CHAPTER 15. COASTAL AREA PLANNING
SUBCHAPTER A. MANAGEMENT OF THE BEACH/DUNE SYSTEM
The General Land Office (GLO) proposes new §15.13 concerning Disaster Recovery Orders to provide procedures for the use of temporary standards for dune restoration and structure stabilization and repair after a disaster and to assist local governments in restoring beach access and dune protection during such a period. The coastal destruction caused by Hurricane Ike in September 2008 demonstrates the need for long-term procedures that can be implemented when certain disaster conditions exist. These procedures will enable local governments and their citizens to better respond to coastal disasters and allow these areas to protect and rebuild in the most efficient and safe manner possible, while still protecting coastal areas and the public's right to use and access the public beach.
ANALYSIS OF PROPOSED RULE
The proposed new rule applies only to a local government with a local dune protection and beach access plan within a coastal county that has been included in a disaster declaration made by the governor or in which a natural disaster has occurred, as determined by the commissioner. A disaster recovery order issued by the commissioner pursuant to the proposed new rule will be effective for a period of two years unless a shorter period of recovery is specified.
Pursuant to a disaster recovery order issued under the proposed new rule, local governments may authorize repairs necessary to render a structure habitable or to prevent further damage or to stabilize a residential structure that is subject to collapse or substantial further damage as a result of erosion or undermining. For structures with intact foundations after a disaster, local governments may also authorize enclosed spaces with breakaway or louvered walls at ground level, if such authorization would be consistent with the local dune protection and beach access plan and the National Flood Insurance Program. A local government may grant authorization for recovery repairs of a residential structure that encroaches or may encroach on the public beach if the structure is eligible under §15.11, relating to Repairs to Certain Houses Located Seaward of the Boundary of the Public Beach, and is not subject to a pending enforcement action. Authorized repairs may include construction underneath, outside, or around the house that includes fibercrete or other materials necessary to restore reasonable access to a house for disabled persons that existed prior to the disaster. Finally, a local government may authorize the placement of beach-quality sand and, in certain instances, clay or sandy clay, on a lot if certain conditions are met and only if the placement is necessary to prevent further erosion due to wind and water.
The proposed new rule also authorizes local governments to permit persons to construct dunes in an area no more than 30 feet seaward of the post-disaster landward boundary of the public beach if certain conditions are met. The proposed new rule authorizes the use of additional types of materials for restored dunes to provide additional stability for restored dunes and to encourage dune restoration activities by local governments and property owners. In accordance with the Beach/Dune rules, restoration of dunes may not result in increased flooding to the site or adjacent property, aggravate erosion, result in adverse effects to dune hydrology, increase the vulnerability to washouts or blowouts, or interfere with the public's right of access to the beach at normal high tide. The proposed new rule allows a local government to defer the review of the dune protection line up to one year from the date of the disaster recovery order rather than 90 days required under §15.3(k).
The proposed new rule provides guidelines for the continuation of authorized beach access and dune protection measures, including variances that permit the use of fibercrete within 200 feet of the line of vegetation in an eroding area. For a local government with a fibercrete variance, authorized repairs may include construction underneath, outside, or around the house that includes fibercrete or other materials necessary to restore reasonable access to a house for disabled persons, provided that such access existed prior to the disaster, including a house that has become located on the beach or where there is no dune.
The proposed new rule allows a local government to temporarily close beach access points damaged beyond repair or temporarily blocked by emergency shore protection projects to prevent damage to infrastructure without a formal plan amendment with notice to the commissioner. The local government must ensure that the period of limited beach access in that area does not exceed the duration of the disaster recovery order and must submit to the commissioner a timeline for amending the local plan or a remedy to restore access no later than six months prior to the expiration of the disaster recovery order.
