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HomeMy WebLinkAbout024778 ORD - 02/19/2002 AN ORDINANCE AMENDING ORDINANCE NO. 022164, WHICH ADOPTED THE CITY OF CORPUS CHRISTI, TEXAS DUNE PROTECTION AND BEACH ACCESS REGULATIONS, BY UPDATING AND REVISING APPENDICES I, INDUSTRIAL USES PERMITTED/NOT PERMITTED, IV, FLOW CHART OF APPLICATION PROCESS FOR MASTER PLANNED DEVELOPMENTS, V, FLOW CHART FOR APPLICATION PROCESS FOR DUNE PROTECTION PERMIT OR BEACHFRONT CONSTRUCTION CERTIFICATE, VI, DESIGNATION OF ACCESS WAYS, PARKING AREAS, AND BEACHES CLOSED TO MOTOR VEHICLES, VII, DESIGNATED BEACH FEE AREAS, VIII, INTERLOCAL AGREEMENT FOR BEACH MAINTENANCE WITH NUECES COUNTY, XI, 31 TAC 99 15.1-15.10 (COASTAL AREA PLANNING), XII, DUNE PROTECTION ACT, V.T.C.A., NATURAL RESOURCES CODE 9 61.001 ET SEQ., XIII, OPEN BEACHES ACT, V.T.C.A., NATURAL RESOURCES CODE ~ 63.001 ET SEQ., XIV, FOUNDING POLICIES, AND ADDING APPENDIX XV, PACKERY CHANNEL DESIGN CONCEPT AND APPENDIX XVI, PACKERY CHANNEL PUBLIC & ENVIRONMENTAL FACILITIES; PROVIDING AN EFFECTiVE DATE; PROVIDING FOR PENALTIES; PROVIDING FOR SEVERANCE; PROVIDING FOR PUBLICATION; AND DECLARING AN EMERGENCY WHEREAS, the City Council has determined that this amendment would best serve public health, necessity, and convenience and the genera! welfare of the City of Corpus Christi and its citizens. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the list of appendices In the table of contents of the Corpus Christi, Texas, Dune Protection and Beach Access Regulations, as adopted by Ordinance 022164, on February 28, 1995, and the list of appendices following the text of the sections of Chapter 10, Code of Ordinances, is amended by revising Hle descriptions of Appendices VIII and XI and by adding a description of a new Appendix XV and Appendix XVI to read as follows: - "APPENDICES "Appendix I "Appendix II "Appendix III Industrial Uses Permitted/Not Permitted Dune Protection Line Beachfront Construction Line, Erosion Area Restriction Line, Erosion Area Line. "Appendix IV Flow Chart of Application Process for Master Planned Developments 024778 n D II'" "Appendix V "Appendix VI "Appendix VII "Appendix VIII "Appendix IX "Appendix X "Appendix XI "Appendix XII "Appendix XIII "Appendix XIV "Appendix XV "Appendix XVI 2 Flow Chart for Application Process for Dune Protection Permit or Beachfront Construction Certificate Designation of Access Ways, Parking Areas, and Beaches Closed to Motor Vehicles Designated Beach Fee Areas Interlocal Agreement fer 8eash MaiRteRaRse with Nlles9s CSllRty with in the City of Port Aransas and Nueces County relatina to the Mustana and North Padre Islands Beach Parkina Permit Svstem (Reserved) Interlocal Agreement for Dune Protection Act with Nueces County (Reserved) Interlocal Agreement for Dune Protection Act with Kleberg County 31 TAC ~~ 1&.1 1&.1031 Chapter 31 (Coastal Area Planning) Dune Protection Act, V.T.C.A., Natural Resources Code ~ 61.001 et seq. Open Beaches Act, V.T.C.A., Natural Resources Code ~ 63.001 et seq. Founding Policies Packerv Channel Desian Concept Packerv Channel Public & Environmental Facilities" SECTION 2. That Appendices I, IV, V, VI, VIII, XI, XII, and XIII of the Corpus Christi, Texas, Dune Protection and Beach Access Regulations, as adopted by Ordinance 022164 on February 28,1995, are amended by substituting the revised Appendices IV, V, VI, VIII, XI, XII, and XIII, which are attached to and incorporated into this ordinance as Attachments A-H. SECTION 3. That Appendix VII, Designated Beach Fee Areas, Corpus Christi, Texas, Dune Protection and Beach Access Regulations, originally adopted by Ordinance 022164 on February 28,1995, and amended by Ordinance 024733, on January 15, 2002, is amended by substituting the revised Appendix VII, which is attached to and incorporated into this ordinance as Attachment I. SECTION 4. That the Local Action Policies in Appendix XIV, Founding Policies, Corpus Christi, Texas, Dune Protection and Beach Access Regulations, originally adopted by R24012D3.doc .. u ..,.. 3 Ordinance 022164 on February 28, 1995, is amended by adding a new Local Action Policy 10 to read as follows: "APPENDIX XIV FOUNDING POLICIES "The regulations promulgated herein are based partially on the Comprehensive Plan including but not limited to the following policies: . . . . . "LOCAL ACTION POLICIES "10. The Citv will oursue reooenina and imorovement of "Packerv Channel" for the ouroose of orovidina a recreational boat oass and enhanced water exchanae to the Laauna Madre from the Gulf of Mexico (See Fiaure 1.A). The oroiect will orovide areativ imoroved recreational facilities, economic develooment ootential on adiacent oublic and orivate lands. Sianificantlv. the oroiect will orovide renourishment to the beach in front of the Seawall immediatelv and in the future from maintenance dredaina. (The oroiect is officiallv a Federal action and known as the North Padre Island Storm Damaae Reduction and Environmental Restoration Proiect.) The Packerv Channel Proiect. when comoleted. will orovide a world-class multiouroose develooment uniaue to the Texas Coast with the ootential to attract tourists from all over the state and nation. The oroiect is consistent with John F. Kennedv Causewav Recreation Area Master Plan Studv adooted bv the Texas General Land Office in 1990." . . . . . SECTION 5. That the Corpus Christi, Texas, Dune Protection and Beach Access Regulations, originally adopted by Ordinance 022164 on February 28,1995, is amended by adding a new Appendix XV, Packery Channel Design Concept, which is attached to and incorporated into this ordinance as Attachment J. SECTION 6. That the Corpus Christi, Texas, Dune Protection and Beach Access Regulations, originally adopted by Ordinance 022164 on February 28, 1995, is amended by adding a new Appendix XVI, Packery Channel Public & Environmental Facilities, which is attached to and incorporated into this ordinance as Attachment K. SECTION 7. This ordinance goes into effect upon approval of these amendments to the Corpus Christi, Texas, Dune Protection and Beach Access Regulations, by the General Land Office under 315.8(e) of Title 31 of the Texas Administrative Code. SECTION 8. A violation of this ordinance or requirements implemented hereunder shall constitute an offense, punishable as provided in Section 1-6 of the City Code of Ordinances. SECTION 9. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by final R24012D3.doc . . . .- 4 judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word, or provision of this ordinance, for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision of this ordinance be given full force and effect for its purpose. SECTION 10. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. SECTION 11. That upon written request of the Mayor or five Council members, copy attached, the City Council (1) finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs and (2) suspends the Charter rule that requires consideration of and voting upon ordinances at two regular meetings so that this ordinance is passed and takes effect upon Irst reading as an emergency measure on this the ~ay of I\.; ,2002. A~ ":r ando Chapa City Secretary Samuel L. Neal, Jr. Mayor APPROVED: This 15th day of February, 2002: James R. Bray, Jr. City Attorney By: ~~ R. J Y eining First Assistant City Attorney R24012D3.doc ~.----g--- . I" 5 Corpus Christi, Texas \crh'day of ruJ.'\,Wl,~002 TO THE MEMBERS OF u4E CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: I/we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, ~-~~ ~amuel L. Ne ,Jr. Mayor Council Members The above ordinance was passed by the following vote: Samuel L. Neal, Jr. Brent Chesney Javier D. Colmenero Henry Garrett Bill Kelly Rex A. Kinnison John Longoria Jesse Noyola Mark Scott R24012D3.doc . 'I r B o 21 'i'i 8 .,.. APPENDIX I INDUSTRIAL USES PERMITTED/NOT PERMITTED (NOTE: This appendix reproduces a COpy of Appendix 1 to Chapter 15. Title 31 Texas Administrative Code. as effective on February 1. 2002. It is provided for reference only. Revised versions of Appendix 1 to Chapter 15.31 Texas Administrative Code. may be substituted without further action by the City Cou nci I.) A local government is not authorized to issue a permit or certificate authorizing construction or operation of the industrial facilities listed in this appendix within critical dune areas or seaward of a dune protection line, as provided in !l15.4(c)(5) of this title (relating to Dune Protection Standards), with the exception of activities in Part 1, Division D, Major Group 20, Industry Group 209, Industry Numbers 2091 and 2092, as provided in the definition of "industrial facilities" in !l15.2 of this title (relating to Definitions). This appendix is taken from the Standard Industrial Classification Manual as adopted by the Executive Office of the President, Office of Management and Budget (1987 ed.). DIVISION D. MANUFACTURING Major Group 20. Major Group 21. Major Group 22. Major Group 23. Major Group 24. Major Group 25. Major Group 26. Major Group 27. Major Group 28. Major Group 29. Major Group 30. Major Group 31. Major Group 32. Major Group 33. Major Group 34. Major Group 35. Major Group 36. Major Group 37. R24012D3.doc . .. . Food and kindred products, except Industry Numbers 2091 and 2092 Tobacco products Textile mill products Apparel and other finished products made from fabrics and similar materials Lumber and wood products, except furniture Furniture and fixtures Paper and ailied products Printing, publishing, and allied industries Chemicals and allied products Petroleum refining and related industries Rubber and miscellaneous plastics products Leather and leather products Stone, clay, glass, and concrete products Primary metal industries Fabricated metal products, except machinery and transportation equipment Industrial and commercial machinery and computer equipment Electronic and other electrical equipment and components, except computer equipment Transportation equipment ATTACHMENT A --1 w -_~"""'" Major Group 38. Measuring, analyzing, and controlling instruments; photographic, medical and optical goods; watches and clocks Major Group 39. Miscellaneous manufacturing industries DIVISION E. TRANSPORTATION, COM- MUNICATIONS, ELECTRIC, GAS, AND SANITARY SERVICES Major Group 49. Sanitary services (sewerage systems, refuse systems, sanitary services not elsewhere classified) MISCELLANEOUS FOOD PREPARATIONS AND KINDRED PRODUCTS Industrial facilities listed in Industry Number 2091 are not considered "industrial facilities" as defined in 9 15.2 of this title (relating to Definitions). 2091 Canned and Cured Fish and Seafoods Establishments primarily engaged in cooking and canning fish, shrimp, oysters, clams, crabs, and other seafoods, including soups; and those engaged in smoking, salting, drying, or otherwise curing fish and other seafoods for the trade. Establishments primarily engaged in shucking and packing fresh oysters in nonsealed containers, or in freezing or preparing fresh fish, are classified in Industry 2092. -- Canned fish, crustacea, and mollusks -- Caviar, canned -- Chowder, fish and seafood: canned -- Clam bouillon, broth, chowder, juice: bottled or canned -- Codfish: smoked, salted, dried and pickled -- Crab meat, canned and cured Finnan haddie (smoked haddock) Fish and seafood cakes: canned -- Fish egg bait, canned -- Fish, canned and cured -- Fish: cured, dried, pickled, salted, and smoked -- Herring; smoked, salted, dried, and pickled -- Mackerel: smoked, salted, dried, and pickled -- Oysters, canned and cured -- Salmon: smoked, salted, dried, canned, and pickled -- Sardines, canned R24012D3.doc ATTACHMENT A -- 2 . . - Seafood products, canned and cured Shellfish, canned and cured Shrimp, canned and cured -- Soups, fish and seafood: canned -- Stews, fish and seafood: canned -- Tuna fish, canned MISCELLANEOUS FOOD PREPARATIONS AND KINDRED PRODUCTS Industrial facilities listed in Industry Number 2092 are not considered "industrial facilities" as defined in S 15.2 of this title (relating to Definitions). 2092 Prepared Fresh or Frozen Fish and Seafoods Establishments primarily engaged in preparing fresh and raw or cooked frozen fish and other seafoods and seafood preparations, such as soups, stews, chowders, fishcakes, crabcakes, and shrimpcakes. Prepared fresh fish are eviscerated or processed by removal of heads, fins, or scales. This industry also includes establishments primarily engaged in the shucking and packing of fresh oysters in nonsealed containers. -- Chowders, fish and seafood: frozen Crabcakes, ITozen Crabmeat picking -- Crabmeat, fresh: packed in nonsealed containers Fish andseafood cakes, frozen Fish Fillets Fish sticks Fish: fresh and frozen, prepared -- Oysters, fresh: shucking and packing in non- sealed containers Seafoods, fresh and frozen Shellfish, fresh and frozen Shellfish, fresh: shucked, picked, or packed Shrimp, fresh and frozen Soups, fish and seafood: frozen -- Stews, fish and seafood: frozen R24012D3.doc ATTACHMENT A -- 3 . u .... APPENDIX IV FLOW CHART OF APPLICATION PROCESS FOR MASTER PLANNED DEVELOPMENTS Pre-submission Conference I Application Incomplete I 1 Full application submitted to the I Planning Department ~ Planning Department: 1. Determines application complete; 2. Schedules Planning Commission meeting; and 3. Advises applicant of Items 1 and 2. 5 werle/no days ~ Planning Department forwards to General Land Office and Office of Attorney General: 1. Completed application; and 2. Preliminary detennination. 10 work/no davs .. Planning Department receives GLO/OAG oomments if any. 10 - 15 worldna days ... Planning Department forwards to Beach I Dune Committee 1. Complete Application; 2. City Staff Recommendation; and 3. State agency comments If any. 1D-15worlcinadavs . Planning Commission makes a recommendation. 10 - 20 worldna dayS ~ City Coundllakes adion on an ordinance. 15 - 20 worlelno dlJVS .. City submIts approved ordinance to GLO/OAG for Approval. 20 - 80 worldna dayS I Approval Process 80 to 145 total working days R24012D3.doc ATTACHMENT B -- 1 .. . - APPENDIX V FLOW CHART FOR APPLICATION PROCESS FOR DUNE PROTECTION PERMIT OR BEACHFRONT CONSTRUCTION CERTIFICATE R24012D3.doc ATTACHMENT C -- 1 . u 1r APPENDIX VA BEACH FRONT CONSTRUCTION CERTIFICATE APPLICATION PROCESS - SHORT FORM 1 Application Pre-submisslon Incomplete I I Conferenoe I ~ r Applicant Submits Completed Short Form Does not:qualifyfrirSl'lort I Director of Planning Determines if application Is Form Process complete +No Director of Planning Determines if Proposed Construction: 3, Is seaward of the erosion area line, erosion area restriction line, or located on an existing or designated future beach access!' Yes 1 No 1. Functionally supports or depends on, or otherwise relates to proposed or existing structures that encroach on the public beach? r Yes 1 No 2. If within 200 feet landward of the vegetation line, and Includes a retaining wall or Impervious surface? 5 workino davs to BnSW8r Questions 1 thru 3 Yes If! thru 3 are If I thru 3 are Nq I.. Otl~c;tinnnhlp Submit application and preliminary Submit application and determlnatron to GLOIOAG preliminary determination to 10 work/no davs GLOIOAG 10 workino davs .. ~ BeachIDune I Certificate Issued I Committee determines If anyone of 5 workino davs if 1 thru 3 above are questions 1 thu 3 NO, is YES ~ 5-10 workino davs I Copy to GLOIOAG Certificate Issued 5 worl<ino davs Short Form Application Applicant required to submit . Denied r full appllcatlort (See Appendix 5 workina days V,c) Copy to I GLO/OAG r I Copy to I GLOIOAG I Approval Process 5 to 30 Working Days I R24012D3,doc ,. .. . ATTACHMENT C -- 2 APPENDIX V.B PRELIMINARY DETERMINATION IF DUNE PROTECTION PERMIT REQUIRED Pre--submission COnference Applicant submits description of proposed constructton DIrector of the Planning Department determines W proposed constructton : 1. 1s landward of the Dune ProtecUon Une Yes Permit not requirecL No Yes Perrnltnot required~ 2. Is an exempted use? Yes No 3. Is a prohibited use? No 4. Adversely affects critical dunes or dune vegetation? 5 worldna clavs to answer Questions 1 - 4 Letter of findings to GLO/OAG. No Yes Questionable Letter of findings to GLO I OAG. Beach I Dune Committee detennlnes if it adversely affects critical dunes or dune vegetation 10 - 15 w {no daYS If yes, pennit required. If no, permit not required. Applicant required to submit Full ApplicatIon ADPendix V.c Letter of findings to GLO I OAG. Approval Pr()(;esB 5 to 20 Working Days RZ4012D3.doc ATTACHMENT C -- 3 - - R24012D3.doc . u APPENDIX V.C PROCESS FOR FULL APPLICATION BEACHFRONT CONSTRUCTION CERTIFICATE AND I OR DUNE PROTECTION PERMIT Proposed.Cooslructlon will require full appUcatlon as described within Regulations. Full application submitted to Planning Department Planning Department: 1. Determines appllcation complete; 2. Schedules Beach/Dune Committee meeting; and 3. Advises applicant of Items 1 and 2. 5 worlcina days Planning Department forwards to General Land Office and Office of Attorney General: 1. Completed application; and 2. Preliminary detennination. 5 workino days Planning Department receives GLOIOAG comments if any. 10 - 15 workina days Planning Department forwards to Beach I Dune Committee 1. Complete Application; 2. City Staff ReoommendaUon; and 3. State agency comments if any. Beach I Dune Committee takes action 10 . 15 workina days Copy to GLOJOAG I Approval Process 30 to 40 Working Days I ATTACHMENT C -- 4 ,,~ APPENDIX VI DESIGNATION OF ACCESS WAYS, PARKING AREAS, AND BEACHES CLOSED TO MOTOR VEHICLES '......... '., " // l': ,.. , :/ ",' ~./ .1/ ," ~/ , , , :,1 ,../ ,.. " ,.. , ,i// , , , ;// , /,l , , , , , , , , , , ,:/ :,l' " , , , , ,.. , " ,J': J: <J,~/ , , , ,.. " ,.. , ,,11 " Berry'~ Ingl ' / On- T~e-B.8g .. CiI',\.JIW'l"" 8tdl.cwsRClllIft Corpus Christi Bay ~~8Hdi_ ...."---Pmecl!G'~v.itl _~k8et<i ...... jJCitY of _ _Corpus :::::;"":Christi R24012D3.doc 'II . , , ,.. , , :' , , " , , ,.. :' , , ,.. : , , : " " , : , : : , , , -J'/ ~;/ ,f/ ,Il ....r;/' ~: ~, J/ .1/ APPENDIX VI Inventory of :Pulic Access Ways, Parking Are.l~, & Beaches Closed to Motor:'V ehicles :/ , , , , : , : , : , II : WHY 05FEB02 of Co,p", C~'lstl, Plannl"'l nep"tmenf l' Q 2 s c. I. , . Gulf of Mexico II M I I.. ATTACHMENT D --1 - 11 APPENDIX VIII INTERLOCAL AGREEMENT~ FOR 8&.^.CIol MAINT&Nft.NCIi '.'l!ITIol ~IU&C&S COUNTY RELATING TO RECIPROCAL RECOGNITION OF BEACH PARKING PERMITS OR UNIFIED PARKING PERMIT PROGRAMS WITH CITY OF PORT ARANSAS. NUECES COUNTY. AND KLEBERG COUNTY (RESERVED) R24D12D3.doc ATTACHMENT E --1 . ~ APPENDIX XI 31 TAC CHAPTER 31 (COASTAL AREA PLANNING) (NOTE: This appendix reproduces a copy of Chapter 31, Title 31 Texas Administrative Code, as effective on February 1, 2002. It is provided for reference only. Revised versions of Chapter 63 may be substituted without further action by the City Council.) TITLE 31. NATURAL RESOURCES AND CONSERVATION PART 1. GENERAL LAND OFFICE CHAPTER 15. COASTAL AREA PLANNING SUBCHAPTER A. MANAGEMENT OF THE BEACHIDUNE SYSTEM ~ 15.1. Policy The General Land Office has identified the following goals as a basis for managing and regulating human impacts on the beach/dune system: (1) to assist coastal citizens and local governments in protecting public health and safety and in protecting, preserving, restoring, and enhancing coastal natural resources including barrier islands and peninsulas, mainland areas bordering the Gulf of Mexico, and the floodplains, beaches, and dunes located there; (2) to aid coastal landowners and local governments in using beachfront property in a manner compatible with preserving public and private property, protecting the public's right to benefit from the protective and recreational functions of a healthy beach/dune system, conserving the environment, conserving flora and fauna and their habitat, ensuring public safety, and minimizing loss of life and property due to inappropriate coastal development and the destruction of protective coastal natural features; (3) to foster mutual respect between public and private property owners and to assist local governments in managing the Texas coast so that the interests of both the public and private landowners are protected; (4) to promote dune protection and ensure that adverse effects on dunes and dune vegetation are avoided whenever practicable. If such adverse effects cannot be avoided and have been minimized, every effort must be made to repair, restore, and rehabilitate existing dunes and dune vegetation; (5) to prevent the destruction and erosion of public beaches and other coastal public resources, to encourage the use of environmentally sound erosion response methods, and to discourage those methods such as rigid shorefront structures which can have a harmful impact on the environment and public and private property; (6) to aid communities located on barrier islands, peninsulas, and mainland areas bordering the Gulf of Mexico which are extremely vulnerable to flooding and property damage due to violent storms by working to reduce flood losses, by minimizing any waste of public funds in the National Flood Insurance Program, and by ensuring that the insurance remains available and affordable; (7) to protect the public's right of access to, use of, and enjoyment of the public beach and associated facilities and services as established by state common law and statutes. The public has vested property rights in Texas' public beaches, and free use of and access to and from the beaches are guaranteed. The Open Beaches Act requires local governments to preserve and enhance use of public beaches and access between the beaches and public roads. If an access point must be closed, then existing law requires it to be replaced with equal or better access R24012D3.doc ATTACHMENT F -- 1 - consistent with the appropriate local dune protection and beach access plan. Whenever practicable, local governments should enhance public beach use and access; (8) to provide coordinated, consistent, responsive, timely, and predictable governmental decision making and permitting processes; (9) to recognize that the beach/dune system contains resources of statewide vaiue and concern, which local governments are in the best position to manage on a daily basis. This subchapter is designed to provide local governments with the necessary tools for effective coastal management and are regarded as a minimum standard; local governments are encouraged to develop procedures that provide greater protection for the beach/dune system; and (10) to educate the public about coastal issues such as dune protection, beach access, erosion, and flood protection, and to provide for public participation in the protection of the beach/dune system and in the development and implementation of the Texas Coastal Management Program. Source: The provisions of this 9 15.1 adopted to be effective February 17, 1993, 18 TexReg 661. 9 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) Affect -- As used in this subchapter regarding dunes, dune vegetation, and the public beach, 'affect' means to produce an effect upon dunes, dune vegetation, or public beach use and access. (2) Amenities -- Any nonhabitable major structure including swimming pools, bathhouses, detached garages, cabanas, pipelines, piers, canals, lakes, ditches, artificial runoff channels and other water retention structures, roads, streets, highways, parking areas and other paved areas (exceeding 144 square feet in area), underground storage tanks, and similar structures. (3) Applicant -- Any person applying to a local government for a permit and/or certificate for any construction or development plan. (4) Backdunes -- The dunes located landward of the foredune ridge which are usually well vegetated but may also be unvegetated and migratory. These dunes supply sediment to the beach after the foredunes and the foredune ridge have been destroyed by natural or human activities. (5) Beach access -- The right to use and enjoy the public beach, including the right of free and unrestricted ingress and egress to and from the public beach. (6) BeachlDune Rules -- 31 TAC 99 15.1 - 15.10. (7) Beach/dune system -- The land from the line of mean iow tide of the Gulf of Mexico to the landward limit of dune formation. (8) Beachfront construction certificate or certificate -- The document issued by a local government that certifies that the proposed construction either is consistent with the local government's dune protection and beach access plan or is inconsistent with the local government's dune protection and beach access plan. In the latter case, the local government must specify how the construction is inconsistent with the plan, as required by the Open Beaches Act, 9 61.015. R24012D3.doc ATTACHMENT F -- 2 . - - (9) Beach maintenance -- The cleaning or removal of debris from the beach by handpicking, raking, or mechanical means. (10) Beach profile -- The shape and elevation of the beach as determined by surveying a cross section of the beach. (11) Beach-related services -- Reasonable and necessary services and facilities directly related to the public beach which are provided to the public to ensure safe use of and access to and from the public beach, such as vehicular controls, management, and parking (including acquisition and maintenance of off-beach parking and access ways); sanitation and litter control; lifeguarding and lifesaving; beach maintenance; law enforcement; beach nourishment projects; beach/dune system education; beach/dune protection and restoration projects; providing public facilities such as restrooms, showers, lockers, equipment rentals, and picnic areas; recreational and refreshment facilities; liability insurance; and staff and personnel necessary to provide beach- related services. Beach-related services and facilities shall serve only those areas on or immediately adjacent to the public beach. (12) Beach user fee -- A fee collected by a local government in order to establish and maintain beach-related services and facilities for the preservation and enhancement of access to and from and safe and healthy use of public beaches by the public. (13) Blowout -- A breach in the dunes caused by wind erosion. (14) Breach -- A break or gap in the continuity of a dune caused by wind or water. (15) Bulkhead -- A structure or partition built to retain or prevent the sliding of land. A secondary purpose is to protect the upland against damage from wave action. (16) Coastal and shore protection project -- A project designed to slow shoreline erosion or enhance shoreline stabilization, including, but not limited to, erosion response structures, beach nourishment, sediment bypassing, construction of man-made vegetated mounds, and dune revegetation. (17) Commercial facility -- Any structure used for providing, distributing, and selling goods or services in commerce including, but not limited to, hotels, restaurants, bars, rental operations, and rental properties. (18) Construction -- Causing or carrying out any building, bulkheading, filling, clearing, excavation, or substantial improvement to land or the size of any structure. 'Building' includes, but is not limited to, all related site work and placement of construction materials on the site. 'Filling' includes, but is not limited to, disposal of dredged materials. 'Excavation' includes, but is not limited to, removal or alteration of dunes and dune vegetation and scraping, grading, or dredging a site. 