the area subject to the public easement improves the GLO's ability to defend the common law right of the public to use and enjoyment of the public beach.

The public will benefit from local government adoption of Erosion Response Plans because of reduced public expenditures associated with loss of structures and public infrastructure due to storm damage and erosion, disaster response costs, and loss of life. The GLO is proposing that local governments establish a building set-back line 60 times the erosion rate, as measured from the LOV. For example, a shoreline experiencing an erosion rate of 6 feet per year will need a building set-back line 360 feet from the LOV. Sixty times the erosion rate represents an approximate time period for depreciation of new buildings before being subjected to erosion, especially modern hotels and condominiums. Placing structures further landward is also important because natural dune processes are allowed to continue with minimal disturbance and the risk to life and property from storm damage and public expenses of disaster relief will be reduced. By placing structures (especially taller and larger structures) further landward, the additional hazards created by tall buildings when subjected to storm surge will be reduced. Further, the increased intensity of use associated with these large building complexes and the greater demand for public services, such as sewer and water, are minimized. Larger structures are more difficult to move, and create increased pressure on the state and local government for the construction of hard erosion control structures, further increasing public expenses.

The public will also benefit due to reduced storm damage loss to properties exempted from constructing landward of the building set-back line. Exempted properties, including property which has been previously platted but has an expired beachfront construction certificate or dune protection permit, property located adjacent to accreting beaches, or property with no practicable alternative to building landward of the set-back line, will be subject to stricter building standards. Additionally, existing structures and properties constructed seaward of the building set-back line will be protected by local government implementation of plans to improve foredune ridges and beach access points to protect against storm surge. Scientific and engineering studies considered by the GLO noted that during Hurricane Alicia in 1983, vegetation line retreat and landward extent of storm washover deposits were greater for developed areas than for natural areas (Bureau of Economic Geology Circular 85-5). This difference is attributed in part to the fact that naturally occurring vegetated dunes are stronger than reconstructed dunes due to greater root depths of dune vegetation. (Circular 85-5).

CONSISTENCY WITH CMP

The proposals to amend §§15.2, 15.3, 15.8, and 15.41 concerning definitions of small scale construction, large scale construction, and restoration; review periods for large and small scale construction; standard and expedited periods for review of local government beach and dune plans; establishment of the line of vegetation as prima facie evidence for the boundary of the public beach easement; and changes for beach user fee revenue accounts, as well as the new rule for local government Erosion Response Plans contained in §15.16, are subject to the Coastal Management Program (CMP), 31 TAC §505.11(c), 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 regulations of the Coastal Coordination Council (Council). The applicable goals and policies are found at 31 TAC §501.12 (relating to Goals) and §501.26 (relating to Policies for Construction in the Beach/Dune System).

Amendments proposed to §§15.2, 15.3, 15.8, and 15.41 consist of minor technical changes to procedures for review and certification by the GLO of dune protection and beach access plans adopted by local governments and for the review and comment by GLO of development plans submitted to local governments. These procedural changes do not involve substantive changes from the GLO's Beach/Dune Rules that the Council has previously found to be consistent with the CMP. The amended rules are consistent with the CMP goal outlined in 31 TAC §501.12(4) of ensuring and enhancing public access to and enjoyment of the coastal zone in a manner that is compatible with private property rights and other uses of the coastal zone. The amended rules pertaining to procedures for LOV determinations are also consistent with the CMP policies for construction in the beach/dune system contained in 31 TAC §501.26(a)(4) by ensuring the ability of the public, individually and collectively, to exercise its common law rights of use of and access to and from public beaches.