The proposed new rule also outlines the specific situations that must exist before a local government may authorize repairs to an existing shoreline protection project in order to minimize impacts to adjacent property. The proposed new rule prohibits the use of materials such as bulkheads, riprap, concrete, asphalt rubble, building construction materials, non-biodegradable items, sediments containing certain hazardous substances, and sand obtained by scraping or grading dunes or from beaches in eroding areas when making approved repairs or conducting dune restoration activities.
The proposed new rule allows the commissioner to require that a local government suspend the authority of a permittee to scrape a beach under a previously issued permit for beach maintenance practices that include scraping of the beach based on a material change in circumstances. The local government may require that a permittee apply for a new permit or certificate for beach maintenance practices with an opportunity for comment by the commissioner.
The proposed new rule requires a local government or other governmental entity authorized by law to clean, maintain, and clear debris from the public beach to coordinate with property owners to remove debris from the public beach as soon as possible to minimize the threat of damage to public health, safety, welfare, and property.
Finally, the proposed new rule provides for review of permit applications by the GLO and requires local governments to monitor permitted actions, including dune restoration projects. The proposed new rule does not create a property right of any kind in a littoral property owner and removal actions may still be commenced against the owner of a structure regardless of whether the structure is eligible for repairs pursuant to the new rule.
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 amended sections as proposed are in effect there will be no additional cost to state government as a result of enforcing or administering the new section.
Ms. Henneke has determined that for each year of the first five years the new section as proposed is in effect there could be fiscal implications for local governments as a result of enforcing or administering the amended section. In areas affected by an order issued under the proposed new rule, Ms. Henneke estimates that local governments may incur between $50,000 and $60,000 in costs each year attributed to staff time devoted to the monitoring requirements contained in §15.13(q). Some of the fiscal implications attributed to local governments may be mitigated through reimbursement programs administered by the GLO, including the Coastal Management Program, the Coastal Erosion Planning and Response Act, and beach maintenance reimbursement.
Ms. Henneke has also determined that the proposed new section will not have adverse economic impacts or increase the costs of compliance for small or large businesses and individuals required to comply with the new section. Thousands of small businesses and micro-businesses are located in coastal counties, and the projected economic impact of this new rule on these small businesses will be neutral to positive in that businesses will be able to more efficiently conduct repairs after a disaster.
Ms. Henneke has determined that the proposed rulemaking will have no adverse local employment impact that requires an impact statement pursuant to Texas Government Code §2001.022.
PUBLIC BENEFIT
Ms. Henneke has also determined that each year for the first five year period the new section is in effect the public will benefit from the proposed regulations because they will provide more certainty of recovery measures allowed in the wake of a coastal disaster. In addition, property owners and business owners will be able to more efficiently repair structures and protect their property because the new rule provides clear standards by which repairs may be made and dunes may be restored.
The proposed new rule provides additional types of materials for stabilization underneath structures and for restored dunes, providing additional defenses and stability for restored dunes and to encourage dune restoration activities by local governments and property owners. The GLO has determined that when dunes are obliterated, more than one season is generally required before dune vegetation can grow enough to stabilize the replacement dune. Therefore, the proposed new rule authorizes the use of clay material to provide strength and integrity to the dune and to stabilize structures until the natural vegetation recovers. In addition, the proposed new rule allows for an additional ten feet for the dune restoration area, provided that the project does not interfere with beach access or result in other adverse effects as listed in §15.13(h)(5). This larger area will facilitate a larger dune, thus providing better protection for property landward of the dune restoration project. Furthermore, recovery of the beach through natural processes will ultimately result in a dune no further seaward than if the normal 20 foot restoration area had been utilized.
The public will benefit from the provisions pertaining to the use of fibercrete because it provides certainty for those jurisdictions that have a variance allowing the use of fibercrete and encourages dune restoration activities to provide protection from flooding and erosion. The public will also benefit from allowing restoration of access for disabled persons to eligible structures, including the use of fibercrete under the house.