'Substantial improvements to land or the size of any structure' include, but are not limited to, creation of vehicular or pedestrian trails, landscape work (that adversely affects dunes or dune vegetation), and increasing the size of any structure. (19) Coppice mounds -- The initial stages of dune growth formed as sand accumulates on the downwind side of plants and other obstructions on or immediately adjacent to the beach seaward of the foredunes. Coppice mounds may be unvegetated. (20) Critical dune areas -- Those portions of the beach/dune system as designated by the General Land Office that are located within 1,000 feet of mean high tide of the Gulf of Mexico that contain dunes and dune complexes that are essential to the protection of public beaches, submerged land, and state- owned land, such as public roads and coastal public lands, from nuisance, erosion, storm surge, and high wind and waves. Critical dune areas include, but are not R24012D3.doc ATTACHMENT F -- 3 ,. - limited to, the dunes that store sand in the beach/dune system to replenish eroding public beaches. (21) Cumulative impact -- The effect on beach use and access, on a critical dune area, or an area seaward of the dune protection line which results from the incrementai effect of an action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time. (22) Dedication -- Includes, but is not limited to, a restrictive covenant, permanent easement, and fee simple donation. (23) Dune -- An emergent mound, hill, or ridge of sand, either bare or vegetated, located on land bordering the waters of the Gulf of Mexico. Dunes are naturally formed by the windward transport of sediment, but can also be created via man-made vegetated mounds. Natural dunes are usually found adjacent to the uppermost limit of wave action and are usually marked by an abrupt change in slope landward of the dry beach. The term includes coppice mounds, foredunes, dunes comprising the foredune ridge, backdunes, and man-made vegetated mounds. (24) Dune complex or dune area -- Any emergent area adjacent to the waters of the Gulf of Mexico in which several types of dunes are found or in which dunes have been established by proper management of the area. In some portions of the Texas coast, dune complexes contain depressions known as swales. (25) Dune Protection Act -- Texas Natural Resources Code, S S 63.001, et seq. (26) Dune protection and beach access plan or plan -- A local government's legally enforceable program, policies, and procedures for protecting dunes and dune vegetation and for preserving and enhancing use of and access to and from public beaches, as required by the Dune Protection Act and the Open Beaches Act. (27) Dune protection line -- A line established by a county commissioners court or the governing body of a municipality for the purpose of preserving, at a minimum, all critical dune areas identified by the General Land Office pursuant to the Dune Protection Act, S 63.011, and S 15.3(1) of this title (relating to Administration). A municipality is not authorized to establish a dune protection line unless the authority to do so has been delegated to the municipality by the county in which the municipality is located. Such lines will be located no farther than 1,000 feet landward of the mean high tide of the Gulf of Mexico. (28) Dune protection permit or permit -- The document issued by a local government to authorize construction or other regulated activities in a specified location seaward of a dune protection line or within a critical dune area, as provided in the Texas Natural Resources Code, S 63.051. (29) Dune vegetation -- Flora indigenous to natural dune complexes, and growing on naturally- formed dunes or man-made vegetated mounds on the Texas coast and can include coastal grasses and herbaceous and woody plants. (30) Effect or effects -- 'Effects' include: direct effects -- those impacts on public beach use and access, on critical dune areas, or on dunes and dune vegetation seaward of a dune protection line which are caused by an action and occur at the same time and place; and indirect effects -- those impacts on beach use and access, on critical dune areas, or on dunes and dune vegetation seaward of a dune protection line which are caused by an action and are later in time or farther removed in distance than a direct effect, but are still reasonabiy foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density, or growth rate, and related effects on air and water and other natural RZ401 ZD3.doc ATTACHMENT F -- 4 . . ~ systems, including ecosystems. 'Effects' and 'impacts' as used in this subchapter are synonymous. 'Effects' may be ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. (31) Eroding area -- A portion of the shoreline which is experiencing an historical erosion rate of greater than two feet per year based on published data of the University of Texas at Austin, Bureau of Economic Geology. Local governments may establish an 'eroding area boundary' in beach/dune plans; this boundary shall be whichever distance landward of the line of vegetation is greater: 200 feet, or the distance determined by multiplying 50 years by the annual historical erosion rate (based on the most recent data published by the University of Texas at Austin, Bureau of Economic Geology). (32) Erosion -- The wearing away of land or the removal of beach and/or dune sediments by wave action, tidal currents, wave currents, drainage, or wind. Erosion includes, but is not limited to, horizontal recession and scour and can be induced or aggravated by human activities. (33) Erosion response structure -- A hard or rigid structure built for shoreline stabilization which includes, but is not limited to, a jetty, groin, breakwater, bulkhead, seawall, riprap, rubble mound, revetment, or the foundation of a structure which is the functional equivalent of these specified structures. (34) FEMA -- The United States Federal Emergency Management Agency. This agency administers the National Flood Insurance Program and publishes the official flood insurance rate maps. (35) Foredunes -- The first clearly distinguishable, usually vegetated, stabilized large dunes encountered landward of the Gulf of Mexico. On some portions of the Texas Gulf Coast, foredunes may also be large, unvegetated, and unstabilized. Although they may be large and continuous, foredunes are typically hummocky and discontinuous and may be interrupted by breaches and washover areas. Foredunes offer the first significant means of dissipating storm- generated wave and current energy issuing from the Gulf of Mexico. Because various heights and configurations of dunes may perform this function, no standardized physical description applies. Foredunes are distinguishable from surrounding dune types by their relative location and physical appearance. (36) Foredune ridge -- The high continuous line of dunes which are usually well vegetated and rise sharply landward of the foredune area but may also rise directly from a flat, wave-cut beach immediately after a storm. (37) Habitable structure perimeter or footprint -- The area of a lot covered by a structure used or usable for habitation. The habitable structure perimeter or footprint does not include incidental projecting eaves, balconies, ground-level paving, landscaping, open recreational facilities (for example, pools and tennis courts), or other similar features. (38) Habitable structures -- Structures suitable for human habitation including, but not limited to, single or multi-family residences, hotels, condominium buildings, and buildings for commercial purposes. Each building of a condominium regime is considered a separate habitable structure, but if a building is divided into apartments, then the entire building, not the individual apartments, is considered a single habitable structure. Additionally, a habitable structure includes porches, gazebos, and other attached improvements. (39) Industrial facilities -- Include, but are not limited to, those establishments listed in Part 1, Division D, Major Groups 20-39 and Part 1, Division E, Major Group 49 of the Standard Industrial Classification Manual as adopted by the Executive Office of the President, Office of Management RZ4012D3.doc ATTACHMENT F -- 5 . 'II . . -~ and Budget (1987 ed.). However, for the purposes of this subchapter, the establishments listed in Part 1, Division D, Major Group 20, Industry Group Number 209, Industry Numbers 2091 and 2092 are not considered 'industrial facilities' These establishments are listed in 'Appendix I' attached to this section. (40) Large-scale construction -- Construction activity greater than 5,000 square feet in area and habitable structures greater than two stories in height. Multiple-family habitable structures are typical of this type of construction. (41) Line of vegetation -- The extreme seaward boundary of natural vegetation which spreads continuously inland. The line of vegetation is typically used to determine the landward extent of the public beach. (42) Local government -- A municipality, county, any special purpose district, any unit of government, or any other political subdivision of the state. (43) Man-made vegetated mound -- A mound, hill, or ridge of sand created by the deliberate placement of sand or sand trapping devices including sand fences, trees, or brush and planted with dune vegetation. (44) Master plan -- A plan developed by the applicant in consultation with the General Land Office, the Office of the Attorney General, the applicant or applicants, and the local government, for the development of an area subject to the beach/dune rules, as identified in 915.3 of this title (relating to Administration). The master plan shall fully describe in narrative form the proposed development and all proposed land and water uses, and shall include maps, drawings, and tables, and other information, as needed. The master plan must, at a minimum, fully describe the general geology and geography of the site, land and water use intensities, size and location of all buildings, structures, and improvements, all vehicular and pedestrian access ways, and parking or storage facilities, location and design of utility systems, location and design of any erosion response structures, retaining walls, or stormwater treatment management systems, and the schedule for all construction activities described in the master plan. The master plan shall comply with the Open Beaches Act and the Dune Protection Act. The master plan shall provide for overall compliance with the beach/dune rules, but may vary from the specific standards, means and methods provided in the beach/dune rules if the degree of dune protection and the public's right to safe and healthy use of and access to and from the public beach are preserved. If all impacts to dunes, dune vegetation and public beach use and access are accurately identified, local governments shall not require permits or certificates for construction on the individual lots within the master plan area. Master plans are intended to provide a comprehensive option for planning along the Texas coast. (45) Material changes -- Changes in project design, construction materials, or construction methods or in the condition of the construction site which occur after an application is submitted to a local government or after the local government issues a permit or certificate. Material changes are those additional or unanticipated changes which have caused or will cause adverse effects on dunes, dune vegetation, or beach access and use, or exacerbation of erosion on or adjacent to the construction site. (46) Mitigation sequence -- The series of steps which must be taken if dunes and dune vegetation will be adversely affected. First, such adverse effects shall be avoided. Second, adverse effects shall be minimized. Third, the dunes and dune vegetation adversely affected shall be repaired, restored, or replaced. Fourth, the dunes and dune vegetation adversely affected shall be replaced or substituted to compensate for the adverse effects. (47) National Flood Insurance Act -- 42 United States Code, 994001, et seq. R24012D3.doc ATTACHMENT F -- 6 "-,-r-" I 11m (48) Natural resources -- Land, fish, wildlife, insects, biota, air, surface water, groundwater, plants, trees, habitat of flora and fauna, and other such resources. (49) Open Beaches Act -- Texas Natural Resources Code, 9961.001, et seq. (50) Owner or operator -- Any person owning, operating, or responsible for operating commercial or industrial facilities. (51) Permit or certificate condition -- A requirement or restriction in a permit or certificate necessary to assure protection of life, natural resources, property, and adequate beach use and access rights (consistent with the Dune Protection Act) which a permittee must satisfy in order to be in compliance with the permit or certificate. (52) Permittee -- Any person authorized to act under a permit or a certificate issued by a local government. (53) Person -- An individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, state, municipality, commission, political subdivision, or any international or interstate body or any other governmental entity. (54) Pipeline -- A tube or system of tubes used for the transportation of oil, gas, chemicals, fuels, water, sewerage, or other liquid, semi-liquid, or gaseous substances. (55) Practicable -- In determining what is practicable, local governments shall consider the effectiveness, scientific feasibility, and commercial availability of the technology or technique. Local governments shall also consider the cost of the technology or technique. (56) Production and gathering facilities -- The equipment used to recover and move oil or gas from a well to a main pipeiine, or other point of delivery such as a tank battery, and to place such oil or gas into marketable condition. Included are pipelines used as gathering lines, pumps, tanks, separators, compressors, and associated equipment and roads. (57) Project area -- The portion of a site or sites which will be affected by proposed construction. (58) Public beach -- As used in this subchapter, 'public beach' is defined in the Texas Natural Resources Code, 961.013(c). (59) Recreational activity -- Includes, but is not limited to, hiking, sunbathing, and camping for less than 21 days. As used in 9 15.3(s)(2)(C) of this title (relating to Administration), recreational activities are limited to the private activities of the person owning the land and the social guests of the owner. Operation of recreational vehicles is not considered a recreational activity, whether private or public. (60) Recreational vehicle -- A dune buggy, marsh buggy, minibike, trail bike, jeep, or any other mechanized vehicle used for recreational purposes. (61) Restoration -- The process of constructing man-made vegetated mounds, repairing damaged dunes, or vegetating existing dunes. (62) Retaining wall -- A structure designed to contain or which primarily contains material or prevents the sliding of land. Retaining walls may collapse under the forces of normal wave activity . (63) Sand budget -- The amount of all sources of sediment, sediment traps, and transport of sediment within a defined area. From the sand budget, it is possible to determine whether R24012D3.doc ATTACHMENT F --7 II I - --r-'._'" fll"l1 sediment gains and losses are in balance. (64) Seawall -- An erosion response structure specifically designed to or which will withstand wave forces. (65) Seaward of a dune protection line -- The area between a dune protection line and the line of mean high tide. (66) Small-scale construction -- Construction activity less than or equal to 5,000 square feet and habitable structures less than or equal to two stories in height. Single-family habitable structures are typical of this type of construction. (67) Structure -- Includes, without limitation, any building or combination of related components constructed in an ordered scheme that constitutes a work or improvement constructed on or affixed to land. (68) Swales -- Low areas within a dune complex located in some portions of the Texas coast which function as natural rainwater collection areas and are an integral part of the dune complex. (69) Unique flora and fauna -- Endangered or threatened plant or animal species listed at 16 United States Code Annotated, ~ 1531, the Endangered Species Act of 1973, and/or the Parks and Wildlife Code, Chapter 68, or any plant or animal species that a local government has determined in their local beach/dune plan are rare or uncommon. (70) Washover areas -- Low areas that are adjacent to beaches and are inundated by waves and storm tides from the Gulf of Mexico. Washovers may be found in abandoned tidal channels or where foredunes are poorly developed or breached by storm tides and wind erosion. Source: The provisions of this ~ 15.2 adopted to be effective February 17,1993,18 TexReg 661; amended to be effective April 16, 1996,21 TexReg 3004. ~ 15.3. Administration (a) Integration of dune protection and beach access programs. The Dune Protection Act and the Open Beaches Act require certain local governments to adopt and implement programs for the preservation of dunes and the preservation and enhancement of use of and access to and from public beaches. These Acts provide for regulation of generally the same activities and the same geographic areas, and their requirements are scientifically and legally related. Local governments required to adopt dune protection and beach access programs shall integrate them into a single plan consisting of procedural and substantive requirements for management of the beach/dune system within their jurisdiction. The authority to integrate such plans is provided pursuant to the Dune Protection Act, the Open Beaches Act, and this subchapter. The local government plans shall be consistent with the requirements of the Open Beaches Act, the Dune Protection Act, and this subchapter, and each shall, whenever possible, incorporate the local government's ordinary land use planning procedures. (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 ~ 15.1 O(b) of this title (relating to General Provisions) and the Open Beaches Act, ~ 61.016 and ~ 61017. (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 R24012D3.doc ATTACHMENT F -- 8 '" w - 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, 961.011 (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, 961.015, 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) Critical dune areas and dune protection lines. The commissioner of the General Land Office, as trustee of the public lands of Texas, has the responsibility to identify and protect Texas' critical dune areas that are essential to the protection of coastal public land, public roads, public beaches, and other public resources. Local governments have the responsibility to establish dune protection lines for the purpose of preserving sand dunes within their jurisdiction. The Dune Protection Act, S 63.121 and 9 63.012, respectively, limits the geographic scope of critical dune areas and the location of the dune protection line to that portion of the beach within 1,000 feet of mean high tide of the Gulf of Mexico. (e) Identification of critical dune areas. Pursuant to the authority provided in the Dune Protection Act, S 63.121, the General Land Office has identified critical dune areas as all dunes and dune complexes located within 1,000 feet of mean high tide of the Gulf of Mexico. This identification is based on the determination that all of the various protective functions served by the dunes and dune complexes located within that 1 ,000 feet are essential to the protection of pubiic beaches, submerged land, and state-owned land, such as public roads and coastal public lands, from nuisance, erosion, storm surge, and high wind and waves. Critical dune areas are related to dune protection lines in that local governments are required to establish such lines for the purpose of preserving dunes in a location landward of all critical dune areas. Criteria for establishing dune protection lines shall, at a minimum, include the criteria for establishing critical dune areas in this subsection. (I) Establishment of dune protection lines. Pursuant to the authority provided in the Dune Protection Act, 9 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. A local government must conduct a field inspection to determine the appropriate 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) Deadline for establishment of dune protection lines. Local governments shall establish dune protection lines as part of the dune protection component of their local plans. The local plans shall be submitted to the state no later than 180 days after the effective date of this subchapter. Therefore, local governments shall establish dune protection lines no later than 180 days after this subchapter goes into effect. (h) Information required regarding dune protection lines. Local governments are required to submit the following information to the General Land Office to allow state evaluation of the adequacy of the dune protection line location: a map or drawing of the line; a written description of the line; or a written description and a map or drawing. This information shall be included in the local government's dune protection and beach access plan and must clearly designate for the public and the state the location of the line and the location of dunes seaward of the line. All maps, drawings, or descriptions shall incorporate sufficient elements of the Texas State Plane Coordinate System to enable such description to be located on the ground and shall be tied to and/or include the Texas State Plane Coordinates for two or more monumented points along any described boundary. Each local government shall file a map or drawing or description of its dune protection line with the clerk of the county or municipality establishing the line. (i) State assistance in the establishment of local government dune protection lines. The General Land Office may assist and advise local governments in establishing or modifying a dune protection line. R24012D3.doc ATTACHMENT F -- 9 II I -.-------r---..-. .. 11m Pursuant to the Dune Protection Act, S 63.013, local governments shall notify the General Land Office of the establishment of dune protection lines and any subsequent change in a line. Upon such notification, the General Land Office shall review the location of the line by examining the map or description of the line submitted to the state and by conducting field inspections, as necessary. The General Land Office will review the location of the line to determine whether the line meets the geographic standard of being located landward of all critical dune areas. If the General Land Office is satisfied that the line meets that geographic standard, the General Land Office will notify the local government of this finding in writing. If the line does not meet that geographic standard, the General Land Office will assist and advise the local government in adjusting the line. U) State review of dune protection line location. Each local government shall submit the information regarding the location of the dune protection line, as required in subsection (h) of this section, to the General Land Office as part of its dune protection and beach access plan. In determining whether to approve the local plan, the General Land Office will review the various components of the plan, including the adequacy of the location of a local government's dune protection line (with respect to the protection of critical dune areas), based on the geographic standards provided in subsection (i) of this section. (k) Local government review of dune protection line location. Each local government shall review its dune protection line every five years to determine whether the line is adequately located to achieve the purpose of preserving critical dune areas. In addition to the five-year review, each local government shall review the adequacy of the location of the line within 90 days after a tropical storm or hurricane affects the portion of the coast in its jurisdiction. (I) Provisions for public hearings on dune protection lines. Local governments shall provide notice of a public hearing to consider establishing or modifying a dune protection line by publishing such notice at least three times in the newspaper with the largest circulation in the county. The notice shall be published not less than one week nor more than three weeks before the date of the hearing. Notice shall be given to the General Land Office not less than one week nor more than three weeks before the hearing. In the notice to the General Land Office, local governments shall also include the information described in subsection (h) of this section. (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) Content of local government dune protection and beach access plans. Local government plans shall contain procedural mechanisms and substantive requirements necessary for compliance with this subchapter, the Dune Protection Act, and the Open Beaches Act. Local governments shall attach copies of this subchapter, the Dune Protection Act, and the Open Beaches Act to their plans, and their plans shall state that these state laws are incorporated into the plans. A local government shall also state in its plan that any person in violation of the incorporated state laws is in violation of its local plan. (0) Submission of local government plans to 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) A local government's governing body must formally approve the plan prior to submission to the state agencies. Prior to formally approving its plan, a local government may request legal and technical advice from the General Land Office for assistance in meeting the requirements for R24012D3.doc ATTACHMENT F -- 10 - 'W" state agency approval. (2) The General Land Office shall either grant or deny certification of a local government's formally approved dune protection and beach access plan within 60 days of receipt of the plan. 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) The General Land Office shall use the same procedure for reviewing revised or amended plans as the procedure used for reviewing the plan originally submitted. (4) The General Land Office's certification of local government plans shall be by adoption into the rules authorized under the Texas Natural Resources Code, S 61.011. The rules adopted by the General Land Office to certify plans will consist of state approval of the plans, but the text of plans will not be adopted by the General Land Office. (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) A local government may request General Land Office certification of a plan or a plan amendment that includes a variance regarding any requirement or prohibition of this chapter. (A) A local government requesting certification of a plan or a plan amendment containing a variance shall submit to the General Land Office a reasoned justification demonstrating how the variance will provide an equal or better level of protection or equal or better procedures than provided under this chapter. If the General Land Office determines that the reasoned justification for the variance is incomplete or inadequate, the General Land Office may return the request to the local government. (B) The General Land Office may certify a plan or a plan amendment containing a variance to the beach/dune rules if a local government demonstrates that the variance provision will advance the public interest and provide either or, where appropriate, both: (i) an equal or better level of protection of dunes, dune vegetation, and public access to and use of the public beach than provided under this chapter; or (ii) equal or better procedures for evaluating the impacts identified in an application for a permit or certificate on dunes, dune vegetation, and public access to and use of the public beach. (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 S 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) Areas exempt from local government plans. Local government dune protection and beach access R24012D3.doc ATTACHMENT F --11 '" w ___._n~<_+..,._._ ~.. plans shall not include the following areas, which are exempt from regulation by local governments: (1) national park areas, national wildlife refuges, or other designated national natural areas; (2) state park areas, state wildlife refuges, or other designated state natural areas; and (3) beaches on islands and peninsulas not accessible by public road or ferry facility for as long as that condition exists. (r) State-owned or public land not exempt from local government plans. Local government plans shall apply to all state-owned or public land other than parks and refuges, subject to the provisions of the Texas Natural Resources Code, S S 31.161, et seq. (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) Acts prohibited without a dune protection permit. Unless a dune protection permit is properly issued by a local government authorizing the conduct, no person shall: (A) damage, destroy, or remove a sand dune or a portion of a sand dune seaward of a dune protection line or within a critical dune area; or (B) kill, destroy, or remove in any manner any vegetation growing on a sand dune seaward of a dune protection line or within a critical dune area. (2) Activities exempt from permit requirements. Pursuant to the Dune Protection Act, S 63.052, the following activities are exempt from the requirement for a dune protection permit, but are subject to the requirements of the Open Beaches Act and the rules promulgated under the Open Beaches Act. Where local governments have separate authority to regulate the following activities, permittees shall comply with the local laws as well. The activities exempt from the permit requirements are: (A) exploration for and production of oil and gas and reasonable and necessary activities directly related to such exploration and production, including construction and maintenance of production and gathering facilities located in a critical dune area which serve wells located outside of a critical dune area, provided that such facilities are located no farther than two miles from the well being served; (B) grazing livestock and reasonable and necessary activities directly related to grazing; and (C) recreational activities other than operation of a recreational vehicie. (3) Acts prohibited without a beach front construction certificate. No person shall cause, engage in, or allow construction on 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 to within 1,000 feet of mean high tide, whichever is greater, that affects or may affect public use of and access to and from public beaches unless the construction is properly certified by the appropriate local government as consistent with its local plan, this subchapter, and the Open Beaches Act. R24012D3.doc ATTACHMENT F -- 12 '" .. (4) Permit and certificate application requirements. 