The new rule for local government Erosion Response Plans contained in §15.16 is consistent with the CMP goals outlined in 31 TAC §501.12(1), (2), (3), and (6). These goals seek protection of CNRAs, compatible economic development and multiple uses of the coastal zone, minimization of the loss of human life and property due to the impairment and loss of CNRA functions, and coordination of GLO and local government decision-making through the establishment of clear, effective policies for the management of CNRAs. ERPs will allow the GLO and local governments to develop plans that are tailored to the unique natural features, degree of development, storm, and erosion exposure potential of each area. The new rules for ERPs in 31 TAC §15.16 are also consistent with the CMP policies outlined in 31 TAC §501.26(a)(1) and (2) that prohibit construction within a critical dune area that results in the material weakening of dunes and dune vegetation or adverse effects on the sediment budget. ERPs will provide reduced impacts to critical dunes and dune vegetation by placement of structures further landward, reduce dune area habitat and biodiversity loss, and reduce structure encroachment on the beach which leads to interruption of the natural sediment cycle.

Consequently, the GLO has determined that the proposed actions are consistent with the applicable CMP goals and policies. The proposed amendments and new section will be distributed to Council members in order to provide an opportunity for comment on the consistency of the proposed rules.

TAKINGS IMPACT ASSESSMENT

The GLO has evaluated the proposed amendments to determine whether Texas Government Code, Chapter 2007 (Private Real Property Rights Preservation Act), is applicable and a detailed takings assessment is required. The GLO has determined that the proposed amendments do 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. In the controlling legal authority on the issue, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the U.S. Supreme Court found a constitutional taking where a construction set back line "denies all economically beneficial or productive use of land." The Court held that the government must pay just compensation for such "total regulatory takings," except to the extent that "background principles of nuisance and property law" independently restrict the owner's intended use of the property.

The Open Beaches Act does not create public beach access and use rights, but rather provides a system of administration and enforcement for the rights that exist under state common law. State v. Markle, 363 S.W.2d 332 (Tex. Civ. App.-Houston 1964, no writ). See also Matcha v. Mattox, 711 S.W.2d 95, 101 (Tex. App.-Austin 1986, writ ref'd n.r.e.) cert. denied, 481 U.S. 1024 (1987). State courts have recognized the establishment of a public beach easement for unrestricted travel and recreation uses by virtue of prescriptive right, implied dedication, and custom along various parts of the Texas Gulf shore. See, e.g. Matcha, 711 S.W.2d at 98-100 (public easement by custom on Galveston's West Beach); Moody v. White, 593 S.W.2d 372, 377-79 (Tex. Civ. App.-Corpus Christi 1979, no writ) (public easement by prescription and implied dedication to beach on Mustang Island), Villa Nova Resort, Inc. v. State, 711 S.W.2d 120, 127-28 (Tex. App.-Corpus Christi 1986, no writ) (public easement by prescription and implied dedication to beach on South Padre Island).

Since widespread public use of the shore historically occurred on the sand beach seaward of the vegetated dunes, the landward boundary of this public easement is commonly the line of vegetation. Feinman v. State, 717 S.W.2d 10, 111-114 (Tex. App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.), Matcha, 711 S.W.2d at 99-100. The ribbon of public easement on the dry beach is subject to widening and narrowing, as well as net migration landward and seaward, with the natural movements of the vegetation line and the high tide line. The amendments to §15.3 include procedures for insuring that identification of the LOV submitted by local governments and applicants for beachfront construction certificates is verified by the GLO in a manner consistent with statutory requirements provided in §61.016 and §61.017 of the Open Beaches Act.

These state law principles define the bundle of rights that property owners acquire when they purchase beachfront property. Because of shore dynamics, beachfront property owners purchase both the opportunity for property gain, as well as the risk of property loss. Under Texas property law, any right of beachfront property owner to exclude the public and to keep structures on these parcels extends seaward to the vegetation line, but that yields to a superior public right as the vegetation line retreats. State courts, recognizing the public's property rights, have ordered a variety of structures to be removed from the public beach easement, including a motel, a beach house under post-storm reconstruction, a bulkhead protecting a beach house from coastal erosion, and barriers to traffic along the beach.

The purpose of the proposed amendments is to provide alternative means and methods through an administrative process for determination of the LOV. The proposed regulations further the stated purpose and accomplish results that could be achieved in the courts of this state. The alternative to adoption of the administrative process outlined in the proposed regulations is to continue to rely on costly litigation to resolve issues related to enforcement of rights to public beach access and use that exist under state common law.