The public will benefit from the provision allowing a local government to delay reviewing the dune protection line up to a year, because it allows the local government to focus on recovery efforts before undertaking the technical review of the dune protection line, while at the same time requiring a time table for the required reevaluation.
The provisions allowing a local government to temporarily close beach access points damaged beyond repair or temporarily blocked by emergency shore protection projects to prevent damage to infrastructure benefits the public by allowing a local government to address threats to public safety in its exercise of its police power. The provision limits the duration of the closure to the recovery period, and requires a timeline for restoration of access or formal amendment to the beach access plan.
Finally, the public will benefit from the increased scrutiny of beach maintenance practices, including those previously permitted by a local government. The damage to the beach/dune system caused by Hurricane Ike and resulting loss to the sediment budget left the beaches and dunes more vulnerable than ever to imprudent practices that do not protect these valuable resources. The abundance of seaweed in the spring, followed closely by the summer tourist season and the hurricane season necessitates a closer look at any beach maintenance practices in areas subject to a disaster recovery order to ensure that adverse impacts to the beach/dune system are minimized and that beach maintenance practices facilitate dune restoration.
CONSISTENCY WITH CMP
The proposal to add §15.13 is 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 §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 proposed action is consistent with the policy in §501.26 in that the new rule encourages practices including dune restoration and measures other than structural erosion response measures. Although the new rule allows repair of certain structures located on the public beach, the practices allowed do not increase the impact to the right of the public to use and access the public beach. An existing erosion response structure that may be repaired under the rule must comply with the standards for shore protection projects found in §501.26(b). Further, the provisions of the new rule that allow ground level enclosures are consistent with the policies in §501.27 in that such enclosures must comply with the requirements of the National Flood Insurance Program.
Consequently, the GLO has determined that the proposed action is consistent with the applicable CMP goals and policies. The proposed new section will be distributed to Council members in order to provide an opportunity for comment on its consistency with the CMP.
TAKINGS IMPACT ASSESSMENT
The GLO has evaluated the proposed rulemaking in accordance with Texas Government Code §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines to determine whether a detailed takings impact assessment is required. The GLO has determined that the proposed rulemaking 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 rulemaking 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 new rule.
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.
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.
STATUTORY AUTHORITY
The new rule is proposed under Texas Natural Resources Code §§61.011(d), 61.015(b) and 63.121, 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 Texas's public beaches; to protect the public easement from erosion or reduction caused by development or other activities on adjacent land and beach cleanup and maintenance; for other minimum measures needed to mitigate for adverse effects on access to public beaches and the beach/dune system; for the reasonable exercise of the police power by local governments with respect to the public beaches; for determination of the line of vegetation and structures located near or on the public beach; and to identify and protect critical dune areas. The new section is also adopted pursuant to Texas Water Code §16.321, which provides the GLO with the authority to adopt rules on coastal flood protection.
§15.13.Disaster Recovery Orders.
(a) Purpose. This section is intended to provide procedures for the commissioner to implement by order the use by a local government of temporary standards for stabilization and repair of structures and dune restoration during a period of recovery following a severely damaging declared or natural disaster and to assist local governments in restoring beach access and dune protection.
(b) Applicability. This section applies only to a local government with a local dune protection and beach access plan within a coastal county that has been included in a disaster declaration made by the governor under §418.014, Texas Government Code or in which a natural disaster has occurred, as determined by the commissioner. The temporary standards authorized by this section shall be effective for a period of two years from the date of the issuance of disaster recovery order by the commissioner, unless a shorter period of recovery is specified in the order.
(c) Disaster recovery order. The commissioner may issue a disaster recovery order pursuant to this section to authorize temporary standards for stabilization and repair of structures, dune restoration, and other minimum measures needed to mitigate for adverse effect to public access and dune areas caused by a damaging declared or natural disaster. The disaster recovery order shall identify the nature of the disaster, the name of the disaster and time and location of landfall (if applicable), any coastal county or counties to which the order applies, the date of issuance, and the expiration date of the order. The order is effective upon issuance by the commissioner. Notice of the order issued under this section shall be:
(1) posted on the General Land Office's (GLO) Internet website;
(2) published by the GLO as a miscellaneous document in the Texas Register; and
(3) sent to the governing body of a local government to which the order applies.