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. Local governments may require more information, but they shall require that applicants for dune protection permits and beachfront construction certificates provide, at a minimum, the following items and information. (A) Permit application requirements for large-and small-scale construction. For all proposed construction, local governments shall require applicants to submit the following items and information: (i) the name, address, phone number, and, if applicable, fax number of the applicant, and the name of the property owner, if different from the applicant; (ii) a complete legal description of the tract and a statement of its size in acres or square feet; (iii) the number of proposed structures and whether the structures are amenities or habitable structures; (iv) the number of parking spaces; (v) the approximate percentage of existing and finished open spaces (those areas completely free of structures); (vi) the floor plan and eievation view of the structure proposed to be constructed or expanded; (vii) the approximate duration of the construction; (viii) a description (including location) of any existing or proposed walkways or dune walkovers on the tract; (ix) a 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; (x) photographs of the site which clearly show the current location of the vegetation line and the existing dunes on the tract; (xi) the effects of the proposed activity on the beach/dune system which cannot be avoided should the proposed activity be permitted, including, but not limited to, damage to dune vegetation, alteration of dune size and shape, and changes to dune hydrology; (xii) a comprehensive mitigation plan which includes a detailed description of the methods which will be used to avoid, minimize, mitigate and/or compensate for any adverse effects on dunes or dune vegetation; (xiii) proof of the applicant's financial capability acceptable to the local government to mitigate or compensate for adverse effects on dunes and dune vegetation; (xiv) an accurate map, site plan, or plat of the site identifying: R24012D3.doc ATTACHMENT F --13 - - R24012D3.doc I 1 (I) the site by its legal description, including, where applicable, the subdivision, block, and lot; (II) the location of the property lines and a notation of the legal description of adjoining tracts; (III) the location of the dune protection line, the line of vegetation, proposed and existing structures, and the project area of the proposed construction on the tract; (IV) proposed roadways and driveways and proposed landscaping activities on the tract; (V) the location of any seawalls or any other erosion response structures on the tract and on the properties immediately adjacent to the tract; and (VI) 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. (8) Certificate application requirements for large-and small-scale construction. For all proposed construction, local governments shall require applicants to submit the following items and information: (i) the name, address, phone number, and, if applicable, fax number of the applicant, and the name of the property owner, if different from the applicant; (ii) a complete legal description of the tract and a statement of its size in acres or square feet; (iii) the number of proposed structures and whether the structures are amenities or habitable structures; (iv) a statement written by the applicant affirming that the construction, the completed structure, and use of or access to and from the structure will not adversely affect the public beach or public beach access ways or exacerbate erosion; (v) the approximate duration of the construction; (vi) a description (including location) of any existing or proposed walkways or dune walkovers on the tract; (vii) photographs of the site which clearly show the current location of the vegetation line and any dunes on the tract which are seaward of the dune protection line; (viii) an accurate map, site plan, or plat of the site identifying: (I) the site by its legal description, including, where applicable, the subdivision, block, and lot; (II) the location of the property lines and a notation of the legal description of adjoining tracts; ATTACHMENT F -- 14 ---r---"- .. lIlT R24012D3.doc - (III) the location of the proposed construction and the distance between the proposed construction and mean high tide, the vegetation line, the dune protection line, and the landward limit of the beachfront construction area; (IV) the location of proposed and existing structures, and the size (in acres or square feet) of the proposed project area; (V) proposed roadways and driveways; (VI) proposed landscaping activities within 200 feet of the line of vegetation; and (VII) the location of any retaining walls or erosion response structures on the tract and on the properties immediately adjacent to the tract and within 100 feet of the common property line. (C) Permit and certificate applications for large-scale construction. For all proposed large- scale construction, local governments shall require applicants to submit the following additional items and information: (i) if the tract is located in a subdivision and the applicant is the owner or developer of the subdivision, a certified copy of the recorded plat of the subdivision, or, if not a recorded subdivision, a plat of the subdivision certified by a licensed surveyor, (if the area is located within an un-platted tract, a survey will suffice) and a statement of the total area of the subdivision in acres or square feet; (ii) in the case of multiple-unit dwellings, the number of units proposed; (iii) alternatives to the proposed location of construction on the tract or to the proposed methods of construction which would cause fewer or no adverse effects on dunes and dune vegetation or less impairment of beach access; and (iv) the proposed activity's impact on the natural drainage pattern of the site and the adjacent lots. (D) Submission of readily available information with permit and certificate applications. For all proposed construction (large and small-scale), if applicants already have the following items and information, local governments shall require them to be submitted in addition to the other information required: (i) the most recent local historical erosion rate data (as determined by the University of Texas at Austin, Bureau of Economic Geology) and the activity's potential impact on coastal erosion; and (ii) a copy of the FEMA 'Elevation Certificate.' (E) Submission of information by local governments. For all proposed construction (large and small-scale), local governments shall provide to the state the following information: (i) a copy of the community's most recent fiood insurance rate map identifying the site of the proposed construction; (ii) a preliminary determination as to whether the proposed construction complies ATTACHMENT F -- 15 ,.~,_.._~~-~..~_.._-~-,><..., with all aspects of the local government's dune protection and beach access plan; (iii) the activity's potential impact on the community's natural flood protection and protection from storm surge; (iv) a description as to how the proposed beachfront construction complies with and promotes the local government's beach access policies and requirements, particularly, the dune protection and beach access plan's provisions relating to public beach ingress/egress, off-beach parking, and avoidance of reduction in the size of the public beach due to erosion; and (v) copies of aerial photographs of the proposed construction site with a delineation of the footprint of the proposed construction, if the local government has aerial photographs of the area in which construction is proposed. (F) Dissemination of erosion data and other technical information. For all proposed construction (large and small-scale), the General Land Office shall be the state contact for erosion rate data questions and supply available technical information to a local government, upon request. (5) Master plan. Local governments may adopt separate ordinances or county commissioners court orders authorizing master plans located within the geographic scope of this subchapter. These ordinances and orders shall be consistent with and address the dune protection and beach access requirements of this subchapter, the Dune Protection Act and Open Beaches Act. The ordinances and orders shall be submitted to the General Land Office and the attorney general's office for review and approval to ensure consistency with this subchapter. When considering approval of a master planned development or construction plans and setting conditions for operations under such plans, local governments shall consider: (A) the plan's potential effects on dunes, dune vegetation, public beach use and access, and the applicant's proposal to mitigate for such effects throughout the construction; (B) the contents of the master planned development; and (C) whether any component of the master plan, such as installation of roads or utilities, or construction of structures in critical dune areas or seaward of a dune protection line, will subsequently require a dune protection permit or a beachfront construction certificate. If a dune protection permit or beachfront construction certificate will be necessary, the local government shall require the developer to apply for the permit and/or certificate as part of the master plan approval process. This requirement only applies if the local government is authorizing activities impacting critical dune areas and public beach use and access under its dune protection and beach access plan. (6) 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, including any associated materials, to the General Land Office and the attorney general's office. The application, 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 before 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 R24012D3.doc ATTACHMENT F -- 16 ... r . -"'--~-'---,r-----' ..~.. - 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 local government may act on such applications if the state agencies received the application within the proper time frame and the state 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. (7) Local government review. When determining whether to approve a proposed activity, a local government shall review and consider: (A) the permit or certificate application; (B) the proposed activity's consistency with this subchapter and the local government's dune protection and beach access plan, including the dune protection and beachfront construction standards contained in both; (e) any other law relevant to dune protection and public beach use and access which affects the activity under review; (D) the comments of the General Land Office and the attorney general's office; and (E) any other information the local government may consider useful to determine consistency with the local government's dune protection and beach access plan, including resource information made available to them by federal and state natural resource entities. A local government shall not issue a dune protection permit or beachfront construction certificate that is inconsistent with its plan, this subchapter, and other state, local, and federal laws related to the requirements of the Dune Protection Act and Open Beaches Act. (t) Term and renewal of permits and certificates. (1) A local government's dune protection permits or beachfront construction certificates shall be valid for no more than three years from the date of issuance. A local government may renew a dune protection permit or beachfront construction certificate allowing proposed construction to continue if the activity as proposed in the application for renewal meets the applicable state and local standards and the permittee supplements the information provided in the original permit or certificate application materials with additional information indicating any changes to the original information provided by the applicant. For the purpose of maintaining administrative records for permits, certificates, and renewals, if any, local governments are required to keep all original application materials submitted by any applicant for three years, as provided in subsection (u) of this section. Each renewal of a permit and certificate allowing construction shall be valid for no more than 90 days. A local government shall issue only two renewals for each permit or certificate. After the local government issues two renewals, the permittee must apply for a new permit or certificate. In addition, local governments shall require a permittee to apply for a new permit or a certificate if the proposed construction is changed in any manner which causes or increases adverse effects on dunes, dune vegetation, and public beach use and access within the geographic scope of this subchapter. (2) Local governments that choose to authorize master plans may adopt a different term limit for permits and certificates only if the master plans are authorized under a separate, state-approved ordinance or county commissioners court order. Each master plan will be deemed to be a new local ordinance or county commissioners court order subject to state approval regarding effects on dunes, dune vegetation, and public beach use and access. R24012D3.doc ATTACHMENT F -- 17 \I 1 rmr (3) Any dune protection permit or beachfront construction certificate allowing beachfront construction issued by a local government pursuant to its dune protection and beach access plan shall be voidable under the following circumstances. (A) The permit or certificate is inconsistent with this subchapter or the local government's plan at the time the permit or certificate was issued. (8) A material change occurs after the permit or certificate is issued. (C) A permittee fails to disclose any material fact in the application. (4) A local government shall require that a permittee apply for a new permit or certificate in the event of any materiai changes. A local government shall require that an applicant modify an application disclosing all information relevant to the material changes, if such changes occur before the local government issues the permit or certificate. (5) A permit or certificate automatically terminates in the event the certified construction comes to lie within the boundaries of the public beach by artificial means or by action of storm, wind, water, or other naturally influenced causes. Nothing in the certificate shall be construed to authorize the construction, repair, or maintenance of any construction within the boundaries of the public beach at any time. (u) Administrative record. (1) Local governments shall compile and maintain an administrative record which demonstrates the basis for each final decision made regarding the issuance of a dune protection permit or beachfront construction certificate. The administrative record shall include copies of the following: (A) all materials the local government received from the applicant as part of or regarding the permit or certificate application; (8) the transcripts, if any, or the minutes and/or tape of the local government's meeting during which a final decision regarding the permit or certificate was made; and (C) all comments received by the local government regarding the permit or certificate. (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 appropriate agency no later than ten working days after the local government receives the request. The 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). Source: The provisions of this 915.3 adopted to be effective February 17,1993,18 TexReg 661; amended to be effective April 16, 1996,21 TexReg 3004; amended to be effective September 25,1997, 22 TexReg 9476. R24012D3.doc ATTACHMENT F -- 18 I I ------r--.-. .. In' !i 15.4. Dune Protection Standards (a) Dune protection required. This section provides the standards and procedures local governments shall follow in issuing, denying, or conditioning dune protection permits. A local government shall protect dunes and dune vegetation from adverse effects resulting directly or indirectly from construction in a critical dune area or seaward of its dune protection line, as cumulatively required by the Dune Protection Act, this subchapter, and that local government's dune protection and beach access plan. (b) Procedures for local government permit determinations and permit issuance. Before issuing a dune protection permit, a local government shall make the following determinations. (1) The proposed activity is not a prohibited activity as defined in subsection (c) of this section,!i 15.5 of this title (relating to Beachfront Construction Standards), or!i 15.6 of this title (relating to Concurrent Dune Protection and Beachfront Construction Standards). (2) The proposed activity will not materially weaken dunes or materially damage dune vegetation based on the application of technical standards resulting in substantive findings under subsection (d) of this section. (3) There are no practicable alternatives to the proposed activity and the impacts cannot be avoided as provided in subsection (1)(1) of this section. (4) The applicant's mitigation plan will adequately minimize, mitigate, and/or compensate for any unavoidable adverse effects, as provided in subsections (1)(2)-(5) of this section. (c) Prohibited activities. A local government shall not issue a permit or certificate authorizing the following actions within critical dune areas or seaward of that local government's dune protection line: (1) activities that are likely to result in the temporary or permanent removal of sand from the portion of the beach/dune system located on or adjacent to the construction site, including: (A) moving sand to a location landward of the critical dune area or dune protection line; and (B) temporarily or permanently moving sand off the site, except for purposes of permitted mitigation, compensation, or an approved dune restoration or beach nourishment project and then only from areas where the historical accretion rate is greater than two feet per year, and the project does not cause any adverse effects on the sediment budget; (2) depositing sand, soil, sediment, or dredged spoil which contains the hazardous substances listed in Volume 40 of the Code of Federal Regulations, Part 302.4, 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; (3) depositing sand, soil, sediment, or dredged spoil which is of an unacceptable mineralogy or grain size when compared to the sediments found on the site (this prohibition does not apply to materials related to the installation or maintenance of public beach access roads running generally perpendicular to the public beach); (4) creating dredged spoil disposal sites, such as levees and weirs, without the appropriate local, state, and federal permits; (5) constructing or operating industrial facilities not in full compliance with all relevant laws and permitting requirements prior to the effective date of this subchapter; R24012D3.doc ATTACHMENT F -- 19 .. . - (6) operating recreational vehicles; (7) mining dunes; (8) constructing concrete slabs or other impervious surfaces within 200 feet landward of the natural line of vegetation. Local governments may authorize construction of a concrete slab or other impervious surface beneath a habitable structure elevated on pilings provided the siab wili not extend beyond the perimeter of the structure and will not be structurally attached to the building's foundation. Local governments shall not authorize the construction, outside the perimeter of a habitabie structure, of a concrete slab or other impervious surface whose area exceeds 5.0% of the footprint of the habitable structure. The use of permeable materials such as brick pavers, limestone, or gravel is recommended for drives or parking areas; (9) depositing trash, waste, or debris including inert materials such as concrete, stone, and bricks that are not part of the permitted on-site construction; (10) constructing cisterns, septic tanks, and septic fields seaward of any structure serviced by the cisterns, septic tanks, and septic fields; and (11) detonating bombs or explosives. (d) Technical standards for local government determination as to material weakening of dunes and material damage of dune vegetation within a critical dune area or seaward of a dune protection line. A local government may approve a permit application only if it finds as a fact, after a full investigation, that the particular conduct proposed will not materially weaken any dune or materially damage dune vegetation or reduce the effectiveness of any dune as a means of protection against erosion and high wind and water. In making the finding as to whether such material weakening or materiai damage will occur, a local government shall use the following technical standards. Failure to meet anyone of these standards will result in a finding of material weakening or material damage and the iocal government shall not approve the application for the construction as proposed. (1) The activity shall not result in the potential for increased flood damage to the proposed construction site or adjacent property. (2) The activity shall not result in runoff or drainage patterns that aggravate erosion on or off the site. (3) The activity shall not result in significant changes to dune hydrology. (4) The activity shall not disturb unique flora or fauna or resuit in adverse effects on dune complexes or dune vegetation. (5) The activity shall not significantly increase the potential for washovers or blowouts to occur. (e) Local government considerations when determining whether to issue a dune protection permit. Local governments shall consider the following items and information when determining whether to grant a permit: (1) all comments submitted to the local government by the General Land Office and the attorney general's Office; (2) cumuiative and indirect effects of the proposed construction on all dunes and dune vegetation within critical dune areas or seaward of a dune protection line; (3) cumulative and indirect effects of other activities on dunes and dune vegetation located on the R24012D3.doc ATTACHMENT F -- 20 .. .. .<-->-~.---.,~,..... - proposed construction site; (4) the pre-construction type, height, width, slope, volume, and continuity of the dunes, the pre- construction condition of the dunes, the type of dune vegetation, and percent of vegetative cover on the site; (5) the local historical erosion rate as determined by the University of Texas at Austin, Bureau of Economic Geology, and whether the proposed construction may alter dunes and dune vegetation in a manner that may aggravate erosion; (6) the applicant's mitigation plan for any unavoidable adverse effects on dunes and dune vegetation and the effectiveness, feasibility, and desirability of any proposed dune reconstruction and revegetation; (7) the impacts on the natural drainage patterns of the site and adjacent property; (8) any significant environmental features of the potentially affected dunes and dune vegetation such as their value and function as floral or faunal habitat or any other benefits the dunes and dune vegetation provide to other natural resources; (9) wind and storm patterns including a history of wash over patterns; (10) location of the site on the flood insurance rate map; and (11) success rates of dune stabilization projects in the area. (I) Mitigation. The mitigation sequence shall be used by iocal governments in determining whether to issue a permit, after the determination that no material weakening of dunes or material damage to dunes or dune vegetation will occur within critical dune areas or seaward of the dune protection line. The mitigation sequence consists of the following steps: avoiding the impact altogether by not taking a certain action or parts of an action; minimizing impacts by limiting the degree or magnitude of the action and its implementation; rectifying the impact by repairing, rehabilitating, or restoring the affected environment; and compensating for the impact by replacing resources lost or damaged. If, for any reason, an applicant cannot demonstrate the ability to mitigate adverse effects on dunes and dune vegetation, the local government is not authorized to issue the permit. A local government shall require a permittee to use the mitigation sequence as a permit condition if that local government finds that an activity will result in any adverse effects on dunes or dune vegetation seaward of a dune protection line or on critical dune areas. When a local government requires mitigation as a permit condition, it shall require that the permittee follow the order of the mitigation sequence as provided in this subsection. (1) Avoidance. Avoidance means avoiding the effect on dunes and dune vegetation altogether by not taking a certain action or parts of an action. Local governments shali require permittees to avoid adverse effects on dunes and dune vegetation. Local governments shall not issue a permit allowing any adverse effects on dunes and dune vegetation located in critical dune areas or seaward of the dune protection line unless the applicant proves there is no practicable alternative to the proposed activity, proposed site or proposed methods for conducting the activity, and the activity will not materially weaken the dunes or dune vegetation. Local governments shall require permittees to inciude information as to practicable alternatives in the permit application. Local governments shall review the permit application to determine whether the permittee has considered all practicable alternatives and whether one of the practicable alternatives would cause no adverse effects on dunes and dune vegetation than the proposed activity. Local governments shall require permittees to employ construction methods which will have no adverse effects, unless the permittee can demonstrate that the use of such methods is not practicable. Local governments shall require that permittees undertaking construction in critical dune areas or seaward of a dune protection line use the following avoidance techniques. R24012D3.doc ATTACHMENT F -- 21 .. T w - (A) Routing of nonexempt pipelines. Nonexempt pipelines are any pipelines other than those subject to the exemption in ~ 15.3(s)(2)(A) of this title (relating to Administration). Local governments shall not allow permittees to construct nonexempt pipelines within critical dune areas or seaward of a dune protection line unless there is no practicable alternative. (8) Location of construction and beach access. Local governments shall require permittees proposing construction seaward of dune protection lines and within critical dune areas to locate all such construction as far landward of dunes as practicable. Local governments shall not restrict construction which provides access to and from the public beach pursuant to this provision. (C) Location of roads. Local governments shall require permittees constructing roads parallel to beaches to locate the roads as far landward of critical dune areas as practicable and shall not allow permittees to locate such roads within 200 feet landward of the natural vegetation line. (D) Artificial runoff channels. Local governments shall not permit construction of new artificial channels, including stormwater runoff channels, unless there is no practicable alternative. (2) Minimization. Minimization means minimizing effects on dunes and dune vegetation by limiting the degree or magnitude of the action and its implementation. Local governments shall require that permittees minimize adverse impacts to dunes and dune vegetation by limiting the degree or magnitude of the action and its implementation. If an applicant for a dune protection permit demonstrates to the local government that adverse effects on dunes or dune vegetation cannot be avoided and the activity will not materially weaken dunes and dune vegetation, the local government may issue a permit allowing the proposed alteration, provided that the permit contains a condition requiring the permittee to minimize adverse effects on dunes or dune vegetation to the greatest extent practicable. (A) Routing of nonexempt pipelines. Nonexempt pipelines are any pipelines other than those subject to the exemption in 915.3(s)(2)(A) of this title (relating to Administration). If a permittee demonstrates that there is no practicable alternative to crossing critical dune areas, the local government may allow a permittee