New §15.16 concerning Local Government Erosion Response Plans that establish and implement a building set-back line includes guidelines providing exemptions for property for which the owner has demonstrated that no practicable alternatives to construction seaward of the building set-back line exist. In addition, the guidelines allow some beneficial use of the property seaward of the set-back line for amenities. The definition of the term "practicable" in §15.2(55) of the Beach/Dune Rules allows a local government to consider the cost of implementing a technique such as the set-back provisions in determining whether it is "practicable" in a particular application for development. In applying its regulation, the local government could determine on a case-by-case basis to permit construction of habitable structures in the area seaward of the building set-back line and landward of the line of vegetation if it caused severe and unavoidable economic impacts and thus avoid an unconstitutional taking. In addition, new §15.16 and building set-back lines adopted by local governments under that section would not constitute a statutory taking under the Private Real Property Rights Preservation Act inasmuch as Texas Natural Resources Code §33.607(h) as added by HB 2819 provides that Chapter 2007, Government Code, does not apply to a rule or local government order or ordinance authorized by §33.607.

ENVIRONMENTAL REGULATORY ANALYSIS

The GLO has evaluated the proposed 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 exceed express requirements of state law and 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 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. The proposed 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 §§33.607, 61.011, 61.015, 61.020, 63.054, 63.056, and 63.121. These sections as amended by HB 2819 provide the GLO with the authority to adopt rules for the establishment and implementation of a building set-back line by a local government as part of an ERP, rules for the preservation and enhancement of the public's right to use and have access to and from the public beaches of Texas, rules to certify that local government plans to manage the beach/dune system are consistent with state law, rules for determination of the LOV, and rules to insure that proposed construction meets the objectives of the Dune Protection Act.

PUBLIC COMMENT REQUEST

To comment on the proposed rulemaking or its consistency with the CMP goals and policies, please send a written comment to Mr. Walter Talley, Texas Register, Liaison, Texas General Land Office, P.O. Box 12873, Austin, TX 78711, facsimile number (512) 463-6311 or email to walter.talley@glo.state.tx.us. Written comments must be received no later than 5:00 p.m., thirty (30) days from the date of publication of this proposal.

Subchapter A. MANAGEMENT OF THE BEACH/DUNE SYSTEM

31 TAC §§15.2, 15.3, 15.8, 15.16

STATUTORY AUTHORITY

The amendments and new rule are proposed under Texas Natural Resources Code §§33.607, 61.011, 61.015, 61.020, 63.054, 63.056, and 63.121. These sections as amended by HB 2819 provide the Commissioner of the GLO with the authority to adopt rules for the establishment and implementation of a building set-back line by a local government as part of an ERP, rules for the preservation and enhancement of the public's right to use and have access to and from the public beaches of Texas, rules to certify that local government plans to manage the beach/dune system are consistent with state law, rules for determination of the LOV, and rules to insure that proposed construction meets the objectives of the Dune Protection Act.

Texas Natural Resources Code §§61.011, 61.015, 61.020, 63.054, 63.056, and 63.121 are affected and implemented by the proposed amendments and new rule.

§15.2.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (39) (No change.)

(40) Large-scale construction--Construction activity greater than 5,000 square feet or [~~in area and~~] habitable structures greater than two stories in height. Multiple-family habitable structures are typical of this type of construction.

(41) - (60) (No change.)

(61) Restoration--Repair or replacement of dunes or dune vegetation [ ~~The process of constructing man-made vegetated mounds, repairing damaged dunes, or vegetating existing dunes~~].

(62) - (65) (No change.)

(66) Small-scale construction--Construction activity less than or equal to 5,000 square feet or [~~and~~] habitable structures less than or equal to two stories in height. Single-family habitable structures are typical of this type of construction.

(67) - (70) (No change.)

§15.3.Administration.

(a) (No change.)