(d) Conflict. The provisions of this section supplement the Beach/Dune Rules (§§15.1 - 15.12 of this title). However, if there is a conflict between this section and the provisions of the Beach/Dune Rules, this section applies.
(e) Definitions. In addition to the definitions contained in §15.2 of this title (relating to Definitions), the following words and terms, as used in this section, shall have the following meanings:
(1) Beach debris--Anything that is not native to the beach and beach/dune system, including but not limited to pilings, concrete, fibercrete, rebar, riprap, boulders, automobile parts, rubble mounds, damaged dune walkovers, garbage, septic systems, and other objects, that may pose a hazard to public health and safety and/or no longer serve the purpose for which they were originally intended.
(2) Boundary of the public beach--The landward edge of the public beach, as described in §15.3(b) of this title (relating to Administration). For purposes of this section, the commissioner may provide local governments with a temporary standard that includes a demarcation of the landward boundary of the public beach based on a line of constant elevation to use when issuing beachfront construction certificates and dune protection permits in locations where the natural line of vegetation has been severely damaged by the disaster that precipitated the recovery order. If the commissioner provides such a temporary standard, the standard shall be publicized on the GLO's website and local governments shall be given adequate notice of the temporary standard and the duration of its effectiveness.
(3) Coastal county--Any Texas county with a Gulf-facing beach within its boundaries.
(4) Code--The Texas Natural Resources Code.
(5) Declared disaster--An event declared to be a disaster by the governor under §418.014, Texas Government Code.
(6) Fibercrete--Unreinforced concrete, consisting of a combination of pulped paper, or other cellulose-based raw material, and binders such as lime, cement, and/or clay in 4 feet by 4 feet sections, which shall be a maximum of four inches thick with sections separated by expansion joints.
(7) Habitable--The condition of the premises that permits the inhabitants to live free of serious hazards to health and safety.
(8) House--A single or multi-family structure that serves as permanent, temporary or occasional living quarters for one or more persons or families.
(9) Natural disaster--An event or force of nature that has catastrophic consequences, including, but not limited to, tropical storms, hurricanes, extreme high tides, tsunamis, earthquakes, tornadoes, and floods.
(10) Recovery dune restoration--Those response measures that must be undertaken during a recovery period to construct a dune, repair a damaged dune, or stabilize an existing dune in order to minimize further threat or damage to coastal residents and littoral property. A local government shall require persons restoring dunes to use dune vegetation that will achieve the same protective capability as natural dunes in the area.
(11) Recovery period--A period of time commencing with the issuance of a disaster recovery order under this section and ending with the expiration of the order, during which temporary standards for stabilization and repair of structures and dune restoration are in effect to assist a local government in restoring beach access and dune protection.
(12) Recovery repair--Those actions that must be undertaken to render a structure habitable or to prevent further damage during the recovery period. The term "recovery repair" does not include reconnecting a house to utilities such as sewer, water, and electricity. Reconnection to such utilities may only be made in accordance with other applicable law or local ordinances.
(13) Recovery stabilization--Those actions that must be undertaken to stabilize a residential structure that is subject to collapse or substantial further damage as a result of erosion or undermining caused by waves or currents of water exceeding normally anticipated cyclical levels during a period of recovery from a disaster.
(14) Restoration Area--With respect to a dune restoration project on the public beach, an area extending no more than 30 feet seaward of the post-storm landward boundary of the public beach.
(15) Shoreline protection project repairs--Those response measures that must be undertaken during a period of recovery from a disaster to restore an existing shoreline protection project to a condition that affords protection from subsequent storms or tidal events or prevents accelerated damage to littoral property.