to construct a pipeline across previously disturbed areas, such as blowout areas. Where use of previously disturbed areas is not practicable, the local government shall require the permittee to avoid adverse effects on or disturbance of dune surfaces and shall require the mitigation sequence if the adverse effects are unavoidable. (8) Location of construction and beach access. (i) Local governments shall require permittees to minimize construction and pedestrian traffic on or across dune areas to the greatest extent practicable, taking into account trends of dune movement and beach erosion in that area. (ii) Local governments may allow permittees to route private and public pedestrian beach access to and from the public beach through wash over areas or over elevated walkways in their approved dune protection and beach access plans. All pedestrian access routes and walkways shall be clearly and conspicuously marked with permanent signs by the local government if the beach access is public. (iii) Local governments shall minimize proliferation of excessive private access by permitting only the minimum necessary private beach access points to the public R24012D3.doc ATTACHMENT F -- 22 II I . - rm beach from any proposed subdivision, multiple dwelling, or commercial facility. In some cases, the minimum beach access points may be only one access point. In determining the appropriate grouping of access points, the local government shall consider the size and scope of the development. (iv) Local governments and the owners and operators of commercial facilities, subdivisions, and multiple dwellings shall post signs in areas where pedestrian traffic is high, explaining the functions of dunes and the importance of vegetation in preserving dunes. (C) Location of roads. (i) Wherever practicable, local governments may require permittees to locate beach access roads in washover areas, blowout areas, or other areas where dune vegetation has already been disturbed; local governments shall require permittees to build such roads along the natural land contours, to minimize the width of such roads, and where possible, to improve existing access roads with elevated berms near the beach that prevent channelization of floodwaters. Where practicable, local governments shall require permittees to locate roads at an oblique angle to the prevailing wind direction. (ii) Wherever practicable, local governments shall provide vehicular access to and from beaches by using existing roads or from roads constructed in accordance with paragraph (1 HC) of this subsection and clause (i) of this subparagraph. Local governments shall not apply this provision in a manner which restricts public beach access. (iii) Local governments shall include in any permit authorizing the construction of roads a permit condition prohibiting persons from using or parking any motor vehicle on, through, or across dunes in critical dune areas except for the use of vehicles on designated access ways. (D) Artificial runoff channels. Local governments shall only authorize construction of artificial runoff channels (that direct stormwater flow) if the channels are located in a manner which avoids erosion and unnecessary construction of additional channels. Local governments shall require that permittees make maximum use of natural or existing drainage patterns, whenever practicable, when locating new channels and stormwater retention basins. However, if new channels are necessary, local governments shall require that permittees direct all runoff inland and not to the Gulf of Mexico through critical dune areas, where practicable. (3) Mitigation. Mitigation means repairing, rehabilitating, or restoring affected dunes and dune vegetation. Local governments shall require permittees, as a condition of the permit, to mitigate all adverse effects to dunes and dune vegetation which will occur after a permittee has avoided and minimized such adverse effects to the greatest extent practicable. Local governments shall require the permittee to mitigate damage to dunes and dune vegetation so as to provide, when compared to the pre-existing dunes and dune vegetation, an equal or greater area of vegetative cover and dune volume, an equal or greater degree of protection against damage to natural resources, and an equal or greater degree of protection against flood and erosion damage and other nuisance conditions to adjacent properties. When determining the appropriate mitigation method, local governments shall consider the recommendations of the General Land Office, federal and state natural resource agencies, and dune vegetation experts. (A) Mitigation standards for dunes. Local governments may allow a permittee to mitigate adverse effects on dunes using vegetative or mechanical means. Local governments shall require that a permittee proposing to restore dunes use the following techniques: R24012D3.doc ATTACHMENT F -- 23 ~ 'W' (i) restore dunes to approximate the naturally formed dune position or location, contour, volume, elevation, vegetative cover, and sediment content in the area; (ii) allow for the natural dynamics and migration of dunes; (iii) use discontinuous or continuous temporary sand fences or an approved method of dune restoration, where appropriate, considering the characteristics of the site; and (iv) restore or repair dunes using indigenous vegetation that will achieve the same protective capability or greater capability as the surrounding natural dunes. (B) Stabilization of critical dune areas. Local governments shall give priority for stabilization to blowouts and breaches when permitting restoration of dunes. Before permitting stabilization of washover areas, local governments shall: (i) assess the overall impact of the project on the beach/dune system; (ii) consider any adverse effects on hydrology and drainage which will result from the project; and (iii) require that equal or better public beach access be provided to compensate for impairment of any public beach access previously provided by the washover area. (4) Compensation. Compensation means compensating for effects on dunes and dune vegetation by replacing or providing substitute dunes and dune vegetation. Compensation may be undertaken both on-site and off-site; however, off-site compensation may only be allowed as provided in subparagraph (B) of this section. (A) On-site compensation. On-site compensation consists of replacement of the affected dunes or dune vegetation on the property where the damage to dunes and dune vegetation occurred and seaward of the local dune protection line. A local government shall require permittees to undertake compensation on the construction site, where practicable. A local government shall require a permittee to follow the requirements provided in paragraph (3)(A) of this subsection and paragraph (4)(C)(iii)-(iv) of this subsection when replacing dunes or dune vegetation. (B) Off-site compensation. Off-site compensation consists of replacement of the affected dunes or dune vegetation in a location outside the boundary of the property where the damage to dunes and dune vegetation occurred. The landward limit of allowable off-site mitigation is the local dune protection line. Local governments shall require that a permittee's compensation efforts take place on the construction site unless the permittee demonstrates the following facts to the local government: (i) on-site compensation is not practicable; (ii) the off-site compensation will be located as close to the construction site as practicable; (iii) the proffered off-site compensation has achieved a 1: 1 ratio of proposed adverse effects on successful, completed, and stabilized restoration prior to beginning construction; (iv) the permittee has notified FEMA, Region 6, of the proposed off-site R24012D3.doc ATTACHMENT F -- 24 I 1 rrrr compensation. (C) Information required for off-site compensation. Local governments shall require permittees to provide the following information when proposing off-site compensation: (i) the name, address, phone number, and fax number, if applicable, of the owner of the property where the off-site compensation will be located; (ii) a legal description of property intended to be used for the proposed off- site compensation; (iii) the source of sand and the dune vegetation; (iv) all information regarding permits and certificates issued for the restoration of dunes on the compensation site; (v) all relevant information regarding the success, current status, and stabilization of the dune restoration efforts on the compensation site; (vi) any increase in potential flood damage to the site where the adverse effects on dunes and dune vegetation will occur and to the public and private property adjacent to that site; and (vii) the proposed date of initiation of the compensation. Local governments shall include a condition in each permit authorizing off-site compensation which requires permittees to notify local governments in writing of the actual date of initiation within ten working days after compensation is initiated. If the permittee fails to begin compensation on the date proposed in the application, the permittee shall provide the local government with the reason for the delay. Local governments shall take this reason into account when determining whether a permittee has violated the compensation deadline. (5) Compensation for adverse effects on dune vegetation. Local governments shall require that permittees compensate for adverse effects on dune vegetation by planting indigenous vegetation on the affected dunes and shall consider the recommendations of the General Land Office, federal and state natural resource agencies, and dune vegetation experts. Local governments may allow a permittee to use temporary sand fencing or another approved method of dune restoration. Local governments shall prohibit a permittee from compensating for adverse effects on dune vegetation by removing existing vegetation from private or state-owned property unless the permittee has received prior written permission from the property owner or the state. In addition to the requirement that permission be obtained from the property owner, all persons are prohibited from removing vegetation from a critical dune area or seaward of a dune protection line unless specifically authorized to do so in a dune protection permit. Local governments shall include conditions in such permits requiring the permittee to provide a copy of the written permission for vegetation removal and to identify the source of any sand and vegetation which will be used to compensate for adverse effects on dunes and dune vegetation in the mitigation plan contained in the permit application. (g) Mitigation or compensation deadline. (1) Initiation of compensation. Local governments shall require permittees to begin compensation for any adverse effect(s) to dunes and dune vegetation prior to or concurrent with the commencement of construction. If compensation is not completed prior to commencement of construction, the local government shall require that the permittee provide the local government with proof of financial responsibility in an amount equal to that necessary to complete the R24D12D3.doc ATTACHMENT F -- 25 .,... T w mitigation. This can be done in the form of an irrevocable letter of credit, performance bond, or any other instrument acceptable to the local government. (2) Completion of compensation. Locai governments shall require permittees to conduct compensation efforts continuously until the repaired, rehabilitated, and restored dunes and dune vegetation are equai or superior to the pre- existing dunes and dune vegetation. These efforts shall include preservation and maintenance pending completion of compensation. (3) Local government determination of completion of compensation. Local governments shall determine a compensation project complete when the dune restoration project's position, contour, volume, elevation, and vegetative cover matches or exceeds the surrounding naturally formed dunes. (4) State agency notification of compensation certification. Local governments shall provide written notification to the General Land Office after determining that the compensation is complete. The General Land Office may conduct a field inspection to verify compliance with this subchapter. If the local government does not receive an objection from the General Land Office regarding the completion of compensation within 30 working days after the General Land Office is notified in writing, the local government may certify that the compensation is complete. (5) Violation of compensation deadline. The General Land Office recognizes that the time necessary to restore dunes and dune vegetation varies with factors such as climate, time of year, soil moisture, plant stability, and storm activity. The permittee shall be deemed to have failed to achieve compensation if a 1: 1 ratio has not been achieved within three years after beginning compensation efforts. Source: The provisions of this !l15.4 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996,21 TexReg 3004. !i 15.5. Beachfront Construction Standards (a) Local government certification of beachfront construction. This section provides the standards local governments shall follow when preparing that portion of the dune protection and beach access plan specifically related to issuing or conditioning beachfront construction certificates. In general, within its jurisdiction, a local government shall not allow diminution of the size of public beaches and shall preserve and enhance public access between public beaches and public roads lying landward. A local government certification shall consist of one of two affirmative findings: an affirmative finding by a local government that the proposed construction is consistent with the beach access portion of a local government's dune protection and beach access plan and does not encroach upon the public beach, nor does it interfere with, or otherwise restrict, the public's right to use and have access to and from the public beach; or an affirmative finding that the proposed construction is inconsistent with the beach access portion of a local government's dune protection and beach access plan. The beach access portion of the local government's dune protection and beach access plan shall provide that beachfront construction will not adversely affect or allow encroachments upon the public beach or interfere with or otherwise impair the public's right to use and have access to and from the public beach. (b) Prohibition of certification. Local governments shall not issue a certificate authorizing beachfront construction if the local government determines that the construction: (1) reduces the size of the public beach in any manner; (2) closes or otherwise impairs any existing public beach access point unless the local government simultaneously provides or requires the permittee to provide equivalent or better public access; or R24012D3.doc ATTACHMENT F -- 26 . ,. ~"'~~~'".-......"-..''''_-_,_,, " _ _....._.__. '~_""'_'_'_~~_M__.,_, .,,~.., ,.. _"__""._'_'__'_ .... (3) includes a proposal to build a concrete slab or other impervious surface within 200 feet of the line of vegetation or within the eroding area boundary (if such a boundary is established in the local beach/dune plan), whichever distance is greater. Local governments may authorize construction of a concrete slab or other impervious surface beneath a habitable structure elevated on pilings provided the slab will not extend beyond the perimeter of the structure and will not be structurally attached to the building's foundation. Local governments shall not authorize the construction, outside the perimeter of a habitable structure, of a concrete slab or other impervious surface whose area exceeds 5.0% of the footprint of the habitable structure. The use of permeable materials such as brick pavers, limestone, or gravel is recommended for drives or parking areas. (c) Encroachments on public beaches. (1) Prohibition of construction on the public beach. A local government is prohibited from issuing a certificate authorizing any person to undertake any construction on the public beach or any construction that encroaches in whole or in part on the public beach. This prohibition does not prevent the approval of man-made vegetated mounds and dune walkovers under a properly issued dune protection permit and beachfront construction certificate. Any issuance or approval of a permit, certificate, or any other instrument contrary to this subsection is void. (2) Construction landward of the public beach. Local governments shall not issue any beach front construction certificate authorizing construction landward of the public beach that functionally supports or depends on, or is otherwise related to, proposed or existing structures that encroach on the public beach, regardless of whether the encroaching structure is on land that was previously landward of the public beach. (3) Repair of existing structures on the public beach. A local government shall only issue a beachfront construction certificate or dune protection permit authorizing the repair of a structure that crosses the line of vegetation and encroaches on a public beach if the proposed repairs comply with the standards provided in this paragraph and 9 15.6(e) and (I) of this title (relating to Concurrent Dune Protection and Beachfront Construction Standards), if the structure is not subject to imminent collapse, and if there is no enforcement action pending under this chapter, the Open Beaches Act, the Dune Protection Act, or the local government plan. 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. Pursuant to this paragraph, a local government may authorize the repair of an existing structure that crosses the line of vegetation and encroaches on a public beach notwithstanding the provisions of paragraphs (1) and (2) of this subsection. (A) Local governments shall not issue a certificate or permit authorizing repair of a structure that crosses the line of vegetation, as determined pursuant to subparagraph (E) of this paragraph, and encroaches on a public beach if the local government determines that the repairs: (i) include a proposal to repair or construct a slab or other impervious surface of concrete or other impervious materials, although wooden decking, brick pavers, or other pervious materials may be used beneath the footprint of the structure (ii) include a proposal to repair or construct an enclosed space below the base flood elevation and seaward of the line of vegetation; (iii) include a proposal to increase the footprint of the structure; (iv) are for a structure without a functioning septic system or sewer connection as determined by the local government or the Texas Natural Resource Conservation Commission, unless a septic system may be repaired as provided in R24012D3.doc ATTACHMENT F -- 27 . 1 ~"'--'----r--""-' r R24012D3.doc - subparagraph (B) of this paragraph; (v) include a proposal for construction, repair, or maintenance of an erosion response structure; (vi) are for a structure previously built, repaired, or renovated in violation of this subchapter or the local government plan or without an approved certificate or permit; or (vii) include a proposal to use soil or sediment within the beach/dune system that is not of an acceptable mineralogy or grain size when compared to the sediments found on the site. (B) A local government may issue a beachfront construction certificate or dune protection permit for the construction or repair of a septic system landward of the line of vegetation if the system complies with the rules of the Texas Natural Resource Conservation Commission and the local government governing on- site sewage facilities. (C) A local government shall only issue a certificate or permit for the repair of an amenity that crosses the line of vegetation and encroaches on a public beach or that is attached to a structure that crosses the line of vegetation and encroaches on a public beach only if the amenity is less than 50% damaged and if all non-essential paving or other impervious surfaces associated with the amenity are replaced by wooden decking, brick pavers, or other pervious materials. (D) A local government shall only issue a certificate or a permit authorizing the construction of a dune restoration project concurrent with the repair of a structure that crosses the line of vegetation if the proposed dune restoration follows the standards provided in this paragraph and S 15.7(e) of this title (relating to Local Government Management of the Public Beach). A dune restoration project under this paragraph shall: (i) use sand that is of an acceptable mineralogy or grain size when compared to the sediments found on the site; (ii) either extend no more than ten feet seaward of the footprint of the structure or extend no more than twenty feet seaward of the line of vegetation; (iii) use indigenous vegetation that will achieve the same protective quality as the surrounding naturai dunes or other dunes in the general vicinity; and (iv) not restrict or interfere with the public use of the beach at normal high tide. (E) A person submitting an application for repair of a structure that crosses the line of vegetation and encroaches on a public beach shall submit an original executed copy of the following statement signed by the owner of the property to the iocal government, General Land Office, and the Office of the Attorney General. ATTACHMENT F -- 28 -.~----_._.....~-~_.._-_.._._., NOTlCF. ANTI ACK"IOWT."F.I)(:f'.Mr..... Th e u nde I'si g:ned ncknO'\vledgcs fuld f1dmilS llUll hc/sbJ:: i& .he own..:::r .of rcc.ord (} [ the following dust.TIbod TC~ 1 property ~",'hich cru:::;::!.~ lhe liw..: v;"vcg.c.:;l..a.Llnn am! is parlially sCliward of [lie li"e nfvcgctatinn: Iproperty Slreet oddress and legal description]. In .applj'ing tOT II pLTInit to repalT the ahn'\.'e desclibed real property, the uncte~isned il<;KI1()wledBe6 md admito fhat tlLe public h.~ acquired ~ right ('lfuse- or easeme.nt to or o.,.erlh~ area ortht: publit: bvach by prcl:lcripliljn~ uodication. or pn;~\llIlphuI1I.or babl rcht~nccl~, righl by viTLue of conLinuous right in the public since time lmmemDria]~ af:. recogni7.ed [n law and L:u!t;mnl. 'The l;ne ofveseta.til.'ln, tbe extreme seawilrd bound~' ofnflLLlraL 'Veg~l~l1.iOJ1 Uml !ioprcads continuously i.nltUld~ C:U~lI,)ID.arily mc.rr1c..s the landward buundurj! of Lhc public: CliSemoimt. St2.tc la\l,. ~rnhihith any nhstlllctilln) k;trrierJ restrtlinf) t.'lr inr.erference with the llS~ o[(he public e3St'm(:nl~ indudulg !he placement of Eltructures sea wanl uf Lhc linv uf vcgct.aLion, S Ir1Lt;lurc~ crt.'t:iWtl sea \,,"'2iTd 0 f the line of vegetation (or other applic.ahle easemenL houndary) or that hecome ~eaWilTd of tile line ofvegetatiOIl as II re.sult ofnattlral procesS<::Sl such as IDoreline erosjou~ are sLLb.iect 10 a lawlmiL b.>' [be S1att; 01"TO:\8810 r-L.."ffi01,:C lhe ~lruC.lun.~~i. The l:wknowku.gcrm,'11.l:;. in fhis. docwnent are hindil'lg upon the successon;, hei1's. and ,jJ.S.Sjgns of the undersigned. [Printo<! Nan,e] 'l'llli ~'l'A'l'L OJ- TllXAS ~ ~ COl..NTY 01' ~ RRF'ORF. \fF" ti,e undcl.,ign.d authority, on 1h.is day p~I's"llllll>' apJl<"lrcd known \0 me lo hlJ thcpct.!ioun whuSCinamc is ~Ub5Crihcd to the: foregoing instrument, and acknowledged to me that hel:,;l1e e;l[ecuted tbe ,ame for tb e r'"rposel; therein expressed. G1VBN U~DE.R MY Il"'""D AND SEAL OF OFFlCE, lbi, the _ <ill)' of Nobry Public ill and ~o.r Print Name My commis.sion expll'e5." (F) A local government may only authorize the repair of structures pursuant to the provisions of this paragraph from the effective date of this paragraph through June 1, 2000. Notwithstanding any other provision under this subchapter, a local government's dune protection permits or beachfront construction certificates issued under this paragraph shall be valid for no more than 12 months from the date of issuance. A local government shall not renew a dune protection permit or beachfront construction certificate issued under this paragraph. (d) Dedication of new beach access points. (1) Pursuant to the authority provided in the Open Beaches Act, ~ 61.015(g), and as a condition of beachfront construction certification as to consistency with a local government's plan, a local government shall require a permittee to dedicate to the public new public beach access or parking area(s), where necessary, for consistency with the beach access and use, vehicular R24012D3.doc ATTACHMENT F -- 29 . 1 ~ control, or beach user fee provisions of the pertinent state-approved dune protection and beach access plan. Such provisions shall incorporate the standards for pedestrian and vehicular access established in 915.7 of this title (relating to Local Government Management of the Public Beach). (2) A locai government shall require a permittee to dedicate an access area if it issues a certificate allowing a permittee to conduct activities which will impair access to and from the beach in any manner. Such a dedicated access area shall provide access equivalent to or better than the access impaired by the permittee's activity and shall be consistent with the pertinent provisions regarding beach access and use, vehicular controls. Source: The provisions of this 915.5 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996,21 TexReg 3004; amended to be effective February 28,2000,25 TexReg 1713 !i 15.6. Concurrent Dune Protection and Beachfront Construction Standards (a) Local government application of standards. This section provides the standards local governments shall follow when issuing, denying, or conditioning dune protection permits and beachfront construction certificates. This section applies to all construction within the geographic scope of this subchapter and to either permits or certificates or both. The requirements of this section are in addition to the requirements in 915.4 of this title (relating to Dune Protection Standards), and 915.5 of this title (relating to Beachfront Construction Standards). (b) Location of construction. Local governments shall require permittees to locate all construction as far landward as is practicable and shall not allow any construction which may aggravate erosion. (c) Prohibition of erosion response structures. Local governments shall not issue a permit or certificate allowing construction of an erosion response structure. However, a local government may issue a permit or certificate authorizing construction of a retaining wall, as defined in 9 15.2 of this title (relating to Definitions), under the following conditions. These conditions only apply to the construction of a retaining wall; all other erosion response structures are prohibited. (1) A local government shall not issue a permit authorizing the construction of a retaining wall within the area 200 feet landward of the line of vegetation. (2) A local government may issue a permit authorizing construction of a retaining wall in the area more than 200 feet landward of the line of vegetation. (d) Existing erosion response structures. In no event shall local governments issue permits or certificates authorizing maintenance or repair of an existing erosion response structure on the public beach or the enlargement or improvement of the structure within 200 feet landward of the natural vegetation line. Also within 200 feet landward of the natural vegetation line, local governments shall not issue a permit or certificate allowing any person to maintain or repair an existing erosion response structure if the structure is more than 50% damaged, except under the following circumstances. (1) When failure to repair the structure will cause unreasonable hazard to a public building, public road, public water supply, public sewer system, or other public facility immediately landward of the structure. (2) When failure to repair the structure will cause unreasonable flood hazard to habitable structures because adjacent erosion response structures will channel floodwaters to the habitable structure. R24012D3.doc ATTACHMENT F -- 30 - . (e) Construction in flood hazard areas. (1) A local government shall not issue a permit or certificate that does not comply with FEMA's regulations governing construction in flood hazard areas. FEMA prohibits man-made alteration of sand dunes and mangrove stands within Zones V1-30, V, and VE on the community's flood insurance rate maps which would increase the potential for flood damage. (2) A local government shall inform the General Land Office and the FEMA regional representative in Texas before it issues any variance from FEMA regulations or allows any activity done in variance of FEMA's regulations found in Volume 44 of the Code of Federal Regulations, Parts 59-77. Variances may adversely affect a local government's participation in the National Flood I nsurance Program. (3) A local government shall not issue a permit or certificate that does not comply with FEMA minimum requirements or with the FEMA-approved local ordinance or county commissioners court order. (I) Construction in eroding areas. Local governments with jurisdiction over eroding areas shall follow the standards provided in S 15.4 of this title (relating to Dune Protection Standards) and S 15.5 of this title (relating to Beachfront Construction Standards). If there is any conflict between this subsection, S 15.4 of this title (relating to Dune Protection Standards), and S 155 of this title (relating to Beachfront Construction Standards), this subsection applies. The General Land Office shall supply information for or assist a local government in determining eroding areas and the landward boundary of eroding areas. In addition, because of the higher risk of damage from flooding or erosion in such areas, local governments shall: (1) require that structures built in eroding areas be elevated on pilings in accordance with FEMA minimum standards or above the natural elevation (whichever is greater); (2) require that structures located on property adjacent to the public beach be designed for feasible relocation; (3) allow a permittee to alter or pave only the ground within the footprint of the habitable structure (however, brick pavers, gravel or crushed limestone may be used to stabilize driveways) only if the alteration or paving will be entirely undertaken, constructed, and located landward of 200 feet from the line of vegetation or landward of an eroding area boundary established in the local beach/dune plan, whichever distance is greater; and (4) Unless otherwise restricted by the local plan, and if consistent with the requirements of the National Flood Insurance Program, local governments may permit the construction of breakaway or louvered walls for a storage area no larger than 300 square feet. (g) Construction affecting natural drainage patterns. Local governments shall not issue a certificate or permit authorizing construction unless the construction activities will minimize impacts on natural hydrology. Such projects shall not cause erosion of adjacent properties, critical dune areas, or the public beach. (h) Emergency response to oil or hazardous substance spills. Any person responding to spills shall comply with the following regulations when cleaning up or disposing of oil or hazardous substances in the beach/dune system. (1) The state on-scene coordinator is responsible for contacting the GLO Resource Management Division regarding proposed cleanup and disposal methods. (2) The state on-scene coordinator shall, in consultation with the state natural resource trustees RZ4012D3.doc ATTACHMENT F -- 31 . 