(b) Boundary of the public beach. The public beach is defined in the Open Beaches Act, §61.013(c), and §15.2 of this title (relating to Definitions). The line of vegetation is defined in the Open Beaches Act, §61.001(5), and §15.2 of this title [~~(relating to Definitions)~~]. The line of vegetation is typically used to determine the landward extent of the public beach. However, there are portions of the Texas coast where there is no marked vegetation line or the line is discontinuous or modified. In those portions of the coast, the line of vegetation shall be determined consistent with §15.10(b) of this title (relating to General Provisions) and the Open Beaches Act, §61.016 and §61.017.

(1) If there is no clearly marked line of vegetation, the "line of vegetation" delineating the public beach shall be the line of constant elevation connecting two clearly marked lines of vegetation of equal elevation on each side, but if there are no clearly marked lines of vegetation on each side, the "line of vegetation" shall not extend inland further than 200 feet from the seaward line of mean low tide.

(2) If there is no clearly marked line of vegetation, the "line of vegetation" delineating the public beach shall be the line of average elevation connecting two clearly marked lines of vegetation of unequal elevation on each side, but if there are no clearly marked lines of vegetation on each side, the "line of vegetation" shall not extend inland further than 200 feet from the seaward line of mean low tide.

(3) Individuals seeking line of vegetation determinations for a proposed purchase of property or for proposed construction must initially file a request with the local government having authority for Beachfront Construction Certificates/Dune Protection Permits. After review by the local government, the request may be forwarded to the General Land Office.

(4) When a Beachfront Construction Certificate/Dune Protection Permit application is submitted to the General Land Office for review and comment, the line of vegetation depicted on any map, aerial photograph, or other documentation shall be subject to verification by the General Land Office.

(5) The determination of the location of the line of vegetation by the commissioner of the General Land Office as provided by the Open Beaches Act, §61.016 and §61.017, constitutes prima facie evidence of the landward boundary of the area subject to the public easement until a court adjudication establishes the line in another place.

(c) Beachfront construction certification areas. The General Land Office[~~, in conjunction with the attorney general's office,~~] has the responsibility of protecting the public's right to use and have access to and from the public beach and of providing standards to the local governments certifying construction on land adjacent to the Gulf of Mexico consistent with such public rights. The Open Beaches Act, §61.011(d)(6), limits the geographic scope of the beachfront construction certification area to the land adjacent to and landward of public beaches and lying in the area either up to the first public road generally parallel to the public beach or to any closer public road not parallel to the beach, or the area up to 1,000 feet of mean high tide, whichever distance is greater. For this area, local governments shall prepare a beach access and use program, pursuant to the Open Beaches Act, §61.015, for inclusion in their dune protection and beach access plans to control any adverse effects of beachfront construction on public beach use and access. Applications for beachfront construction certificates shall be reviewed by local governments for consistency with their dune protection and beach access plans.

(d) - (e) (No change.)

(f) Establishment of dune protection lines. Pursuant to the authority provided in the Dune Protection Act, §63.011, local governments shall establish and maintain dune protection lines which preserve, at a minimum, the dunes within the critical dune areas as defined in this subchapter. The establishment of the line should include the protection of critical dune areas from erosion caused by development on adjacent land. Accordingly, the Dune Protection Line should be established in a location that will allow local governments to implement Texas Natural Resources Code, §33.607 and §15.16 of this title (relating to Local Government Erosion Response Plans). A local government must conduct a field inspection to determine the approximate location of the line unless it proposes to establish or relocate its line at a distance of 1,000 feet of mean high tide of the Gulf of Mexico, as that 1,000 feet is the maximum extent of the local government's jurisdiction for establishing dune protection lines.

(g) - (l) (No change.)

(m) Local government authority. Local governments shall include in the plans submitted to the General Land Office [ ~~and the attorney general's office~~ ] citations of all statutes, policies, and ordinances which demonstrate the authority of the local government to implement and enforce the plan in a manner consistent with the requirements of this subchapter. Local government plans shall also demonstrate the coordination, on the local level, of the dune protection, beach access, erosion response, and flood protection programs (if participating in the National Flood Insurance Program under the National Flood Insurance Act). Each local government shall integrate these programs into one plan for the management of the beach/dune system within its jurisdiction. The General Land Office will provide written guidance on the form and content of the plan upon written request by a local government.