(f) Recovery repair and recovery stabilization of structures on the public beach.
(1) A local government may issue a certificate or permit in accordance with this section for recovery repair and recovery stabilization of a structure that encroaches or may encroach on the public beach to the extent necessary to prevent an immediate threat to public health, safety, and welfare.
(2) A local government may authorize construction of an enclosed space with breakaway or louvered walls at ground level that is consistent with the local dune protection and beach access plan and National Flood Insurance Program, if the foundation of the structure is intact.
(3) A local government may grant authorization in accordance with this section for recovery repair of a residential structure that encroaches or may encroach on the public beach, but only if the structure is an eligible house under §15.11 of this title (relating to Repairs to Certain Houses Located Seaward of the Boundary of the Public Beach) and is not subject to a pending enforcement action under this subchapter, the Open Beaches Act (Texas Natural Resources Code, Chapter 61), or the Dune Protection Act (Texas Natural Resources Code, Chapter 63). An enforcement action includes the filing of a suit in district court or the referral of a matter for enforcement to the attorney general or other public prosecutor or the issuance of a citation by a local government for a violation of its dune protection and beach access plan.
(4) A local government may authorize the placement of beach-quality sand underneath the footprint of an eligible house and in the area up to a distance of not more than five feet from the structure's footprint where necessary to prevent further erosion due to wind or water. The beach-quality sand must remain loose and cannot be placed in bags.
(5) Clay or sandy clay may be placed to fill voids under the footprint of a residential structure seaward of the line of vegetation and beyond the footprint to the extent necessary to restore a natural angle of repose up to a distance of not more than five feet from the structure's footprint; provided, however, that clay or sandy clay used for this purpose must be covered with beach quality sand, where practicable, to a depth of at least 12 inches. Such actions are authorized in situations where protection of the land immediately seaward of a structure is required to prevent foreseeable undermining of habitable structures in the event of such erosion.
(6) A local government may authorize the use of clay or sandy clay to fill voids in order to protect public infrastructure; provided, however, that clay or sandy clay sand used for this purpose must be covered with beach quality sand, where practicable, to a depth of at least 12 inches.
(7) Beach-quality sand, clay, or sandy clay must not be placed seaward of mean high tide without the consent of the commissioner.
(g) Authorized recovery dune restoration.
(1) A local government may issue a certificate or permit for persons to construct clay core dunes and dunes created solely with beach quality sand landward of the public beach and seaward of the boundary of the public beach in the restoration area. A local government shall ensure that the restoration area shall follow the natural meander or migration of the post-storm boundary of the public beach. A local government may issue permits and certification to allow the restoration of dunes on the public beach only under the following conditions:
(A) Restored dunes may be located farther seaward than the restoration area only to the limited extent necessary to minimize further damage to coastal residents and littoral property, provided such dunes shall not substantially restrict or interfere with the public use of the beach at normal high tide.
(B) A local government shall not allow any person to restore dunes, even within the restoration area, if such dunes would effectively prohibit access to or use of the public beach at normal high tide.
(2) Under no circumstances may sand or other materials be placed below mean high tide without the consent of the commissioner.
(h) Authorized methods and materials for recovery dune restoration. A local government may allow the following methods or materials for recovery dune restoration:
(1) Dune restoration methods or materials allowed in §15.7(e)(6) of this title (relating to Local Government Management of the Public Beach);
(2) Clay core dunes; provided, that clay or sandy clay used for this purpose must be covered with beach-quality sand, to a depth of at least 24 inches, and such sand cover must be maintained; provided, if clay is exposed, it must be recovered with sand to maintain the minimum 24-inch cover; and
(3) Recovery dunes constructed under this section must not:
(A) result in increased flooding to the site or adjacent property;
(B) aggravate erosion;
(C) result in adverse effects to dune hydrology;
(D) increase the vulnerability to washouts or blowouts; or
(E) interfere with the public's access to the beach at normal high tide.