1 '-_..,..,._.-.._-.,...."........,....~....- . .,. and through the Incident Command System, determine the appropriate depth for excavation and the appropriate quantity of sand to be removed, if any, from the beach/dune system. (A) Spill cleanup. Cleanup methods shall avoid and otherwise minimize adverse impacts to the beach/dune system by ensuring that: (i) Removal of sand from the beach is limited to the absolute minimum and will not exacerbate shoreline erosion. (ii) Manual cleanup methods are used, if practicable. (iii) Grading or scraping of the beach is minimized, and grading of non-oiled or non-hazardous areas is prohibited. (B) Disposal of contaminated sand. Disposal methods shall avoid adverse impacts to the beach/dune system by ensuring that: (i) Before any scraped sand is relocated within the beach/dune system, the material shall be tested for toxicity and percent of oiling. Only material that does not pose a threat to human health and the environment may remain in the beach/dune system. New dunes (man-made mounds) may be built with non- hazardous material provided that they are built in accordance with S 15.7(e) of this title (relating to Restored dunes on public beaches) and placed in areas preapproved by the state natural resource trustees. A dune protection permit is not required for such new dune creation. The disposal shall be in accordance with applicable, relevant and appropriate requirements established by local state and federal laws. (ii) Hazardous materials shall be removed and disposed of as required by local, state and federal laws. (iii) Disposal of waste must be in compliance with applicable state and federal laws and regulations of the Texas Natural Resources Conservation Commission and the United States Environmental Protection Agency. Disposal of oiled, non- hazardous sand shall be in accordance with applicable state and federal law, except that such sand shall not be disposed of in a location on or adjacent to dune vegetation, as defined in S 15.2 of this title (relating to Definitions). Source: The provisions of this S 15.6 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996,21 TexReg 3004. S 15.7. Local Government Management of the Public Beach (a) Standards applicable to local governments. This section provides standards applicable to local government issuance, denial, or conditioning of permits or certificates, as well as all other local government activities relating to management of public beaches. (b) Construction of coastal and shore protection projects. Local governments shall encourage carefully planned beach nourishment and sediment bypassing for erosion response management and prohibit erosion response structures within the public beach and 200 feet landward of the natural vegetation line. (c) Monitoring. A local government or the state may require a permittee to conduct or pay for a monitoring program to study the effects of a coastal and shore protection project on the public beach. Further, permittees are required to notify the state and the appropriate local government of any discernible change in the erosion rate on their property. R24012D3.doc ATTACHMENT F -- 32 .._._-~- - --_.,,~-_."..- (d) Requirements for beach nourishment projects. A local government shall not allow a beach nourishment project unless it finds and the project sponsor demonstrates that the following requirements are met. (1) The project is consistent with the local government's dune protection and beach access plan. (2) The sediment to be used is of effective grain size, mineralogy, and quality or the same as the existing beach material. (3) The proposed nourishment material does not contain any of the hazardous substances listed in the Code of Federal Regulations, Volume 40, Part 300, in concentrations which are harmful to human health or the environment as determined by applicable, relevant, and appropriate requirements established by the local, state, and federal governments. (4) There will be no adverse environmental effects on the property surrounding the area from which the sediment will be taken or to the site of the proposed nourishment. (5) The removal of sediment will not have any adverse impacts on flora and fauna. (6) There will be no adverse effects caused from transporting the nourishment material. (e) Restored dunes on public beaches. Sand dunes, either naturally created or restored, may aid in the preservation of the common law public beach rights by slowing beach erosion processes. Except as otherwise provided, local governments shall allow restoration of dunes on the public beach only under the following conditions. Restored dunes may be located farther seaward than the 20-foot restoration area only upon an affirmative demonstration by the permit applicant that substantial dunes would likely form farther seaward naturally. Such seaward extension past the 20-foot area must first receive prior written approval of the General Land Office and the attorney general's office. In the absence of such an affirmative demonstration by the applicant, a local government shall require the applicant to meet the following standards relating to the location of restored dunes. (1) Local governments shall require persons to locate restored dunes in the area extending no more than 20 feet seaward of the landward boundary of the public beach. Local governments shall ensure that the 20-foot restoration area follows the natural migration of the vegetation line. (2) Local governments shall not allow any person to restore dunes, even within the 20-foot corridor, if such dunes would restrict or interfere with the public use of the beach at normal high tide. (3) Local governments shall require persons to restore dunes to be continuous with any surrounding naturally formed dunes and shall approximate the natural position, contour, volume, elevation, vegetative cover, and sediment content of any naturally formed dunes in the proposed dune restoration area. (4) Local governments shall require persons restoring dunes to use indigenous vegetation that will achieve the same protective capability as the surrounding natural dunes. (5) Local governments shall not allow any person to restore dunes using any of the following methods or materials: (A) hard or engineered structures; (8) materials such as bulkheads, riprap, concrete, or asphalt rubble, building construction materials, and any non-biodegradable items; R24012D3.doc ATTACHMENT F -- 33 1 1 w (C) fine, clayey, or silty sediments; (D) sediments containing the toxic materials listed in Volume 40 of the Code of Federal Regulations, Part 302.4 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; and (E) sand obtained by scraping or grading dunes or the beach. (6) Local governments may allow persons to use the following dune restoration methods or materials: (A) piles of sand having similar grain size and mineralogy as the surrounding beach; (8) temporary sand fences conforming to General Land Office guidelines; (C) organic brushy materials such as used Christmas trees; and (D) sand obtained by scraping accreting beaches only if the scraping is approved by the local government and the project is monitored to determine any changes that may increase erosion of the public beach. (7) Local governments shall protect restored dunes under the same restrictions and requirements as natural dunes under the local government's jurisdiction. All applications submitted to a local government for restoring dunes on the public beach shall be forwarded to both the General Land Office and the attorney general's office at least ten working days prior to the local government's consideration of the permit. Failure of the General Land Office or the attorney general's office to submit comments on an application shall not waive, diminish, or otherwise modify the beach access and use rights of the public. (8) Local governments shall not allow a permittee to construct or maintain a private structure on the restored dunes within critical dune areas or seaward of a dune protection line, except for specifically permitted dune walkovers or similar access ways. (I) Scientific research projects. Local governments may exempt a scientific research project from the requirements of S 15.4(c) of this title (relating to Dune Protection Standards) or subsection (e) of this section provided the research is conducted by an academic institution or state, federal, or local government. Prior to conducting the research, the project manager shall submit a detailed work plan and monitoring plan for approval by the General Land Office and the Office of the Attorney General. The research activities shall not materially weaken existing dunes or dune vegetation, or increase erosion of adjacent properties. (g) Dune walkovers. Local governments shall only allow dune walkovers, including other similar beach access mechanisms, which extend onto the public beach under the following circumstances. (1) Local governments shall require that permittees restrict the walkovers, to the greatest extent possible, to the most landward point of the public beach. (2) Local governments shall require that permittees construct and locate the walkovers in a manner that will not interfere with or otherwise restrict public use of the beach at normal high tides. (3) Local governments shall require that permittees relocate walkovers to follow any landward migration of the public beach or seaward migration of dunes using the following procedures and standards. R2401ZD3.doc ATTACHMENT F -- 34 . 1 r (A) After a major storm or any other event causing significant landward migration of the landward boundary of the public beach, local governments shall require permittees to shorten any dune walkovers encroaching on the public beach to the appropriate length for removal of the encroachment. This requirement shall be contained as a condition in any permit and certificate issued authorizing construction of walkovers. Local governments are required to assess the status of the public beach boundary within 30 days after a major storm or other event causing significant landward migration of the public beach. After the assessment, local governments shall inform the General Land Office and the attorney general's office of any encroachments on the public beach within ten days of completing the assessment. (B) In cases where the migration of the landward boundary of the public beach occurs slowly over a period of time or where a dune walkover needs to be lengthened because of the seaward migration of dunes, the permittee shall apply for a permit or certificate authorizing the modification of the structure. (h) Preservation and enhancement of public beach use and access. A local government shall regulate pedestrian or vehicular beach access, traffic, and parking on the beach only in a manner that preserves or enhances existing public right to use and have access to and from the beach. A local government shall not impair or close an existing access point or close a public beach to pedestrian or vehicular traffic without prior approval from the General Land Office. (1) For the purposes of this subchapter, beach access and use is presumed to be preserved if the following criteria are met. (A) Parking on or adjacent to the beach is adequate to accommodate one car for each 15 linear feet of beach. (B) Where vehicles are prohibited from driving on and along the beach, ingress/egress access ways are no farther apart than 1/2 mile. (C) Signs are conspicuously posted which explain the nature and extent of vehicular controls, parking areas, and access points. Local governments may establish their own beach access and use standards for General Land Office approval and certification based upon the General Land Office's affirmative finding that such standards preserve and enhance the public's right to use and access the public beach. (2) A local government shall have an adopted, enforceable, written policy prohibiting the local government's abandonment, relinquishment, or conveyance of any right, title, easement, right-of- way, street, path, or other interest that provides existing or potential beach access, unless an alternative equivalent or better beach access is first provided by the local government consistent with its dune protection and beach access plan. (3) This provision does not apply to any existing local government traffic regulations enacted before the effective date of this subchapter, and the former law is continued in effect until the regulations are amended or changed in whole or in part. New or amended vehicular traffic regulations enacted for public safety, such as establishing speed limits and pedestrian rights-of- way, are exempt from the certification procedure but must nevertheless be consistent with the Open Beaches Act and this subchapter. (4) This subchapter does not prevent a local government from using its existing authority to close individual beach access points for emergencies related to public safety. However, the standards and procedures for such emergency closures shall be included in its state-approved dune protection and beach access plan. R24012D3.doc ATTACHMENT F -- 35 .... ""I , _ ____-._.....__,._____._, _,....._.M._.. _..~..."."___..~.~_ ... (i) Request for state agency approval of beach access plan. When requesting approval, a local government shall submit a plan to the General Land Office and the attorney general's office providing the following information: (1) a current description and map of the entire beach access system within its jurisdiction; (2) the status of beach access demonstrated through evidence such as photographs, surveys, and statistics regarding the number of beach users; (3) a detailed description of the proposed beach access plan replacing the existing beach access system. Such description shall demonstrate the method of providing equivalent or better access to and from the public beaches; and (4) a vehicular control plan, if the local government proposes either new or amended vehicular controls for the public beach. The vehicular control plan must include, at a minimum, the following information: (A) an inventory and description of all existing vehicular access ways to and from the beach and existing vehicular use of the beach; (B) all legal authority, including local government ordinances that impose existing vehicular controls; (C) a statement of any short-term or long-range goals for restricting or regulating vehicular access and use; (D) an analysis and statement of how the proposed vehicular controls are consistent or inconsistent with the state standards for preserving and enhancing public beach access set forth in this subchapter. If a local government or the state determines that the vehicular controls are not consistent with state standards, the local government shall prepare a plan for achieving consistency within a period of time to be determined by the General Land Office and the attorney general's office. This plan shall include a detailed description of the means and methods of upgrading the avaiiability of public parking and access ways, including funding for such improvements; and (E) a description of how vehicular management relates to beach construction management, beach user fees, and dune protection within the jurisdiction of the local government. U)lntegration of vehicular control plan and other plans. The vehicular control plan may be a part of a local government's beach access and use plan required under the Texas Natural Resources Code, 961.015, any beach user fee plan required under the Texas Natural Resources Code, 9 61.022, and any dune protection program required under the Texas Natural Resources Code, Chapter 63. The General Land Office encourages local governments to combine and integrate these various plans and programs. (k) State agency approval of vehicular control plan adopted or amended after the effective date of this subchapter. A local government shall submit the vehicular control plan to the General Land Office and the attorney general's office no later than 90 working days prior to taking any action on the plan. This provision does not prevent a local government from exercising its existing authority over vehicular controls in emergencies. The standards and procedures for such emergency vehicular controls shall be submitted to the state in the vehicular control portion of a local government's dune protection and beach access plan. A plan may be approved if the vehicular controls are found to be consistent with the Open Beaches Act and with this subchapter. Prior to final adoption or implementation of a new or amended vehicular control ordinance, the local government shall obtain state certification of the plan for vehicular control pursuant to the Open Beaches Act, Texas Natural Resources Code, 961.022. R24012D3.doc ATTACHMENT F -- 36 . 1 r (I) Maintaining the public beach. Local governments shall prohibit beach maintenance activities unless maintenance activities will not materially weaken dunes or dune vegetation or reduce the protective functions of dunes. Local governments shall prohibit beach maintenance activities which will result in the significant redistribution of sand or which will significantly alter the beach profile or the line of vegetation. All sand moved or redistributed due to beach maintenance activities shall be returned to the area between the line of vegetation and mean high tide. The General Land Office encourages the removal of litter and other debris by handpicking or raking and strongly discourages the use of machines (except during peak visitation periods which disturb the natural baiance of gains and losses in the sand budget and the natural cycle of nutrients. (m) Prohibitions on signs. A local government shall not cause any person to display or cause to be displayed on or adjacent to any public beach any sign, marker, or warning, or make or allow to be made any written or oral communication which states that the public beach is private property or represent in any other manner that the public does not have the right of access to and from the public beach or the right to use the public beach as guaranteed by this subchapter, the Open Beaches Act, and the common law right of the public. Source: The provisions of this 915.7 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996,21 TexReg 3004. 9 15.8. Beach User Fees (a) Eligibility. Local governments shall not initiate or amend a beach user fee unless the governing body of the local government with jurisdiction over the area subject to the fee has a state approved dune protection and beach access plan. (b) Reciprocity of fees. Within each county, local governments are required to establish a state-approved system for reciprocity of fees and fee privileges among the county and the different local governments authorized to charge beach user fees. The establishment of a system of beach user fee reciprocity shall be a condition of state approval of local dune protection and beach access plans. (c) Amount of beach user fees. (1) A local government shall not impose a fee or charge for the exercise of the public right of access to and from public beaches. A local government may charge beach users a fee in exchange for providing services to beach users in general. A local government may only impose a beach user fee if the fee is reasonable taking into account the cost to the local government of providing public services and facilities directly related to the public beach. A reasonable fee is one that recovers the cost of providing and maintaining beach-related services. In addition, any fee collected for off-beach parking to provide access to and from the public beach is considered a beach user fee. (2) Local governments shall not impose a beach user fee which: (A) exceeds the necessary and actual cost of providing reasonable beach- related public facilities and services; (B) unfairly limits public use of and access to and from public beaches in any manner; (e) is inconsistent with this subsection or the Open Beaches Act; or (0) discriminates on the basis of residence. (d) Beach user fee plan. A local government that proposes a new or amended beach user fee shall first prepare a plan that includes, at a minimum, the following information: RZ4012D3.doc ATTACHMENT F -- 37 . , <". "--~"---.."-.-'--.,,,-,, ~ (1) a description of the current beach access system within its jurisdiction demonstrated through evidence such as photographs, surveys, and statistics regarding the number of beach users; (2) a listing and description of all existing beach user fees charged by the local government and by all other local governments in the same county; (3) all legal authority, including local ordinances that authorize the collection of existing beach user fees; (4) an analysis and statement of how the proposed user fee is or is not consistent with state standards set forth in this subchapter for preserving and enhancing public beach access; (5) how the beach user fee relates to beachfront construction, vehicular controls, and parking, and dune protection within the jurisdiction of the local government; (6) a statement of any short-term or long-range goals relating to the collection and use of beach user fees. (e) State agency approval of beach user fees. A local government shall not impose a beach user fee or amend an existing beach user fee that is inconsistent with the beach user fee portion of its dune protection and beach access plan. To receive state approval for initiating its beach user fee plan or amending a beach user fee, a local government shall submit its beach user fee plan to the General Land Office and the attorney general's office no later than 90 working days prior to any local government action on the beach user fee. The General Land Office shall certify whether the initiation or amendment of a beach user fee is consistent with this subchapter and the Open Beaches Act. Certification of consistency shall be by adoption into the rules authorized by the Open Beaches Act. (I) Beach user fee revenues. Revenues from beach user fees may be used only for beach-related services. For each fiscal year, a local government shall not spend more than 10% of beach user fee revenues on reasonable administrative costs directly related to beach-related services. Each local government shall send quarterly reports to the General Land Office stating the amount of beach user fee revenues collected and itemizing how beach user fee revenues are expended. The General Land Office may prescribe reporting forms or methods. The General land Office shall suspend the local government's privilege to collect fees and shall revoke approval of any pertinent dune protection and beach access plan if the beach user fee revenues have been spent on services which are not beach-related. Reports are due no later than 60 days after the end of each quarter of the State fiscal year. (g) Beach user fee accounts. Local governments shall 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 bank accounts. (2) Beach user fee revenues shall be maintained in a separate 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) Free beach access. Local governments that collect a beach user fee for on- beach parking or driving or for off-beach parking for beach access shall maintain free public beach access by providing areas where no fee is charged for parking on or off the beach and for pedestrian access. This requirement applies to each state-approved dune protection and beach access plan, not to each local government with jurisdiction over the public beach. (i) Access for disabled persons. Local governments shall establish, preserve, and enhance access for R24012D3.doc ATTACHMENT F -- 38 . --..,---- .......---,..-.-....