(n) (No change.)

(o) Submission of local government plans to the General Land Office [~~state agencies~~ ]. Local governments shall submit dune protection and beach access plans to the General Land Office for review, comment, and certification as to compliance with this subchapter, the Dune Protection Act, and the Open Beaches Act [~~and to the attorney general's office for review and comment~~ ].

(1) (No change.)

(2) Review of Plan Amendments. The General Land Office shall either grant or deny certification of a local government's formally approved dune protection and beach access plan within 90 [60] days of receipt of the plan.

(A) Depending upon the degree or complexity of modifications contained in the plan amendment, the local government may request a review period shorter than 90 days based on the following guidelines:

(i) Expedited Review period of 30 days may be requested for review of a plan amendment that is administrative in nature and does not contain variances nor substantially alter beach access or dune protection.

(ii) Standard Review period of 60 days may be requested for review of a plan amendment that does not contain any changes to beach user fees, beach access points, changes to vehicular access, nor substantially alter beach access or dune protection.

(iii) The local government shall provide a reasoned justification with any request for a review period of less than 90 days. It must include a detailed description of the proposed changes that will result from the amendment.

(iv) The General Land Office will make a determination on the eligibility of an amendment for a shortened review period and notify the local government of the determination within ten working days (to run concurrently with the applicable review period) from the date the request and complete package of information regarding the proposed amendment is received. Review of plan amendments that do not qualify for a shortened review period will be completed by the General Land Office within the allowed 90 day period.

(B) In the event of denial, the General Land Office shall send the plan back to the local government with a statement of specific objections and the reasons for denial of certification, along with suggested modifications. On receipt, the local government shall revise and resubmit the plan for [~~state agency~~] review.

(3) - (4) (No change.)

(5) Subsequent to initial certification, local governments may amend their dune protection and beach access plans by submitting the proposed changes to the General Land Office for review, comment, and certification [ ~~and to the attorney general's office for review and comment~~].

(6) (No change.)

(p) Submission deadline for dune protection and beach access plans. Local governments shall submit dune protection and beach access plans to the General Land Office [ ~~and the attorney general's office~~ ] no later than 180 days from the effective date of this subchapter. If the General Land Office does not approve a plan, the local government shall submit revisions of the plan until the plan is approved. However, any local government that submits a revised plan that has not been modified to address the state comments regarding the statutory requirements and the minimum standards identified in this subchapter is presumed to be in violation of this subchapter, the Open Beaches Act, and the Dune Protection Act. Local governments that fail to submit plans within 180 days of the effective date of this subchapter will be liable for penalties as provided in §15.9 of this title (relating to Penalties). Further, local governments that fail to submit plans by that deadline will not be authorized to permit construction within the geographic scope of this subchapter.

(q) - (r) (No change.)

(s) Acts prohibited without a dune protection permit or beachfront construction certificate. An activity requiring a dune protection permit may typically also require a beachfront construction certificate and vice versa. Local governments shall, whenever possible, issue permits and certificates concurrently when an activity requires both. In their dune protection and beach access plans, local governments may combine the dune protection permit and the beachfront construction certificate into a single permit or a two-part permit; however, they are not required to do so.

(1) - (5) (No change.)

(6) General Land Office [~~State agency~~] comments.

(A) A person proposing to conduct an activity for which a permit or certificate is required shall submit a complete application to the appropriate local government. The local government shall forward the complete application, notice of public hearing, and [ ~~including~~] any associated materials[, ] to the General Land Office [ ~~and the attorney general's office~~]. The application, hearing notice, any documents associated with the application, and information as to when the decision will be made must be received by the General Land Office [~~and the attorney general's office~~] no later than ten working days for small scale construction and 30 working days for large scale construction before the date of the local government's public hearing on the application or when the local government is first scheduled to act on the permit or certificate. [Local governments shall not act on a permit or certificate application if the General Land Office and the attorney general's office have not received the application for the permit or certificate at least ten working days before the local government is first scheduled to act on the permit or certificate. However, a ] A local government may act on such applications following the public hearing or a decision by the commissioner's court or municipal governing body if the General Land Office [~~state agencies~~] received the application within the proper time frame and the state provides comments or does not submit comments on the application to the local government.