(i) Review of dune protection line. A local government having the authority to set the dune protection line shall review the dune protection line within one year from the date of the disaster recovery order issued under this section rather than 90 days required under §15.3(k) of this title. All other requirements of §15.3(k) of this title shall apply.
(j) Authorized beach access and dune protection measures.
(1) If a local beach access and dune protection plan includes a variance that permits the use of fibercrete within 200 feet of the line of vegetation in an eroding area, under this section the landward toe of a restored dune may be used for determining the area in which the use of fibercrete is allowed as provided in the variance unless natural dunes form further landward. In eroding areas where there is no dune or the dune has been obliterated by the disaster that precipitated the order, the provisions of §15.6(f)(3) of this title (relating to Concurrent Dune Protection and Beachfront Construction Standards) apply until a restored dune has been established in the area as determined by a local government.
(2) If a local beach access and dune protection plan includes a variance that permits the use of fibercrete within 200 feet of the line of vegetation in an eroding area, the local government may allow construction underneath, outside, or around the house that includes fibercrete or other materials necessary to restore reasonable access to a house for disabled persons; provided that such access existed prior to the disaster that is the subject of an order under this section. This provision also applies to a house that has become located on the beach or where there is no dune.
(3) A local government may provide temporary access to beaches from off-beach parking areas by directing the public to the nearest existing pathways to minimize the effects on dunes and dune vegetation until dunes and walkovers are re-established or rebuilt. Temporary pathways shall be conspicuously marked as beach access paths.
(4) A local government may, without a plan amendment, temporarily close beach access points damaged beyond repair or temporarily blocked by emergency shore protection projects to prevent damage to infrastructure. In order to comply with this rule a local government must notify the commissioner of the temporary closure of such damaged beach access point within 10 calendar days and specify the duration of the closure. The local government must ensure that the period of limited beach access in that area does not exceed the duration of the disaster recovery order and must submit to the commissioner a timeline for amending the local plan or a remedy to restore access no later than six months prior to the expiration of the disaster recovery order issued under this section.
(k) Shoreline protection project repairs. Notwithstanding the general prohibition on maintaining or repairing erosion response structures in §15.6(d) of this title, a local government may authorize repairs to an existing shoreline protection project, subject to the following limitations:
(1) Repairs to existing shoreline protection projects may be permitted to minimize further damage to coastal residences and littoral property, provided the existing shoreline protection project does not substantially restrict or interfere with the public use and access of the beach at normal high tide;
(2) A local government shall not authorize any person to repair a shoreline protection project that is located below mean high water; and
(3) The existing shoreline protection project must conform to the policies of the Coastal Coordination Council promulgated in §501.26(b) of this title (relating to Policies for Construction in the Beach/Dune System).
(l) Prohibition on certain materials. A local government shall not allow any person to undertake dune restoration projects or temporary shoreline protection projects using any of the following methods or materials:
(1) Materials such as bulkheads, riprap, concrete (including sprayed concrete), or asphalt rubble, building construction materials, and any non-biodegradable items;
(2) Sediments containing the hazardous substances listed in Appendix A to §302.4 in Volume 40 of the Code of Federal Regulations, Part 302 in concentrations which are harmful to people, flora, and fauna as determined by applicable, relevant, and appropriate requirements for toxicity standards established by the local, state, and federal governments; or
(3) Sand obtained by scraping or grading dunes, or from beaches in eroding areas.
(m) Repair of sewage or septic systems. If the Texas Commission on Environmental Quality or its designated local authority, the Texas Department of State Health Services, or a local health department has made a determination that a sewage or septic system located on or adjacent to the public beach poses a threat to the health of the occupants of the property or public health, safety or welfare, and requires removal of the sewage or septic system, the sewage or septic system shall be located in accordance with §15.5(b)(1) of this title (relating to Beachfront Construction Standards) and §15.6(b) and (e)(1) of this title.