- ~ disabled persons. Provisions for access for disabled persons shall be included in local government dune protection and beach access plans. U) Identification of fee and non-fee areas. For any local government collecting a beach user fee for on- beach parking or driving, both fee and non- fee beach areas shall be conspicuously marked with signs that clearly indicate, at a minimum, the location of both the fee and non-fee areas and the identity of the local government collecting the fee. In addition, maps identifying fee and non-fee areas shall be provided to the public by any local government collecting a beach user fee. (k) Coordination with other beach-related plans. The beach user fee plan shall be a part of a local government's beach access and use plan required under the Open Beaches Act, S 61.015, any vehicular control plan required under the Open Beaches Act, S 61.022, and any dune protection program required under the Texas Natural Resources Code, Chapter 63. The General Land Office requires local governments to combine and integrate these various plans. Source: The provisions of this S 15.8 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996,21 TexReg 3004. !i 15.9. Penalties (a) In addition to any penalties assessed by a local government, any person (as defined in this subchapter) who violates either the Dune Protection Act, the Open Beaches Act, this subchapter, or a permit or certificate condition is liable to the General Land Office for a civil penalty of not less than $50 nor more than $1,000 per violation per day. Each day the violation occurs or continues constitutes a separate violation. Violations of the Dune Protection Act, the Open Beaches Act, and the rules adopted pursuant to those statutes are separate violations, and the General Land Office may assess separate penalties. The assessment of penalties under one Act does not preclude another assessment of penalties under the other Act for the same act or omission. Conversely, compliance with one statute and the rules adopted thereunder does not preclude the General Land Office from assessing penalties under the other statute and the rules adopted pursuant to that statute. (b) Local governments are included in the definition of 'person' in S 15.2 of this title (relating to Definitions), and as such, they are liable for penalties for any violations of this subchapter, the Dune Protection Act, and the Open Beaches Act. A local government will be liable for penalties for such violations, including, but not limited to, failure to submit a dune protection and beach access plan to the General Land Office and the attorney general's office; failure to maintain and enforce its plan; and failure to implement the plan. These violations are in addition to any other violations of this subchapter for which a local government may be liable for penalties. (c) In determining whether the assessment of penalties is appropriate, the General Land Office will consider the following mitigating circumstances: acts of God, war, public riot, or strike; unforeseeable, sudden, and natural occurrences of a violent nature; and willful misconduct by a third party not related to the permittee by employment or contract. Source: The provisions of this S 15.9 adopted to be effective February 17, 1993, 18 TexReg 661. !i 15.10. General Provisions (a) Construction. A local government's ordinances, orders, resolutions, or other enactments covered by this subchapter shall be read in harmony with this subchapter. If there is any conflict between them which cannot be reconciled by ordinary rules of legal interpretation, this subchapter controls. Certification of a local government's beach access and use plan by the General Land Office may not be construed to expand or detract from the statutory or constitutional authority of that local government or any other governmental entity, nor may any person construe such certification to authorize a local government or any other governmental entity to alienate public property rights in public beaches. RZ4012D3.doc ATTACHMENT F -- 39 - ~--'-- . (b) Boundary of the public beach. The attorney general shall make determinations on issues related to the location of the boundary of the public beach and encroachments on the public beach pursuant to the requirements of the Open Beaches Act, 9 61.016 and 961.017, and 9 15.3(b) of this title (relating to Administration). The General Land Office and the local governments will consult with the attorney general whenever questions of encroachment and boundaries arise with respect to the public beach. (c) Public beach presumption. Except for beaches on islands or peninsulas not accessible by public road or ferry facility, in administering its plan a local government shall presume that any beach fronting the Gulf of Mexico within its jurisdiction is a public beach unless the owner of the adjacent land obtains a declaratory judgment otherwise under the Open Beaches Act, 9 61.019. That section provides that any person owning property fronting the Gulf of Mexico whose rights are determined or affected by this subchapter may bring suit for a declaratory judgment against the state to try the issue or issues. (d) Violations. No person shall violate any provision of this subchapter, a local government dune protection and beach access plan, or any permit or certificate or the conditions contained therein. (e) Reporting violations. Any local government with knowledge of a violation or a threatened violation of a permit, a certificate, its dune protection and beach access plan, the Dune Protection Act, the Open Beaches Act, or this subchapter shall inform the General Land Office of the violation(s) within 24 hours. (I) Withdrawal of plan certification. The General Land Office may withdraw certification of all or any part of a local government's dune protection and beach access plan if the local government does not comply with its plan, this subchapter, the Dune Protection Act, or the Open Beaches Act. Without further action by the General Land Office, a local government loses, by operation of law, the authority to issue permits or certificates authorizing construction within the geographic scope of this subchapter and the privilege to collect beach user fees if state agency certification of its dune protection and beach access plan is withdrawn. (g) Notice of withdrawal of plan certification. The General Land Office will notify the local government and the attorney general's office 60 days prior to withdrawing General Land Office certification of the local government's plan. The local government may submit to the General Land Office any evidence demonstrating full compliance with its plan, this subchapter, the Dune Protection Act, and the Open Beaches Act. The General Land Office will consider the good faith efforts of any local government to immediately and fully comply with those laws during the 60-day period after the notification of intent to withdraw certification. (h) The provisions contained in this subchapter do not limit the authority of the General Land Office and the attorney general's office to enforce this subchapter, the Dune Protection Act, and the Open Beaches Act pursuant to the Texas Natural Resources Code, 963.181 and 9 61.018. (i) Appeals. The Dune Protection Act, 9 63.151, and the Open Beaches Act, 961.019, contain the provisions for appeals related to this subchapter. U) Grandfathered plans. Nothing in the amendments shall require modifications of any dune protection and beach access plan certified on or prior to the effective date of these amendments. All permits and certificates shall be issued in accordance with the General Land Office rules for management of the beach/dune system as described in this chapter. Source: The provisions of this 9 15.10 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996,21 TexReg 3004. ~ 15.11. Certification of Local Government Dune Protection and Beach Access Plans (a) Certification of local government plans. The following local governments have submitted plans to the General Land Office which are certified as consistent with state law: R24012D3.doc ATTACHMENT F -- 40 . 1 ~ (1) Brazoria County (adopted August 9,1993, amended September 27, 1993); (2) Chambers County (adopted August 9, 1993); (3) City of Port Aransas (adopted February 15, 1995); (4) City of Port Arthur (adopted April 12, 1993); (5) Jefferson County (adopted August 16,1993, amended March 7, 1994); (6) Matagorda County (adopted February 13, 1995). The General Land Office certifies that the Beach User Fees section of the Matagorda County plan adopted by the Matagorda County Commission Court on March 15, 1999, is consistent with state law. (7) Town of Quintana (adopted August 11, 1993); (8) Village of Jamaica Beach (adopted August 16,1993, amended December 6, 1993); (9) Town of South Padre Island (adopted October 5, 1994); (10) City of Corpus Christi (adopted August 10,1993); (11) Cameron County: (A) Plan (adopted September 20, 1994). The 440-foot building line established in the Cameron County plan, Section 111.1, shall not be operative unless it is landward of the line of vegetation. The line of vegetation shall be established as required in the Open Beaches Act, Texas Natural Resources Code, ~ 61.017. (B) Padre Shore Ltd. Final Master Plan Amendment (adopted November 5, 1996). (12) Nueces County (A) Plan (adopted March 25, 1992, amended October 23, 1996). (B) La Concha master plan. The General Land Office certifies that the dune protection portion of the La Concha master plan adopted by the Nueces County commissioners court on March 20, 1996, is consistent with state law. (C) Palms at Waters Edge master plan: The General Land Office certifies that the dune protection portion of the Palms at Waters Edge master plan adopted by the Nueces County commissioners court on December 27, 1996, is consistent with state law. (D) Mustang Island Episcopal Conference Center master plan. The General Land Office certifies that the dune protection section of the Mustang Island Episcopal Conference Center master plan adopted by the Nueces County Commissioners Court on January 31, 2000, is consistent with state law. (13) Village of Surfside Beach (adopted December 12, 2000). (b) Conditional certification of local government plans. The following local governments have submitted plans to the General Land Office which are conditionally certified as consistent with state law. (1) City of Galveston (adopted August 12,1993, amended February 9, 1995, and amended June 19,1997.). R24012D3.doc ATTACHMENT F -- 41 - . ... .---->f'-......"'-..- -+..-. .-.-..,..- . (A) This certification is valid for 180 days, during which time the City of Galveston will modify its plan consistent with the General Land Office comments submitted to the City of Galveston (October 14, 1993). (B) This certification includes a variance from 9 9 15.4(c)(8), 15.5(b)(3), and 15.6(f)(3) of this title, (relating to Dune Protection Standards, Beachfront Construction Standards, and Concurrent Dune Protection and Beachfront Construction Standards). The City of Galveston's plan: (i) provides that paving or altering the ground below the lowest habitable floor is prohibited in the area between the line of vegetation and 25 feet landward of the north toe of the dune; (ii) provides that paving used under the habitable structure and for a driveway connecting the habitable structure and the street is limited to the use of unreinforced fibercrete in 4 feet by 4 feet sections, which shall be a maximum of four inches thick with sections separated by expansion joists, or pervious materials approved by the City Department of Planning and Transportation, in that area 25 feet landward of the north toe of the dune to 200 feet landward of the line of vegetation; (iii) assesses a "Fibercrete Maintenance Fee" of $200.00 to be used to pay for the clean-up of fibercrete from the public beaches, should the need arise; and (iv) allows the use of reinforced concrete in that area landward of 200 feet from the line of vegetation. (2) Galveston County (adopted August 16, 1993). This certification is valid for 180 days, during which time Galveston County will modify its plan consistent with the General Land Office comments submitted to Galveston County (October 18, 1993). (c) Implementation of conditionally certified plans. Local governments are required to implement conditionally certified plans consistent with the Texas Natural Resources Code, Chapters 61 and 63, and the General Land Office rules for management of the beach/dune system, 99 15.1-15.10 of this title (relating to Management of the Beach/Dune System). (d) Removal of conditions of certification. (1) Local governments shall submit their modified plans on or before the expiration of the 180-day time period. The General Land Office shall provide to the pertinent local government a determination as to the sufficiency of the modification(s) within 60 days of receipt of the plan. The General Land Office will remove all conditions of the plan's certification by amending this subsection. Such amendments will list the name of the pertinent local government in subsection (a) of this section, and delete the same from subsection (b) of this section. If the General Land Office determines that modifications of plans are insufficient, the General Land Office shall provide specific exceptions to the modifications. If those portions of the plan to which the General Land Office has noted exceptions can be addressed through further comment, plan revision and review, conditional certification will be reissued pursuant to a General Land Office amendment to this subsection, subject to further plan modification. (2) In the event that a local government chooses not to modify its plan as requested in the General Land Office comments, the local government shall provide in writing the scientific or legal justification as to why such modifications are not feasible. The justification shall be submitted to the General Land Office on or before the due date of the revised plan. The justification will be reviewed by the General Land Office, and a determination as to the sufficiency of the justification R24012D3.doc ATTACHMENT F -- 42 - will be provided to the local government within 60 days of receipt by the General Land Office. Local government plans shall continue in effect under conditional certification until the sufficiency of the justification is resolved or this section is amended. (e) Withdrawal of conditional certification. Conditional certification of a local government plan shall be withdrawn by the General Land Office after the 180-day time period if the pertinent local government does not submit to the General Land Office either a formally adopted plan which has been modified consistent with General Land Office comments or the written scientific or legal justification as to why such modification is not feasible. In any event, withdrawal of conditional certification shall only occur after the General Land Office adopts an amendment to this subsection withdrawing conditional certification, with accompanying specific reasons, and the General Land Office has given the pertinent local government written notice of the withdrawal of the conditional certification. Source: The provisions of this 9 15.11 adopted to be effective November 28, 1994, 19 TexReg 8981; amended to be effective June 27,1995,20 TexReg 4349; amended to be effective April 16, 1996,21 TexReg 3024; amended to be effective October 7,1996,21 TexReg 9167; amended to be effective March 27,1997,22 TexReg 2877; amended to be effective July 17,1997,22 TexReg 6460; amended to be effective January 5,1998,23 TexReg 147; amended to be effective November 29,1998,23 TexReg 11827; amended to be effective December 6, 1998, 23 TexReg 12446; amended to be effective September 5, 1999, 24TexReg6805; amended to be effective August 6, 2000, 25 TexReg 7180; amended to be effective June 28, 2001,26 TexReg 4726. SUBCHAPTER B, COASTAL EROSION PLANNING AND RESPONSE 9 15,21. Evaluation Process For Coastal Erosion Studies And Projects The General Land Office (Land Office) will evaluate potential projects for funding from the coastal erosion response account based on a three-stage evaluation process as described in this section. (1) Initial evaluation -. project goal summaries submitted to the Land Office by potential project partners. (A) A potential project partner seeking funds from the coastal erosion response account must submit a project goal summary to the Land Office. The project goal summary must include the following: (i) the name of the entity that will be the potential project partner and the name, address, and telephone number of the person who will represent the potential project partner and be the primary point of contact with the Land Office; (ii) the location and geographic scope of the erosion problem; (iii) a description of the erosion problem and the severity of erosion in the area; (iv) the economic impacts of erosion in the area; (v) a description of how public infrastructure or resources have been impacted or threatened by erosion in the area; (vi) the natural resource impacts of erosion in the area; and (vii) the desired outcome or goals of seeking funding from the coastal erosion response account. (8) The Land Office will accept project goal summaries by: R24012D3.doc ATTACHMENT F -- 43 - . ~.._~----~~..-.._' (i) mail sent to the General Land Office, Altn: Director, Coastal Projects Division, Stephen F. Austin Building, 1700 North Congress Avenue, Room 617, Austin, Texas 78701-1495; (ii) fax sent to (512) 475-0680; or (iii) email senttocoastalprojects@glo.state.tx.us. (C) The Land Office will evaluate project goal summaries received based on the following criteria: the severity of erosion in the area, the economic impacts of erosion, the degree to which public infrastructure or resources are at risk, and natural resources threatened by erosion. Each criterion will be weighted by the Land Office, and the Land Office will assign a total score to each project goal summary. The Land Office will conduct the initial evaluation in consultation and coordination with the potential project partner, as deemed necessary by the Land Office. (D) The Land Office encourages potential project partners to submit additional information if it is available on the presumed causes of erosion, other potential project partners in the area, a recommendation on projects to address erosion in the area, and possible funding alternatives that have already been explored. The Land Office will not use this additional information during the initial evaluation stage, but it may be used to expedite the evaluation process in later stages. (E) The Land Office will inform the potential project partner of the outcome of the initial evaluation and subsequently post the outcome on the Land Office's website at www.glo.state.tx.us. (F) If, as a result of the initial evaluation, the Land Office chooses not to continue the evaluation into the next stage, the potential project partner will be notified in writing of this result. The Land Office will retain the project goal summary and may reevaluate it if future conditions warrant. (G) If the Land Office's initial evaluation results in a score that is sufficiently high to warrant an evaluation of alternatives, the Land Office will invite the potential project partner to continue to work cooperatively with the Land Office by becoming a qualified project partner. (2) Evaluation of alternatives with qualified project partners. (A) The process of evaluating alternatives will begin with the Land Office and potential project partner entering into a project cooperation agreement. Upon entering into a project cooperation agreement, the potential project partner will become a qualified project partner. The Land Office and qualified project partner will cooperatively evaluate alternatives for addressing the erosion problem(s) identified in the project goal summary. (B) The project cooperation agreement with the qualified project partner will explicitly define the activities to be undertaken by the Land Office and the qualified project partner in the evaluation of alternatives. The Land Office may, at its sole discretion, fund studies or activities that are part of the alternatives-evaluation process. Funds expended by a qualified project partner in conformance with the project cooperation agreement can be used to offset the qualified project partner's cost-sharing requirement. (C) During the alternatives-evaluation process, the Land Office will evaluate projects based on the following criteria: R24012D3.doc ATTACHMENT F -- 44 - . ,., --_.~"-------'--" ,'. (i) the feasibility of alternative projects in meeting the goals of the project goal summary; (ii) whether the qualified project partner has already made or received a binding commitment to fund all or a portion of a given project; and (iii) whether funding can be leveraged with sources other than the coastal erosion response account. (D) At the completion of the alternatives-evaluation process, the Land Office in consultation with the qualified project partner will choose one or more preferred alternatives for addressing the erosion problem in the area identified. Each preferred alternative will be scored based on the factors detailed in 915.21 (2)(C) of this section. If new information becomes available during the alternatives-evaluation stage, the Land Office may adjust the score for the initial evaluation of the project goal summary. (E) Based on the scores from the first two stages of the evaluation process, the Land Office will determine whether any of the preferred alternatives are viable projects for funding from the coastal erosion response account. If the Land Office determines that one or more of the preferred alternatives are viable projects, the Land Office will request that the qualified project partner continue to work cooperatively to seek funding. (3) Final prioritization of preferred alternatives by the Land Office. (A) If the qualified project partner chooses to continue the application process for funding a preferred alternative, the Land Office will further score the preferred alternative based on the fOllowing criteria: (i) the distribution of other erosion response projects in Texas that have received funding from the coastal erosion response account; (ii) whether federal and local financial participation in the project is maximized; (iii) whether the project achieves efficiencies and economies of scale; (iv) the cost of the preferred alternative and the amount of money available in the coastal erosion response account; (v) if the project is located within the jurisdiction of a local government that administers a beach/dune program, whether the local government is adequately administering its duties under the Open Beaches Act (Texas Natural Resources Code, Chapter 61) and Dune Protection Act (Texas Natural Resources Code, Chapter 63); and (vi) whether the project will address an emergency situation in the area. (B) After the Land Office assigns weighted, numerical scores to the criteria detailed in 9 15.21 (3)(A) of this section, the Land Office will generate a final cumulative score for each preferred alternative based on the scores achieved by the project in each of the three stages of the evaluation process. Source: The provisions of this 915.21 adopted to be effective November 21,1999,24 TexReg 10132 915.22. Funding Projects From the Coastal Erosion Response Account R24012D3.doc ATTACHMENT F -- 45 - - .."<~____'_m'.' (a) The land Office will rank each project that has been evaluated through the three-stage evaluation process based on the project's cumulative numerical score. (b) If the land Office determines that a project should receive funds from the coastal erosion response account, the land Office and the qualified project partner will amend the project cooperation agreement that was entered into earlier in the evaluation process. The land Office shall explicitly describe in the amended project cooperation agreement the terms and conditions under which the land Office will fund the project. (c) Cost-sharing requirement for qualified project partners. The CEPRA requires qualified project partners to pay at least 25% of the shared project costs. (1) The project cooperation agreement shall specify the terms of the qualified project partner's commitment to pay at least 25% of shared project costs. (2) No costs incurred by a potential project partner before becoming a qualified project partner by entering into a project cooperation agreement with the land Office can be used to offset the 25% cost-sharing requirement of the CEPRA. (3) In-kind goods or services provided by the qualified project partner after entering into a project cooperation agreement with the land Office may offset the 25% cost-sharing requirement, if the qualified project partner provides the land Office with a reasonable basis for estimating the monetary value of those goods or services. The decision on whether to allow any in-kind good or service to offset the 25% cost-sharing requirement is in the sole discretion of the land Office. (4) local governments that receive financial assistance from the state to clean and maintain public beaches fronting the Gulf of Mexico under Chapter 25 of this title, relating to Beach Cleaning and Maintenance Assistance Program, will not be allowed to use funds received under that program to meet the 25% cost-sharing requirement. Source: The provisions of this 915.22 adopted to be effective November 21,1999,24 TexReg 10132 !i 15.23. Coastal Boundary Surveys The CEPRA mandates that no person may undertake an action relating to erosion response on or immediately landward of a public beach or submerged land until the person has conducted and filed a coastal boundary survey with the land Office in conformance with Texas Natural Resources Code, 9 33.136. (1) If a coastal boundary survey has previously been conducted and filed in the area of an erosion response project that may be funded from the coastal erosion response account, the land Office shall determine whether that survey adequately reflects current conditions. If the survey adequately reflects current conditions, the land Office may determine that a new coastal boundary survey is not required before the project is constructed. The decision on whether a new survey is required before construction of an erosion response project is in the sole discretion of the land Office. (2) The boundary depicted on any coastal boundary survey that is required before funding a project from the coastal erosion response account shall be delineated according to the law under which the upland property was originally granted by the sovereign. Source: The provisions of this 9 15.23 adopted to be effective November 21, 1999, 24 TexReg 10132 SUBCHAPTER D. CERTIFICATION OF COASTAL WETLANDS R24D12D3.doc ATTACHMENT F -- 46 . I - !i 15.51. Policy; Scope of Rules; Definitions (a) Policy. The protection and preservation of certain of the coastai wetlands of this state are essential to the public interest. The General Land Office incorporates by reference the policy statement as set forth in Texas Civil Statutes Article 5415e-3, S 2. (b) Scope of rules. These rules set forth the factors which will be considered by the commissioner in selecting and certifying to the Texas Parks and Wildlife Department those coastal wetlands which are most essential to the public interest; in assigning priorities for acquisition of such coastal wetlands; and in revoking certification of such coastal wetlands whenever it is in the public interest. These rules also set forth the process which the commissioner will employ in certifying those coastal wetlands which are most essential to the public interest. (c) Definition. The following definitions are intended to assist the public in understanding the impact and scope of these rules. For the purposes of these rules only: (1) Commissioner -- The commissioner of the General Land Office. (2) Coastal wetlands -- Highly productive coastal natural systems composed of waters, substrate, vegetation, and animal life. Coastal wetlands mean marshes and other areas of high biologic productivity where seawater is present during times other than and in addition to storms or hurricanes as defined by the Beaufort Wind Scale. Coastal wetlands do not, however, include any areas seaward of the line of mean annual low spring tide, nor does it include any mainland area where seawater is present only during storms or hurricanes as defined by the Beaufort Wind Scale. (3) Marshes -- Includes only coastal marshes. Coastal marshes are land areas within coastal wetlands that contain seawater and are characterized by plants that are emergent, rooted, herbaceous hydrophytes. Marshes must include one or more of the following species of vegetation. (A) Grasses and grass-like plants. (Scientific name -- common name.) (i) Cyperus haspan I.. -- sheathed flatsedge. (ii) C. polystachyos Rollb. var. texensis (Torr.) Fern. -- umbrella sedge. (iii) Dichromena colorata (1..) A.S. Hitchc. -- starrush whitetop. (Iv) Distichlis spicata (1..) Greene var spicata -- seashore saltgrass. (v) Eleocharis albida Torr. -- white spikesedge. (vi) E. caribaea (ROllb.) Blake -- spikesedge. (vii) E. interstincta (Vahl) Roemer & Schultes -- gulfcoast spikesedge. (viii) Fimbristylis caroliniana (Lam.) Fern. -- fimbry. (ix) F. Castanea Vahl -- fimbry. (x) F. puberula (Michx.) Vahl var. puberula -- fimbry. (xi) Fuirena squarrosa Michx. -- hairy umbrella sedge. R2401ZD3.doc ATTACHMENT F -- 47 ~ I 1fT R24012D3.doc ----,-r--- (xii) F. simplex Vahl -- western umbrella sedge. (xiii) Juncus marginatus Rostk. -- grass leaf rush. (xiv) J. Roemerianus Scheele -- needlegrass rush. (xv) J. validus Cov. var. validus -- roundhead rush. (xvi) J. valid us Cov. var. fascinatus M.C. Johnst. -- roundhead rush. (xvii) Monanthochloe littoralis Englem. -- shoregrass. (xviii) Parapholis incurva (L.) C.E. Hubb. -- sicklesgrass. (xix) Paspalum vaginatum Swartz -- seashore paspalm. (xx) Phragmites australis (Cav.) Trin. -- common reed. (xxi) Scirpus californicus (CA Meyer) Steud. -- California bullrush. (xxii) S. maritimus L. var. macrostachyus Michx. -- saltmarsh bullrush. (xxiii) S. americanus Pers. var. longispicatus Britt. -- three-square bullrush. (xxiv) Spartina alterniflora Loisel. var. alterniflora -- smooth cordgrass. (xxv) S. cynosuroides (L.) Roth -- big cordgrass. (xxvi) S. patens (Ait.) Muhl. -- marshay cordgrass. (xxvii) S. spartinae (Trin.) Hitchc. -- gulf cordgrass. (xxviii) Sporobolus virginicus (L.) Kunth -- seashore dropseed. (xxix) S. pyramidatus (Lam.) Hitchc. -- whorled dropseed. (xxx) Zizaniopsis miliacea (Michx.) Doell and Aschers -- marshmillet. (B) Other marsh plants. (Scientific name -- common name.) (i) Agalinis heterophylla (Nutt.) Small -- prairie Agalinis. (ii) A. maritima Rat. var. grandiflora (Benth.) Shinners -- seaside gerardia. (iii) Amaranthus spinosus L. -- spiny amaranth. (iv) Avicennia germinans (L.) L. -- black mangrove. (v) Batis maritima L. -- saltwort. (vi) Borrichia frutescens (L.) DC. -- bushy sea oxeye. (vii) Cakile fusiformis Greene -- sea rocket. (viii) C. geniculata (Robins.) Millsp. -- sea rocket. , ATTACHMENT F -- 48 ~ (ix) Heliotropium curassavicum L. -- salt heliotrope. (x) Iva frutescens L. var. frutescens -- big leaf sumpweed. (xi) I. frutescens L. var. oraria (Bartlett) Fern. & Grise. -- big leaf sumpweed. (xii) I. angustifolia DC. -- sumpweed. (xiii) Limonium Nashii Small var. Nashii -- sea lavendar. (xiv) L. Nashii Small var. angustatum (Grah) Ahles -- sea lavendar. (xv) Lycium