(B) The General Land Office [~~and the attorney general's office~~ ] may submit comments on the proposed activity to the local government. The review period for comments of ten working days for small scale construction and 30 working days for large scale construction is initiated only after the receipt by the General Land Office of all information required by this section.

(7) Local government review. When determining whether to approve a proposed activity, a local government shall review and consider:

(A) - (C) (No change.)

(D) the comments of the General Land Office [ ~~the attorney general's office~~]; and

(E) (No change.)

(t) (No change.)

(u) Administrative record.

(1) (No change.)

(2) Local governments shall keep the administrative record for a minimum of three years from the date of a final decision on a permit or certificate. Local governments shall send to the General Land Office [~~or the attorney general's office,~~ ] upon request [~~by either agency,~~ ] a copy of those portions of the administrative record that were not originally sent to those agencies for permit or certificate application review and comment. The record must be received by the General Land Office [ ~~appropriate agency~~ ] no later than ten working days after the local government receives the request. The General Land Office [~~state agency reviewing the administrative record~~] shall notify the appropriate permittee of the request for a copy of the administrative record from the local government. Upon request of the permittee, a local government shall provide to the permittee copies of any materials in the administrative record regarding the permit or certificate which were not submitted to the local government by the permittee (i.e., the permit application) or given to the permittee by the local government (i.e., the permit).

§15.8.Beach User Fees.

(a) - (f) (No change.)

(g) Beach user fee accounts. Local governments shall use [~~follow~~ ] the following methods for administering beach user fee accounts.

(1) Beach user fee revenues shall be maintained and accounted for so that fee collections may be directly traced to expenditures on beach-related services. Beach user fee revenues shall not be commingled with any other funds and shall be maintained in separate revenue [~~bank~~] accounts.

(2) Beach user fee revenues shall be maintained in a separate revenue account and documented in a separate financial statement for each beach user fee. Beach user fee revenue account balances and expenditures shall be documented according to generally accepted accounting principles.

(h) - (k) (No change.)

§15.16.Local Government Erosion Response Plans.

(a) Pursuant to the authority granted by Texas Natural Resources Code, §33.607, local governments may develop plans for reducing public expenditures for erosion and storm damage losses to public and private property, including public beaches. The Erosion Response Plan (ERP) should be prepared in consultation with the General Land Office and include the following elements:

(1) A building set-back line that will accommodate a shoreline retreat. The local government should consider the following technical standards in establishing a building set-back line:

(A) Historical erosion rates as determined by the University of Texas at Austin, Bureau of Economic Geology. The preferred approach to using the historical erosion rate is a distance of no less than the greater of:

(i) 60 times the annual erosion rate, measured from the line of vegetation, or

(ii) 25 feet landward of the landward toe of the foredune ridge, or if there is no foredune ridge, 300 feet landward of mean high water of the Gulf of Mexico.

(B) The line of vegetation (LOV). The LOV, which is determined by procedures established in the Open Beaches Act, should be the initial reference feature for determining the distance landward to establish the building set-back line.

(C) The dune protection line (DPL). The building set-back line may not be located further landward than the DPL, which is established by a local government under the Dune Protection Act and updated as specified in §15.3(k) of this title (relating to Local Government Review of Dune Protection Line Location). The building set-back line should protect as much of the critical dune area as possible.

(2) A prohibition on new construction seaward of the building set-back line. The prohibition criteria should include at least the following minimum components:

(A) To the extent practicable, all habitable structures shall be constructed landward of the building set-back line.

(B) Construction seaward of the building set-back line should be limited to amenities located at least 25 feet landward of the landward toe of the foredune ridge or, if there is no foredune ridge, 300 feet landward of mean high water of the Gulf of Mexico, provided that the impervious cover requirements of §15.5(b)(3) and §15.6(f)(3) are followed and the applicant demonstrates that every attempt has been made to minimize use of impervious surfaces in this area.