(n) Authorized beach maintenance practices. If a material change in conditions occurs, such as significant beach erosion caused by a declared or natural disaster, the commissioner may require a local government affected by an order issued under this section to suspend the authority of a permittee to scrape a beach under a previously issued beach maintenance permit. The local government may require a permittee to obtain a new permit incorporating beach maintenance practices consistent with the changed conditions. The commissioner shall be given an opportunity to comment on any such new permit application
(o) Removal of beach debris. A local government or other authorized governmental entity with the duty to clean, maintain and clear debris from the public beach as provided by law shall coordinate with property owners to remove debris, including, but not limited to, pilings, concrete, fibercrete, pavers, and garbage from the public beach as soon as possible to minimize the threat of damage to public health, safety, welfare, and property.
(p) GLO review. A local government shall submit the certificate or permit applications for recovery repair, recovery repair, recovery dune restoration, or any other activity authorized under this section to the commissioner for review. If the commissioner does not object to or otherwise comment on the application within ten working days of receipt of an application, the local government may act on the application. Local governments shall require that all permit and certificate applicants fully disclose in the application all items and information necessary for the local government to make a determination regarding a permit or certificate for repairs. Local governments may require more information, but the following information shall be submitted to the GLO:
(1) the name, address, phone number, and, if applicable, fax number or electronic mail address of the applicant, and the name of the property owner, if different from the applicant;
(2) a complete legal description of the tract and a statement of its size in acres or square feet including the location of the property lines and a notation of the legal description of adjoining tracts;
(3) the floor plan, footprint or elevation view of the house identifying the proposed repairs;
(4) photographs of the site which clearly show the current conditions of the site; and
(5) an accurate map, site plan, plat or drawing of the site identifying:
(A) the site by its legal description, including, where applicable, the subdivision, block, and lot;
(B) the location of the property lines and a notation of the legal description of adjoining tracts, and the location of any roadways, driveways and landscaping that currently exist on the tract;
(C) the location of any seawalls or any other erosion response structures on the tract and on the properties immediately adjacent to the tract;
(D) the location of the house and the distance between the house and mean high tide, and the natural line of vegetation;
(E) if known, the location and extent of any man-made vegetated mounds, restored dunes, fill activities, or any other pre-existing human modifications on the tract; and
(F) if the proposed action includes a recovery dune restoration project, grading and layout plan identifying all elevations (in reference to the National Oceanic and Atmospheric Administration datum), existing contours of the project area (including the location of dunes and swales), and proposed contours for final grade.
(6) the source of any sand and vegetation used for a recovery dune restoration project; and
(7) any other information requested by the local government or the GLO that is necessary to determine whether the application is consistent with this section.
(q) Monitoring. A local government is responsible for monitoring a recovery stabilization, recovery repair, recovery dune restoration project, or shoreline protection project repair under this section. A local government may conduct a monitoring program to study the effects of such projects on the public's access to and use of the public beach. Expenses related to the monitoring program are considered beach-related services for the purpose of this subchapter.
(r) Effect on actions for removal. This section does not create a property right of any kind in the littoral property owner. Houses eligible for repairs to maintain habitability under this section may also be encroachments on and interferences with the public beach easement. Except as provided in an unexpired temporary order issued by the commissioner under §61.0185 of the Texas Natural Resources Code, the commissioner, the attorney general, a county attorney, district attorney, or criminal district attorney may file suit under Texas Natural Resources Code §61.018(a) to obtain a temporary or permanent injunction, either prohibitory or mandatory, to remove a house from the public beach without regard to whether the house is eligible for repairs under this section.
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 February 2, 2009.
TRD-200900379
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs
General Land Office
Earliest possible date of adoption: March 15, 2009
For further information, please call: (512) 475-1859