carolinianum (Moc & Sesse) C.L. Hitchc. -- Carolina wolfberry. (xvi) Machaeranthera phyllocephala (DC.) Shinners -- camphor daisy. (xvii) Philoxerus vermicularis (L.) R. BR. -- silverhead. (xviii) Salicornia Bigelovii Torr. -- glasswort. (xix) S. virginica L. -- Virginia glasswort. (xx) Samolus ebracteatus H.B.K. -- water pipernel. (xxi) Sesuvium erectum Correll -- sea purslane. (xxii) S. maritimum (Wal!.) B.S.P. -- coast sesuvium. (xxiii) S. Portulacastrum L. -- sea purslane. (xxiv) S. trianthemoides Correll -- sea purslane. (xxv) Solidago sempervirens L. var. mexicana (L.) Fern. -- seaside goldenrod. (xxvi) Suaeda conferta (Small) I.M. Johns!. -- seablite. (xxvii) S. linearis (Ell.) Moq. -- annual seepweed. (xxviii) Typha angustifolia L. -- narrow-leaved cattail. (xxix) T. dominigensis Pers. -- tule. (4) Mean annual low spring tide -- The long-time (18.6 years) average of the lowest spring tide occurring within a year for a given area. Spring tides occur for several days every 14.3 days when the low waters are much lower than usual due to the position of the earth, sun, and moon. (5) Other areas of high biologic productivity -- Areas in coastal wetlands that contain seawater and are adjacent to or within marshes. (6) Seaward -- The direction away from the shore and toward the body of water bounded by such shore. (7) Seawater -- Any water containing a concentration of one-twentieth of 1.0% or more by weight of total dissolved inorganic salts derived from the marine waters of the Gulf of Mexico. Seawater may be present either as freestanding water on the surface of the soil, as ground moisture R24D12D3.doc ATTACHMENT F -- 49 . I ,... absorbed by the soil, or as both. Source: The provisions of this !i 15.51 adopted to be effective March 22, 1979, 4 TexReg 785. !i 15.52. Criteria for Certification; Assignment of Priorities for Acquisition; Revocation of Certification In selecting and certifying those coastal wetlands most essential to the public interest, assigning priorities for acquisition of such wetlands, and determining whether to revoke such a certification, the commissioner will consider the following criteria: (1) Coastal wetlands. The commissioner may consider whether such lands are coastal wetlands within the definition, intent, and purpose of the Coastal Wetlands Acquisition Act, Texas Civil Statutes Article 5415e-3, as elaborated by the definition of coastal wetlands contained in!i 15.51 of this title (relating to Policy; Scope of Rules, Definitions). (2) Title. The commissioner will consider whether the state owns such coastal wetland or claims title to them, which title can be validated by bringing an appropriate action therefor in a court of law. (3) Characteristics of the coastal wetland. The commissioner will consider whether the biological, geological, or physical characteristics of such coastal wetlands, including the interrelationship of such coastal wetlands with other coastal wetlands, combine to make the preservation of such coastal wetlands essential to the public interest. In making this determination, the commissioner will be concerned with the effect of these factors on the ability of such coastal wetlands to perform functions beneficial to the public. Since scientific understanding of the operation and functions of the coastal wetlands of the Texas coast is continually evolving, the criteria for assessment of the value of coastal wetlands will evolve as the state of scientific knowledge improves. The criteria considered may include the ability of such coastal wetlands to function in: (A) production of plant and animal biomass; (8) provision for wildlife habitat and/or nursery grounds; (C) protection of endangered or important species; (D) temporary storage of flood and storm waters; (E) erosion prevention; (F) water quality enhancement; (G) entrapment of sediments; (H) storage and supply of inorganic nutrients and organic detritus; (I) aesthetics and recreation; (J) potential for aquaculture; and (K) protection of other, interrelated coastal wetlands that would be detrimentally affected if those with which they are interrelated were altered, damaged, or destroyed. (4) Danger. The commissioner will consider the degree to which such coastal wetlands are in danger of being altered, damaged, or destroyed, and the imminence of such danger. Those R24012D3.doc ATTACHMENT F -- 50 ----, r I ! " -.,....~ TI coastal wetlands which are both essential to the public interest and subject to alteration, damage, or destruction that will impair their ability to perform functions beneficial to the public will generally be considered a higher priority for state acquisition than those which are subject to less danger. Although receipt of an application under section 10 of the Rivers and Harbors Act of 1899, United States Code 1970, Title 33, section 403 or section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 United States Code 9 1344, for any Texas coastal wetland will be considered prima facie evidence of imminent danger to that wetland, the imminence of danger to a coastal wetland is not contingent upon receipt of such applications. Many activities, if properly designed and carried out, may be performed in coastal wetland areas without posing a substantial danger to the wetland. In assessing the imminence of threat to a wetland, the commissioner may consider any of the following: (A) Chemical and physical factors: (i) changes in water quality, especially pollutant or toxicant load, temperature, transparency, turbidity, dissolved oxygen concentration, and salinity; (ii) changes in substrate or soil condition, particularly in relation to topography of the area, as well as fertility and structure of the soils; (iii) changes in quantity and movement of inorganic nutrients and organic matter (particularly detritus) within, into, and out of the coastal wetland; and (iv) changes in hydrology, including both the amount, spatial and temporal pattern of water movement. (B) Biotic factors: (i) changes in biological oxygen demand; (ii) changes in productivity of living plants and animals, both within the coastal wetland and in associated natural systems; and (iii) changes in the composition, biomass, and diversity of plant and animal life within the coastal wetland and in associated natural systems. (C) Criteria for decision. When evaluating the impacts of proposed activities on coastal wetlands, the commissioner may consider the criteria for decision set forth in 9 155.3(g) of this title (relating to Easements). (5) Cost. The commissioner will consider the cost of acquiring particular coastal wetlands relative to the benefit provided the public by such acquisition. Source: The provisions of this 9 15.52 adopted to be effective March 22, 1979, 4 TexReg 785. 9 15.53. Certification Procedure (a) General procedure. The commissioner will from time to time as appropriate, certify in writing to the Texas Parks and Wildlife Department that specified coastal wetlands are essential to the public interest, and he will indicate to the Texas Parks and Wildlife Department priorities for acquisition, if any, for such certified coastal wetlands. To the extent possible and appropriate, the commissioner will certify such wetlands sufficiently far in advance of the next succeeding legislative session to enable the Texas Parks and Wildlife Department to seek a legislative appropriation, if necessary for the acquisition of such certified coastal wetlands. R24012D3.doc ATTACHMENT F -- 51 . . - (b) Nominations. The commissioner will accept and consider written nominations of coastal wetlands for certification. Written justification accompanying such nominations, adequate to support certification pursuant to these sections, is encouraged. (c) County commissioners court approval. The commissioner will forward a copy of any such certification to the county judge of every county in which any part of the wetlands so certified is located, and will request the recommendation of the commissioners of said county therein. Source: The provisions of this S 15.53 adopted to be effective March 22,1979,4 TexReg 785. S 15.54. Revocation of Certification by Commissioner The commissioner may, from time to time, revoke a certification promulgated pursuant to these rules if he determines, in accordance with the criteria specified in S 15.52 of this title (relating to Criteria for Certification; Assignment of Priorities for Acquisition; Revocation of Certification), that it is in the public interest to do so. The certification will be revoked by sending to the Texas Parks and Wildlife Department written notice of the coastal wetland area, or portion thereof, as to which certification is revoked. Notice of such revocation will also be sent to the appropriate county commissioners court. Source: The provisions of this S 15.54 adopted to be effective March 22,1979,4 TexReg 785. R2401 ZD3.doc ATTACHMENT F -- 52 I r , ""' APPENDIX XII DUNE PROTECTION ACT, V.T.C.A., NATURAL RESOURCES CODE !l61.001 ET SEQ. (NOTE: This appendix reproduces a copy of Chapter 61, Texas Natural Resources Code, as effective on September 1, 2001. It is provided for reference only. Any future amendments by the Texas Legislature that are inconsistent with any elements of the City of Corpus Christi Dune Protection and Beach Access Regulations supersede these regulations. Revised versions of Chapter 61 may be substituted without further action by the City Council.) CHAPTER 61. USE AND MAINTENANCE OF PUBLIC BEACHES SUBCHAPTER A. GENERAL PROVISIONS !i 61.001. Definitions In this chapter: (1) "Commissioner" means the Commissioner of the General Land Office. (2) "Construction" means causing or carrying out any building, bulkheading, filling, clearing, excavation, or any substantial improvement to land or the size of any structure. (3) "Department" means the Parks and Wildlife Department. (4) "Land office" means the General Land Office. (5) "Line of vegetation" means the extreme seaward boundary of natural vegetation which spreads continuously inland. (6) "Littoral owner" means the owner of land adjacent to the shore and includes a lessee, licensee, or anyone acting under the littoral owne~s authority. state. (7) "Local government" means a municipality, county, or any other political subdivision of the (8) "Public beach" means any beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use or easement to or over the area by prescription, dedication, presumption, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom. This definition does not include a beach that is not accessible by a public road or public ferry as provided in Section 61.021 of this code. Acts 1977, 65th Leg., p. 2477, ch 871, art. I, S 1, elf. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, S 4, elf. June 7, 1991. SUBCHAPTER B. ACCESS TO PUBLIC BEACHES !i 61.011. Policy and Rules (a) It is declared and affirmed to be the public policy of this state that the public, individuallY and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous R24012D3.doc ATTACHMENT G -- 1 . . ~ right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico. (b) The legislature recognizes that, in order to provide and maintain public facilities and public services to enhance access to and safe and healthy use of the public beaches by the public, adequate funds are required to provide public facilities and public services. Any local government responsible for the regulation, maintenance, and use of such beaches may charge reasonable fees pursuant to its authority to cover the cost of discharging its responsibilities with respect to such beaches, provided such fees do not exceed the cost of such public facilities and services, and do not unfairly limit public access to and use of such beaches. (c) The attorney general shall strictly and vigorously enforce the prohibition against encroachments on and interferences with the public beach easement. The attorney general shall develop and publicize an enforcement policy to prevent and remove any encroachments and interferences on the public beach. The land office may assist the attorney general in enforcing this subchapter. (d) The commissioner shall promulgate rules, consistent with the policies established in this section, on the following matters only: (1) acquisition by local governments or other appropriate entities or public dedication of access ways sufficient to provide adequate public ingress and egress to and from the beach within the area described in Subdivision (6) of this subsection; (2) protection of the public easement from erosion or reduction caused by development or other activities on adjacent land and beach cleanup and maintenance; (3) local government prohibitions of vehicular traffic on public beaches, provision of off-beach parking, and other minimum measures needed to mitigate for any adverse effect on public access and dune areas; (4) imposition of beach access, user, or parking fees and reasonable exercises of the police power by local governments with respect to public beaches; (5) contents and certification of beach access and use plans and standards for local government review of construction on land adjacent to and landward of public beaches; and (6) construction on land adjacent to and landward of public beaches and lying in the area either up to the first public road generally parallel to the beach or to any closer public road not parallel to the beach, or to within 1,000 feet of mean high tide, whichever is greater, that affects or may affect public access to and use of public beaches. (e) The commissioner may not adopt a proposed rule or any provision of a proposed rule, including any certification under this subchapter, if the attorney general has certified in writing that the rule or provision would allow encroachments on public beaches or obstructions, barriers, or restraints to public access and use of public beaches contrary to the policies declared and affirmed in this section. Acts 1977, 65th Leg., p. 2477, ch. 871, art. I, S 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, S 5, eff. June 7,1991. S 61.012. Definition In this subchapter, "beach" means state-owned beaches to which the public has the right of ingress and egress bordering on the seaward shore of the Gulf of Mexico or any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico if the public has R24012D3.doc ATTACHMENT G -- 2 I r I ~,,,--~,.. 'f' acquired a right of use or easement to or over the area by prescription, dedication, or has retained a right by virtue of continuous right in the public. Acts 1977, 65th Leg., p. 2477, ch. 871, art. I, 9 1, elf. Sept. 1, 1977. 961.013. Prohibition (a) It is an olfense against the public policy of this state for any person to create, erect, or construct any obstruction, barrier, or restraint that will interfere with the free and unrestricted right of the public, individually and collectively, lawfully and legally to enter or to leave any public beach or to use any public beach or any larger area abutting on or contiguous to a public beach if the public has acquired a right of use or easement to or over the area by prescription, dedication, or has retained a right by virtue of continuous right in the public. (b) Unless properly certified as consistent with this subchapter, no person may cause, engage in, or allow construction landward of and adjacent to a public beach within the area described in Section 61.011(d)(6) of this code in a manner that will or is likely to alfect adversely public access to and use of the public beach. The prohibition in this subsection takes elfect only on adoption of final rules by the commissioner under Section 61.011 of this code. (c) For purposes of this section, "public beach" shall mean any beach bordering on the Gulf of Mexico that extends inland from the line of mean low tide to the natural line of vegetation bordering on the seaward shore of the Gulf of Mexico, or such larger contiguous area to which the public has acquired a right of use or easement to or over by prescription, dedication, or estoppel, or has retained a right by virtue of continuous right in the public since time immemorial as recognized by law or custom. This definition does not include a beach that is not accessible by a public road or public ferry as provided in Section 61.021 of this code. Acts 1977, 65th Leg., p. 2478, ch. 871, art. I, 9 1, elf Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 1607, ch. 681, 9 2, elf. Aug. 27,1979; Acts 1983, 68th Leg., p. 4818, ch. 850, 9 1, elf. June 19, 1983; Acts 1991, 72nd Leg., ch. 295, 96, elf. June 7,1991. 961.014. Denial of Access by Posting (a) As used in this section, "public beach" means the area extending from the line of mean low tide of the Gulf of Mexico to the line of vegetation bordering on the Gulf of Mexico, or to a line 200 feet inland from the line of mean low tide, whichever is nearer the line of mean low tide, if the public has acquired a right of use or easement to or over the area by prescription, dedication, or has retained a right by virtue of continuous right in the public. (b) No person may display or cause to be displayed on or adjacent to any public beach any sign, marker, or warning, or make or cause to be made any written or oral communication which states that the public beach is private properly or represent in any other manner that the public does not have the right of access to the public beach as guaranteed by this subchapter. Acts 1977, 65th Leg., p. 2478, ch. 871, art. I, 9 1, elf. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 1607, ch. 681, 91, elf. Aug. 27,1979; Acts 1991, 72nd Leg., ch. 295, 9 7, elf. June 7, 1991. 961.015. Beach Access and Use Plans (a) Each local government with ordinance authority over construction adjacent to public beaches and each county that contains any area of public beach within its boundaries shall adopt a plan for R24D12D3.doc ATTACHMENT G -- 3 . . ~-'.... preserving and enhancing access to and use of public beaches within the jurisdiction of the locai government. Such beach access and use plans must be consistent with the policies in Section 61.011 of this code and the rules promulgated thereunder and Chapter 63 of this code and shall to the greatest extent practicable incorporate the iocal government's ordinary iand use planning procedures. A municipality may adopt and apply any appropriate ordinances within its extraterritorial jurisdiction to effect the purposes of this subchapter. (b) Local governments shall submit proposed beach access and use plans to the commissioner for certification as to compliance with such policies and rules and to the attorney general for review and comment. The commissioner shall act on a local government's proposed beach access and use plan within 60 days of submission by either approving the plan or denying certification. In the event of denial, the commissioner shall send the proposed plan back to the originating local government with a statement of specific objections and the reasons for denial, along with suggested modifications. On receipt, the local government shall revise and resubmit the plan. The commissioner's certification of local government plans shall be by adoption into the rules under Section 61.011 of this code. (c) A littoral owner proposing construction adjacent to and landward of a public beach in the area described in Section 61.011 (d)(6) of this code shall submit a development plan to the appropriate local government. The local government shall forward the development plan to the commissioner and the attorney general no less than 10 working days prior to acting on the development plan. The commissioner or the attorney general may submit comments on the proposed construction to the local government. (d) The local government shall review the proposed development plan and the commissioner's and attorney general's comments and other information the local government may consider useful to determine consistency with the local government's beach access and use plan. (e) If the proposed construction is required to be permitted by the local government under Chapter 63 of this code, the local government shall consider the issuance of the permit concurrently with the certification under this section, unless otherwise provided by rules promulgated under Section 61.011 of this code. (f) The local government, after considering all appropriate information, shall make the determination and shall certify that the construction as proposed either is consistent with the local government's beach access and use plan or is inconsistent with the local government's beach access and use plan, in which case the local government must specify how the construction is inconsistent with the plan. (g) The local government may include in the certification any reasonable terms and conditions it finds necessary to assure adequate public beach access and use rights consistent with Chapter 63 of this code. (h) The requirements of this section take effect only on adoption of final rules by the commissioner under Section 61.011 of this code. Acts 1977, 65th Leg., p. 2478, ch. 871, art. I, S 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 8, eff. June 7,1991. 961.016. Boundaries for Areas With No Marked Vegetation Line (a) To determine the "line of vegetation" in any area of public beach in which there is no clearly marked line of vegetation (for instance, a line immediately behind well-defined dunes or mounds of sand and at a point where vegetation begins) recourse shall be to the nearest clearly marked line of vegetation on each side of the unmarked area. R24012D3.doc ATTACHMENT G -- 4 . . ~ ~.....-. (b) The "line of vegetation" for the unmarked area shall be the line of constant elevation connecting the two clearly marked lines of vegetation on each side. (c) If the elevation of the two points on each side of the area are not the same, the extension defining the "line of vegetation" shall be the average elevation as between the two points, but if there is no clearly marked line of vegetation, the" line of vegetation" shall not extend inland further than 200 feet from the seaward line of mean low tide. Acts 1977, 65th Leg., p. 2478, ch. 871, art. I, 9 1, eft Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 99, eff. June 7,1991. !i 61.017. Line of Vegetation Unaffected by Certain Conditions (a) The "line of vegetation" is not affected by the occasional sprigs of salt grass on mounds and dunes or seaward from them and by artificial fill, the addition or removal of turf, or by other artificial changes in the natural vegetation of the area. (b) If the changes listed in Subsection (a) of this section are made and the vegetation line is obliterated or is created artificially, the line of vegetation shall be determined in the same manner as in those areas covered by Section 61.016 of this code, but if there is a vegetation line consistently following a line more than 200 feet from the seaward line of mean low tide, the 200-foot line shall constitute the landward boundary of the area subject to public easement until a final court adjudication establishes the line in another place. (c)(1) In an area of public beach where a seawall structure constructed in its entirety as a single structure of one design before 1970 and continuously maintained with a height of not less than 11 feet above mean low tide interrupts the natural line of vegetation for a distance not less than 4,000 feet nor greater than 4,500 feet, the line of vegetation is along the seaward side of the seawall for the distance marked by the seawall, provided that prior to September 2, 1997: (A) a perpetual easement has been granted in favor of the public affording pedestrian, noncommercial use along and over the entire length of the seawall and adjacent sidewalk by the general public; (B) fee title to the surface estate to an area for public parking and other public uses adjacent to the seawall has been conveyed to and accepted by a public entity, which area contains sufficient acreage to provide at least one parking space for each 15 linear feet of the seawall, is located within the center one-third of the length of the seawall or not farther than 300 feet from that center one-third, and has frontage on the seawall for at least 300 linear feet; and (C) permanent roadway easements exist within 1,000 feet of each end of the seawall affording vehicular access from the nearest public road to the beach. (2) A line of vegetation established as described in this subsection shall be the landward boundary of the public beach and of the public easement for all purposes. Fee title to all submerged land as described in this code shall remain in the State of Texas. (d)(1) In an area of public beach where a combination stone revetment and concrete sheet pile wall constructed in its entirety as a single structure before 1999 and continuously maintained with a height of not less than five feet above mean low tide interrupts the natural line of vegetation for a distance not less than 7.5 miles and not more than 8.5 miles, the line of vegetation is along the landward boundary of that strip of land coveyed to the United States of America for the construction of the stone revetment and concrete sheet pile wall and for the distance marked by the stone revetment and concrete sheet pile wall. R24012D3.doc ATTACHMENT G -- 5 . . (2) A line of vegetation established as described by this subsection is the landward boundary of the public beach and of the public easement for all purposes. Fee title to all submerged land as described in this code shall remain in the State of Texas. Acts 1977, 65th Leg., p. 2479, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 593, 91, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 331, 91, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., p. 5214, eff. Sept. 1,2001. 9 61.018. Enforcement (a) The attorney general, individually or at the request of the commissioner, or any county attorney, district attorney, or criminal district attorney shall file in a district court of Travis County, or in the county in which the property is located, a suit to obtain either a temporary or permanent court order or injunction, either prohibitory or mandatory, to remove or prevent any improvement, maintenance, obstruction, barrier, or other encroachment on a public beach, or to prohibit any unlawful restraint on the public's right of access to and use of a public beach or other activity that violates this chapter. (b) In the same suit, the attorney general, the commissioner, county attorney, district attorney, or criminal district attorney may recover penalties and the costs of removing any improvement, obstruction, barrier, or other encroachment if it is removed by public authorities pursuant to an order of the court. (c) A person who violates this chapter is liable for a civil penalty of not less than $50 nor more than $1,000. Each day the violation occurs or continues is a separate violation. (d) The attorney general, either individually or at the request of the commissioner or any county attorney, may bring a suit for a declaratory judgment to try any issue affecting the public's right of access to or use of the public beach. Acts 1977, 65th Leg., p. 2479, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 910, eff. June 7,1991. 961.019. Declaratory Judgment Suits (a) A littoral owner whose rights are determined or affected by this subchapter may bring suit for a declaratory judgment against the state to try the issue or issues. (b) Service of citation on the state shall be made by serving the citation on the attorney general. Acts 1977, 65th Leg., p. 2479, ch. 871, art. 1,91, eff. Sept. 1, 1977. 