(C) Construction of structures landward of the building set-back line establishes a rebuttable presumption that the permittee has followed the mitigation sequence requirements for avoidance and minimization of effects on dunes and dune vegetation specified in §15.4(f) of this title (relating to Mitigation). However, the permittee is not exempt from compliance with compensatory mitigation requirements for unavoidable adverse effect on dunes and dune vegetation.

(D) The local government should develop criteria for identifying properties located entirely seaward of the building set-back line, providing for acquisition of fee simple title or a lesser interest in such properties, and techniques for prioritizing properties to be acquired.

(3) Exemptions from the prohibition of residential and commercial construction seaward of the building set-back line.

(A) Properties in areas which have demonstrated historical accretion of greater than two feet per year as determined by the University of Texas at Austin, Bureau of Economic Geology.

(B) Properties for which the owner has demonstrated to the satisfaction of the local government that no practicable alternatives to construction seaward of the building set-back line exist. For purposes of this section, practicable means available and capable of being done after taking into consideration existing building practices, costs, siting alternatives, and the footprint of the structure in relation to the area of the buildable portion of the lot, and considering the overall development scheme for the property.

(C) Properties for which construction is permitted under a dune protection and beach access plan establishing a building set-back line certified by the General Land Office prior to the effective date of this section.

(D) Structures located seaward of the building set-back line prior to the effective date of this section for which modifications are sought that do not increase the footprint of the structure. However, structures seaward of the building set-back line that are damaged more than 50% or destroyed by a meteorological event should be subject to this section before any repairs or reconstruction may be conducted. These properties with damaged structures may be considered in the ERP for acquisition of fee simple title to or a lesser interest in the property.

(E) Previously platted subdivision lots that were the subject of an expired beachfront construction certificate or dune protection permit or that were part of a master planned development, the plans for which were previously approved and adopted by the governing body of the local government, provided that the construction authorized by a new permit or certificate is consistent with the prior permit, certificate, or master plan.

(4) Construction requirements for properties exempt from the prohibition for building seaward of the building set-back line. Requirements should include the following:

(A) A minimum three-foot freeboard above base flood elevation (BFE);

(B) Open foundations;

(C) Certification by a registered professional engineer or architect as to the adequacy of elevated building foundations and the proper placement, compaction, and protection of fill when used as construction for all newly constructed, substantially damaged, and substantially improved buildings elevated on pilings, posts, piers, or columns so that the bottom of the lowest horizontal structural member of the lowest floor (excluding the vertical foundation members) is at or above the BFE;

(D) Submission of a plan prepared by a registered professional engineer for feasible relocation of any habitable structure less than 5,000 square feet; and

(E) Where practicable, all construction should be located at least 25 feet landward of the landward toe of the foredune ridge or, if there is no foredune ridge, 300 feet landward of mean high water of the Gulf of Mexico.

(5) Procedures for preserving and enhancing the public's right of access to and use of the public beach from losses due to erosion and storm damage. The ERP should identify specific areas of public access that require protection from erosion and storm surge and list goals and implementation schedules for design improvements, including but not limited to incorporation of humps and oblique or meandering approaches.

(6) Procedures for preserving, restoring, and enhancing critical sand dunes for natural storm protection and conservation purposes. The ERP should identify specific goals and implementation schedules for protecting dunes, ensuring that existing dunes protect inland areas against a 100-year storm surge, and provide for dune restoration projects to fill gaps in the foredune ridge created by private access and blowouts, as applicable.

(b) The local government shall hold a public educational meeting on the ERP before implementation. The meeting may be held in conjunction with the formal hearing required for establishment of a new DPL, as outlined in §15.3(l) of this title (relating to Provisions for Public Hearings on Dune Protection Lines). If held separately from the hearing on a new DPL, the meeting shall be advertised in the same manner outlined in §15.3(l) of this title.

(c) The ERP shall be submitted to the General Land Office for review and approval as a dune protection and beach access plan amendment following the procedures outlined in §15.3(o) of this title (relating to Submission of Local Government Plans to the General Land Office).

(1) A local government's governing body should formally approve the ERP prior to submission to the General Land Office. The General Land Office shall either grant or deny certification of the local government's ERP within 90 days from receipt, as outlined in §15.3(o) of this title. Certification will be based upon the following criteria:

(A) The ERP should clearly demonstrate how public expenditures will be reduced because of measures incorporated into the ERP;

(B) The ERP should clearly demonstrate that the building set-back line will be effective in moving construction landward;

(C) The ERP should identify potential sources of funding for acquiring fee simple title to or a lesser interest in properties seaward of the building set-back line;

(D) The ERP should incorporate measures to protect public access and critical dunes and support such measures through goals and implementation schedules;

(E) If the ERP includes a variance from other requirements or prohibitions of this chapter, the local government must provide a reasoned justification for the variance in accordance with §15.3(o)(6) of this title; and

(F) Construction prohibitions, exemptions, and requirements of the ERP should be incorporated into the local government procedures for reviewing and approving permit applications.

(2) In the event of denial, the General Land Office shall send the ERP back to the local government with a statement of specific objections and the reasons for denial of certification, along with suggestions for modifications. On receipt of the denial, the local government may revise and resubmit the ERP for General Land Office review.

(3) A local government implementing an ERP pursuant to this section must ensure that the ERP is consistent with other provisions of its dune protection and beach access plan through appropriate amendments and incorporate the ERP into the local government dune protection and beach access plan as a separate appendix that clearly identifies portions of the dune protection and beach access plan that implements the ERP. The ERP must be updated every five years concurrent with the five-year update of the DPL.

(4) In order to be fully considered by the Commissioner of the General Land Office (commissioner) for an expenditure related to a Coastal Planning and Response Account (CEPRA) project, a local government must adopt and submit the ERP to the General Land Office for certification no later than December 31 immediately preceding the state fiscal biennium in which funding is sought. Provided, however, for consideration by the commissioner for an expenditure related to a CEPRA project in the state fiscal biennium beginning September 1, 2009, a local government must submit a draft ERP to the General Land Office no later than July 1, 2009. An amendment or change to the ERP sought by a local government or resulting from the required five-year update must be submitted to the General Land Office no later than July 1 immediately preceding the state fiscal biennium in which funding is sought.

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 May 2, 2008.

TRD-200802342

Trace Finley

Deputy Commissioner, Policy and Governmental Affairs

General Land Office

Earliest possible date of adoption: June 15, 2008

For further information, please call: (512) 475-1859

Subchapter B. COASTAL EROSION PLANNING AND RESPONSE

31 TAC §15.41

STATUTORY AUTHORITY

The amendment is proposed under Texas Natural Resources Code §33.602(c) which provides the Commissioner of the GLO with authority to adopted rules necessary to implement Texas Natural Resources Code, Subchapter H (the Coastal Erosion Planning and Response Act) and Texas Natural Resources Code §33.605 which requires the Commissioner to consider whether a local government is adequately administering a building set-back line established under Texas Natural Resources Code §33.607 in determining whether to approve an expenditure from the Coastal Erosion Response Account for a coastal erosion study or project within a local government's jurisdiction.

Texas Natural Resources Code §33.605 and §33.607 are affected and implemented by the proposed amendment.

§15.41.Evaluation Process for Coastal Erosion Studies and Projects.

The General Land Office (Land Office) will evaluate potential projects proposed by potential project partners for funding from the coastal erosion response account (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) - (B) (No change.)

(i) - (v) (No change.)

(vi) if the project is located within the jurisdiction of a local government that administers a beach/dune program: [, ]

(I) 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); and

(II) whether the local government has implemented a building set-back line established under Texas Natural Resources Code, §33.607, and §15.16 of this title (relating to Local Government Erosion Response Plans);

(vii) - (xi) (No change.)

(D) - (E) (No change.)

(2) (No change.)