961.020. Prima Facie Evidence In a suit brought or defended under this subchapter or whose determination is affected by this subchapter, a showing that the area in question is located in the area from mean low tide to the line of vegetation is prima facie evidence that: (1) the title of the littoral owner does not include the right to prevent the public from using the area for ingress and egress to the sea; and (2) there is imposed on the area a common law right or easement in favor of the public for ingress and egress to the sea. R24012D3.doc ATTACHMENT G -- 6 . .. Acts 1977, 65th Leg., p. 2479, ch. 871, art. I, S 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, S 11, eff. June 7,1991. S 61.021. Area Not Covered by Subchapter (a) None of the provisions of this subchapter apply to beaches on islands or peninsulas that are not accessible by a public road or ferry facility for as long as the condition exists. (b) A local government or local official may not adopt, apply, or enforce a beach access and use plan or any other provision of this subchapter within a state or national park area, wildlife refuge, or other designated state or national natural area. Acts 1977, 65th Leg., p. 2480, ch. 871, art. I, S 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, S 14, eff. June 7,1991. S 61.0211. State or National Park Covered by Subchapter This subchapter applies to any island or peninsula that is a state or national park or wildlife management area regardless of whether the island or peninsula is accessible by public road or ferry facility. Added by Acts 1991, 72nd Leg., ch. 295, S 12, eff. June 7, 1991. S 61.022. Government Agencies and Subdivisions (a) The provisions of this subchapter do not prevent any agency, department, institution, subdivision, or instrumentality of this state or of the federal government from erecting or maintaining any groin, seawall, barrier, pass, channel, jetty, or other structure as an aid to navigation, protection of the shore, fishing, safety, or other lawful purpose authorized by the constitution or laws of this state or the United States. (b) No local government may regulate vehicular traffic so as to prohibit vehicles from an area of public beach or impose or increase public beach access, parking, or use fees in any manner inconsistent with the policies of Section 61.011 of this code or the rules promulgated thereunder. (c) A local government proposing to adopt or amend such vehicular traffic regulations, except those for public safety, or fees shall submit a plan detailing the proposed action to the attorney general and the commissioner for review. The commissioner shall certify whether the proposed action is consistent or inconsistent with such policies and rules. Certifications of consistency shall be by adoption into the rules promulgated under Section 61.011 of this code. (d) Subsections (b) and (c) of this section take effect only on adoption of final rules by the commissioner under Section 61.011 of this code. Subsections (b) and (c) of this section do not apply to any existing local government traffic regulation or beach access, parking, or use fee adopted or enacted before the effective date of Subsections (b) and (c) of this section, and the former law is continued in effect for the purpose of the existing regulations and fees, until the regulations or fees are amended or changed in whole or in part. (e) State-owned or public land not specifically exempted by this chapter shall be subject to the same requirements of this chapter as land owned by private littoral owners except as provided by Sections 31.161 through 31.167 of this code. Acts 1977, 65th Leg., p. 2480, ch. 871, art. I, S 1, eff. Sept. 1, 1977. R24012D3.doc ATTACHMENT G -- 7 - - Amended by Acts 1991, 72nd Leg., ch. 295, 9 13, eff. June 7,1991. !i 61.023. Effect on land Titles and Property Adjacent to and on Beaches The provisions of this subchapter shall not be construed as affecting in any way the title of the owners of land adjacent to any state-owned beach bordering on the seaward shore of the Gulf of Mexico or to the continuation of fences for the retention of livestock across sections of beach which are not accessible to motor vehicle traffic by public road or by beach. Acts 1977, 65th Leg., p. 2480, ch. 871, art I, 9 1, eff. Sept 1, 1977. !i 61.024. Effect of Subchapter on Definition of Public Beach None of the provisions of this subchapter shall reduce, limit, construct, or vitiate the definition of public beaches which has been defined from time immemorial in law and custom. Acts 1977, 65th Leg., p. 2480, ch. 871, art 1,91, eff. Sept 1, 1977. !i 61.025. Disclosure to Purchaser of Property (a) A person who sells or conveys an interest, other than a mineral, leasehold, or security interest, in real property located seaward of the Gulf Intracoastal Waterway to its southernmost point and then seaward of the longitudinal line also known as 97 degrees, 12', 19" which runs southerly to the international boundary from the intersection of the centerline of the Gulf Intracoastal Waterway and the Brownsville Ship Channel must include in any executory contract for conveyance the following statement: The real property described in this contract is located seaward of the Gulf Intracoastal Waterway to its southernmost point and then seaward of the longitudinal line also known as 97 degrees, 12', 19" which runs southerly to the international boundary from the intersection of the centerline of the Gulf Intracoastal Waterway and the Brownsville Ship Channel. If the property is in close proximity to a beach fronting the Gulf of Mexico, the purchaser is hereby advised that the public has acquired a right of use or easement to or over the area of any public beach by prescription, dedication, or presumption, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom. The extreme seaward boundary of natural vegetation that spreads continuously inland customarily marks the landward boundary of the public easement If there is no clearly marked natural vegetation line, the landward boundary of the easement is as provided by Sections 61.016 and 61.017, Natural Resources Code. State law prohibits any obstruction, barrier, restraint, or interference with the use of the public easement, including the placement of structures seaward of the landward boundary of the easement STRUCTURES ERECTED SEAWARD OF THE VEGETATION LINE (OR OTHER APPLICABLE EASEMENT BOUNDARY) OR THAT BECOME SEAWARD OF THE VEGETATION LINE AS A RESULT OF NATURAL PROCESSES SUCH AS SHORELINE EROSION ARE SUBJECT TO A LAWSUIT BY THE STATE OF TEXAS TO REMOVE THE STRUCTURES. The purchaser is hereby notified that the purchaser should: (1) determine the rate of shoreline erosion in the vicinity of the real property; and (2) seek the advice of an attorney or other qualified person before executing this contract or instrument of conveyance as to the relevance of these statutes and facts to the value of the property the purchaser is hereby purchasing or contracting to purchase. R24012D3.doc ATTACHMENT G -- 8 . . (b) If there is no executory contract for conveyance, the statement must be delivered to, and receipt thereof acknowledged by, the purchaser prior to closing the transaction. (c) Failure to include the statement in an executory contract for conveyance shall be grounds for the purchaser to terminate such contract, and upon termination any earnest money shall be returned to the party making the deposit. (d) Failure to provide this statement prior to closing, either in the executory contract for conveyance or in a separate written statement, shall constitute a deceptive act under Section 17.46, Business & Commerce Code. (e) This section, or the failure of a person to give or receive the notice required by this section, does not diminish or modify the beach access and use rights of the public acquired through statute or under common law. Added by Acts 1985, 69th Leg., ch. 350, ~ 1, eff. Aug. 26,1985. Amended by Acts 1987, 70th Leg., ch. 75, ~ 1, eff Aug. 31, 1987; Acts 1999, 76th Leg., ch. 508, ~ 10, eff. Sept. 1, 1999. !i 61.026. Beach Access Public Awareness and Education (a) The land office in conjunction with the Texas Department of Transportation shall design and produce a uniform bilingual beach access sign to be used by local governments to designate access ways to and from public beaches. (b) The land office or the attorney general's office may develop and distribute public information about the requirements of this chapter, the importance of natural beach and dune systems, and the necessity for preserving them. Such information may include public service announcements made under the direction of the land office. (c) The Texas A&M University Sea Grant Program shall make available to public schools materials for natural science classes which explain the importance of natural beach and dune systems and the necessity of preserving them. Added by Acts 1991, 72nd Leg., ch. 295, ~ 15, eff. June 7,1991. Amended by Acts 1995, 74th Leg., ch. 165, ~ 22(54), eff. Sept. 1, 1995. SUBCHAPTER C. MAINTENANCE OF THE PUBLIC BEACHES !i 61.061. Purpose It is the purpose of this subchapter to allocate responsibility for cleaning the beaches of this state and to preserve and protect local initiative in the maintenance and administration of beaches. Acts 1977, 65th Leg., p. 2480, ch. 871, art. I, ~ 1, eff. Sept. 1, 1977. !i 61.062. Public Policy It is the public policy of this state that the public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico if the public has acquired a right of use or easement to or over the area by prescription, dedication, or continuous use. This creates a responsibility for the state, in its position as trustee for the public to assist local governments in the cleaning of beach areas which are subject to the access rights of the public as defined in Subchapter B of this chapter. Acts 1977, 65th Leg., p. 2480, ch. 871, art. I, ~ 1, eff. Sept. 1, 1977. R24D12D3.doc ATTACHMENT G -- 9 - . _.....-, !i 61.063. Definitions In this subchapter: (1) "Clean and maintain" means the collection and removal of litter and debris and the supervision and elimination of sanitary and safety conditions that would pose a threat to personal health or safety if not removed or otherwise corrected and includes the employment of lifeguards, beach patrols, and litter patrols. (2) "Land office" means the General Land Office. Acts 1977, 65th Leg., p. 2480, ch. 871, art. I,!i 1, elf. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114, S 1, elf. Sept. 1, 1991. !i 61.064. Application of Subchapter This subchapter applies to incorporated cities, towns, and villages that are located or border on the Gulf of Mexico and to all counties that are located or border on the Gulf of Mexico if the city, town, or village or county that makes application for funds under this subchapter has within its boundaries public beaches. Acts 1977, 65th Leg., p. 2481, ch. 871, art. I, S 1, elf. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 366, ch. 163, S 1, elf. Aug. 27, 1979. !i 61.065. Duty of Cities (a) It is the duty and responsibility of the governing body of any incorporated city, town, or village located or bordering on the Gulf of Mexico to clean and maintain the condition of all public beaches within the corporate boundaries. (b) The duty to clean and maintain the condition of public beaches does not extend to any public beach within the corporate boundaries that is owned by the county in which it is located. Acts 1977, 65th Leg., p. 2481, ch. 871, art. I, S 1, elf. Sept. 1, 1977. !i 61.066. Duty of County It is the duty and responsibility of the commissioners court of any county located or bordering on the Gulf of Mexico to clean and maintain the condition of all public beaches located inside the county but outside the boundaries of any incorporated city located or bordering on the Gulf of Mexico and all public beaches owned by the county and located inside the boundaries of an incorporated city, town, or village. Acts 1977, 65th Leg., p. 2481, ch. 871, art. I,!i 1, elf. Sept. 1, 1977. !i 61.067. Duty of State (a) It is the duty and responsibility of the state to clean and maintain the condition of all public beaches located within state parks designated by the department. (b) The land olfice shall consult with the department in adopting rules and procedures for cleaning beaches in state parks and areas adjacent to state parks. R24012D3.doc ATTACHMENT G -- 10 - . .- (c) The land olfice shall expand the Adopt-A-Beach program to the greatest extent feasible to enhance the performance of its duties under this subchapter. (d) The land olfice may use any cash, gifts, grants, donations, or in-kind contributions that it receives from a public or private entity through the administration of the Adopt-A-Beach program to assist a municipality, a county, or the department in performing any duty imposed on the city, county, or department by this subchapter. (e) The land office may adopt rules reasonably necessary to perform its duties under this subchapter. Acts 1977, 65th Leg., p. 2481, ch. 871, art. I, S 1, elf Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114, S 2, elf. Sept. 1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, S 7.01, elf. Sept. 1, 1991. ~ 61.068, Application Requirement A city or county that seeks state funds under this subchapter to clean the public beaches must submit an application to the land olfice. Acts 1977, 65th Leg., p. 2481, ch. 871, art. I, S 1, elf. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114, S 3, elf. Sept. 1, 1991. ~ 61.069. Contents of Application To be approved, the application must provide: (1) for the administration or supervision of the public beaches of the city or county by a beach park board of trustees, county parks board, commissioners court, or other administrative body that the legislature may from time to time authorize, and provide that the board or agency will have adequate authority to administer an elfective program of keeping clean the public beaches within its jurisdiction; (2) for the receipt by the city or county treasurer or other officer exercising similar functions, if there is no city or county treasurer, of all funds paid to the city or county under this subchapter and provide for the proper safeguarding of the funds by the officer, provide that the funds will be spent solely for the purposes for which they are paid, and provide for the repayment by the city or county of any funds lost or diverted from the purposes for which paid; (3) that the governing body of the city or county will make reports as to amounts and categories of expenditures that the land office may from time to time require; (4) that entrance to all public beaches under the jurisdiction of the governing body of the city or county is free of charge; and (5) for the establishment, maintenance, and administration of at least one beach park by the city or county which meets the minimum requirements of size and facilities available to the public as determined by the land office. Acts 1977, 65th Leg., p. 2481, ch. 871, art. I, S 1, elf. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114, ~ 4, elf. Sept. 1, 1991. ~ 61,070, Parking and Use Fees R24D12D3.doc ATTACHMENT G -- 11 - - ......... Subsection (4), Section 61.069 of this code shall not be construed to prohibit the assessment of a reasonable fee for oft-beach parking or for the use of facilities provided for the use and convenience of the public. Acts 1977, 65th Leg., p. 2482, ch. 871, art. I, S 1, eff. Sept 1, 1977. S 61.071. Compliance Before Approval The land office shall not approve any application that fails to meet the conditions specified in Section 61.069 of this code. Acts 1977, 65th Leg., p. 2482, ch. 871, art. I, S 1, eff. Sept 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114, S 5, eff. Sept 1, 1991. S 61.072. State Funds The land office shall pay to each city or county that has an application approved under Sections 61.068 through 61.070 of this code from appropriations that are made available the state share for cleaning and maintenance of public beaches. Acts 1977, 65th Leg., p. 2482, ch. 871, art. I, S 1, eff. Sept 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114, S 6, eff. Sept 1, 1991. S 61.073. Conditions for Payments No payments shall be made under this subchapter until the land office finds that: (1) there will be available in the budget of the city or county not less than $20,000 to clean and maintain public beaches within its jurisdiction for the state fiscal year for which reimbursement is sought; and (2) there will be available in the budget of the city or county for the purpose of cleaning and maintaining the public beaches within its jurisdiction for the state fiscal year for which reimbursement is sought an amount not less than the total amount spent by the city or county to clean the beaches in the state fiscal year ending August 31, 1969. Acts 1977, 65th Leg., p. 2482, ch. 871, art. I, S 1, eff. Sept 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114, S 7, eff. Sept 1, 1991. S 61.074. Submission of Proposed Expenditures A city or county that seeks reimbursement under the provisions of this subchapter shall submit to the land office proposed expenditures for cleaning and maintaining the public beaches. Acts 1977, 65th Leg., p. 2482, ch. 871, art. I, S 1, eff. Sept 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114, S 8, eff. Sept 1, 1991. S 61.075. Fair Distribution of Funds The land office shall distribute the state share to the cities and counties in a fair and impartial manner and under procedures and accounting methods to be adopted by the land office. R24012D3.doc ATTACHMENT G -- 12 . T 'I , .... ~"'..~ ,- Acts 1977, 65th Leg., p. 2482, ch. 871, art. I, 9 1, elf. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114,99, elf. Sept. 1, 1991. !i 61.076. Limitation on State Share (a) No city or county may receive as its state share an amount that is greater than two-thirds of the amount the city or county spends for the purpose of cleaning and maintaining public beaches within its jurisdiction during the state fiscal year for which reimbursement is sought. (b) The land office shall allocate the state share to eiigible cities and counties taking into account the frequency with which public beaches within the jurisdiction of the cities and counties are used. (c) For purposes of determining the maximum amount of money a municipality may receive under Subsection (a), money received under Section 156.2511, Tax Code: (1) is not included in determining the amount the municipality spends to clean and maintain public beaches during the state fiscal year for which reimbursement is sought; and (2) is included as part of the state share. Acts 1977, 65th Leg., p. 2482, ch. 871, art. 1,91, elf. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch 114,910, elf. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 454, 9 9, elf. Sept. 1, 1995. !i 61.077. Funds for Administrative Purposes and Emergencies (a) The land olfice may use for administrative purposes not more than 10 percent of the appropriated funds for any state fiscal year. (b) The land office may withhold a portion of the appropriated funds to maintain a reserve emergency fund to be used for cleaning beaches in the event of a catastrophe, such as an oil spill, an influx of seaweed, or other major interference with public recreational use of public beaches. Acts 1977, 65th Leg., p. 2483, ch. 871, art. I, 9 1, elf. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114,911, elf. Sept. 1, 1991. 961.078. Authority to Spend County Funds The commissioners court of any county located or bordering on the Gulf of Mexico may spend from any available fund the amount it considers necessary to carry out the responsibilities provided in this subchapter. Acts 1977, 65th Leg., p. 2483, ch. 871, art. I, 9 1, elf. Sept. 1, 1977. !i 61.079. Notice of Ineligibility After reasonable notice and opportunity for a hearing to a city or county that is receiving funds under the provisions of this subchapter, if the land olfice finds that the city or county no longer complies with the requirements of this subchapter, it shall notify the city or county that further payments will not be made until the land olfice is satisfied that there is no longer any failure to comply. Acts 1977, 65th Leg., p. 2483, ch. 871, art. I, 9 1, elf. Sept. 1, 1977. R24012D3.doc ATTACHMENT G -- 13 . .. T ~-_. ,.... Amended by Acts 1991, 72nd Leg., ch. 114,912, eff. Sept. 1, 1991. ~ 61.080. Public Beaches in Ineligible City (a) The governing body of any incorporated city located or bordering on the Gulf of Mexico that is not entitled to receive funds under this subchapter may contract with the commissioners court of the county in which the city is located to allow the county to clean the beaches within the corporate limits of the city. (b) The city may apply to the land office for rebates of 40 percent of the contract price, and the city is not required to meet the terms and conditions imposed in Section 61.069 of this code unless otherwise provided by law. (c) The land office shall make the rebates at the close of each fiscal year on a showing by the city that entrance to all public beaches under the jurisdiction of the city is free of charge. (d) This section shall not be construed to prohibit the assessment of a reasonable fee for off-beach parking or the use of facilities provided for the use and convenience of the public. Acts 1977, 65th Leg., p. 2483, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114,913, eff. Sept. 1, 1991. ~ 61.081. Public Beaches in Ineligible County (a) The commissioners court of a county that is not entitled to receive funds under this subchapter may contract with the commissioners court of any adjacent county that is entitled to receive funds under this subchapter to allow the adjacent county to clean the public beaches of the ineligible county. (b) The contracting county that is not entitled to receive funds under this subchapter may apply to the land office for rebates of 40 percent of the contract price, but the ineligible county is not required to meet the terms and conditions imposed in Section 61.069 of this code. (c) The land office shall make the rebates at the close of each state fiscal year on a showing by the ineligible county that entrance to all public beaches under the jurisdiction of the county is free of charge. (d) This section shall not be construed to prohibit the assessment of a reasonable fee for off-beach parking or for the use of facilities provided for the use and convenience of the public. Acts 1977, 65th Leg., p. 2483, ch. 871, art. J, ~ 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 114,914, eft. Sept. 1, 1991. ~ 61.082. Authority of Local Governments (a) The provisions of this subchapter shall not be construed to interfere with local initiative and responsibility in the cleaning, maintenance, and supervision of public beaches. (b) The administration of public beaches, the selection of personnel, and the determination of the best uses of the funds insofar as is consistent with the purposes of this subchapter are reserved to the several political subdivisions receiving funds under this subchapter. Acts 1977, 65th Leg., p. 2484, ch. 871, art. 1,91, eff. Sept. 1, 1977. R24012D3.doc ATTACHMENT G -- 14 .. 1 T !i 61.083. Exemptions From Subchapter None of the provisions of this subchapter apply to any beach area that does not border on the Gulf of Mexico or to any island or peninsula that is not accessible by a public road or common carrier ferry facility as long as that condition exists. Acts 1977, 65th Leg., p. 2484, ch. 871, art. I, S 1, eff. Sept. 1, 1977. SUBCHAPTER D. COUNTY REGULATION OF PUBLIC USE OF BEACHES !i 61.121. Definition code. In this subchapter, "beach" shall have the same definition as provided in Section 61.012 of this Acts 1977, 65th Leg., p. 2484, ch. 871, art. I, S 1, eff. Sept. 1, 1977. !i 61.122. County Regulatory Authority (a) The commissioners court of a county bordering on the Gulf of Mexico or its tidewater limits, by order, may regulate motor vehicle traffic on any beach within the boundaries of the county, including prohibiting motor vehicle traffic on any natural or man-made sand dune or other form of shoreline protection, and may prohibit the littering of the beach and may define the term "littering." (b) The commissioners court of a county bordering the Gulf of Mexico or its tidewaters, by order, may regulate the possession of animals on the beach within its boundaries, including but not limited to prohibiting animals to run at large on said beach. (c) The commissioners court of a county bordering the Gulf of Mexico or its tidewaters, by order, may regulate swimming in passes leading to and from the Gulf of Mexico, located within its boundaries, including but not limited to prohibiting swimming in said passes and posting signs notifying persons of such regulation or prohibition. (d) The commissioners court of a county bordering on the Gulf of Mexico or its tidewater limits, by order, may prohibit the use and possession of all glass containers and products on a beach in the unincorporated area of the county. The commissioners court shall not prohibit anyone or several glass products to the exclusion of any others. (e) Regulation under Subsection (a) of this section that prohibits vehicles from an area of public beach is subject to Section 61.022 of this code. Acts 1977, 65th Leg., p. 2484, ch. 871, art. I, S 1, eff. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 775, ch. 341, S 1, eff. Aug. 27,1979; Acts 1991, 72nd Leg., ch. 295, 9 16, eff. June 7, 1991. Amended by Acts 2001, 77th Leg., p. 2955, eff. immediately. Amended by Acts 2001, 77th Leg., p. 2595, eff. Sept. 1, 2001. !i 61.123. Notice of Hearing (a) Before the commissioners court adopts an order under Section 61.122 of this code, it must publish notice of the intention to adopt the order in at least one newspaper with general circulation in the county. R24012D3.doc ATTACHMENT G --15 '. ] T (b) The notice shall state the time and place of the public hearing on the proposed order and that interested persons may obtain copies of the proposed order from the commissioners court. Acts 1977, 65th Leg., p. 2484, ch. 871, art. I, S 1, eft. Sept. 1, 1977. !i 61.124. Copies of Order The commissioners court shall make copies of the proposed order available to interested persons. Acts 1977, 65th Leg., p. 2484, ch. 871, art. I, S 1, eft. Sept. 1, 1977. S 61.125. Public Hearing (a) Not less than one month but more than two weeks after notice is published, the commissioners court shall conduct a hearing at the time and place stated in the notice. (b) At the hearing, the commissioners shall allow all interested persons to express their views on the proposed order. Acts 1977, 65th Leg., p. 2484, ch. 871, art. I, S 1, eft. Sept. 1, 1977. !i 61.126. Traffic Regulations If the order includes a traftic regulation, the order shall provide for signs that are designed and posted in compliance with the current provisions of the Texas Manual on Traffic Control Devices for Streets and Highways, stating the applicable speed limit, parking requirement, or that vehicles are prohibited. Acts 1977, 65th Leg., p. 2485, ch. 871, art. I, S 1, eft. Sept. 1, 1977. !i 61.127. Criminal Penalties In any order adopted under this subchapter, the commissioners court may adopt the following criminal penalties for violation of the order: (1) for a first conviction, a fine of not less than $50; nor more than $100; (2) for a second conviction, a fine of not less than $100 nor more than $200; (3) for any subsequent convictions after the second conviction, a fine of not less than $200 nor more than $1,000 or confinement in the county jail for not more than 60 days, or both. Acts 1977, 65th Leg., p. 2485, ch. 871, art. I, S 1, eft. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 585, S 3, eft. Sept. 1, 1985. !i 61.128. Order Prevails Over State Law If an order adopted under this subchapter conflicts with the general law of the state, the order shall control over the state law, and in cases of violation, prosecution may be maintained only under the order. Acts 1977, 65th Leg., p. 2485, ch. 871, art. I, S 1, eft. Sept. 1, 1977. R24012D3.doc ATTACHMENT G -- 16 .. 1 T !i 61.129. Ordinance Prevails Over Order and State Law (a) Except as provided in Section 61.022 of this code, this subchapter does not limit the power of an incorporated city, town, or village bordering on the Gulf of Mexico or any adjacent body of water to regulate motor vehicle traffic and prohibit littering on any beach within its corporate limits. (b) If these regulatory ordinances are adopted by a city, town, or village and the ordinance conflicts with the general law of the state or with an order of the commissioners court adopted under this subchapter, and the ordinance is consistent with policies and rules under Section 61.011 of this code, the ordinance shall control over the state law and the order, and in cases of violation, prosecution may be maintained only under the ordinance. Acts 1977, 65th Leg., p. 2485, ch. 871, art. I,!i 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295,!i 17, eff. June 7,1991. !i 61.130. Rights ofthe Public The right of the public to use the public beaches defined in this subchapter is inviolate and is subject only to orders adopted by a commissioners court under this subchapter and to ordinances enacted by an incorporated city, town, or village. Acts 1977, 65th Leg., p. 2485, ch. 871, art. I,!i 1, eff. Sept. 1, 1977. !i 61.131. Effect of Subchapter on Definition of Public Beach None of the provisions of this subchapter shall reduce, iimit, construct, or vitiate the definition of public beaches which has been defined from time immemorial in law and custom. Acts 1977, 65th Leg., p. 2485, ch. 871, art. I,!i 1, eff. Sept. 1, 1977. SUBCHAPTER E. LICENSES FOR BUSINESS ESTABLISHMENTS !i 61.161. Public Policy It is the public policy of this state that the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico, if the public has acquired a right of use or easement to or over the area by the prescription or dedication or has retained a right by virtue of continuous right in the public, shall be used primarily for recreational purposes, and any use which substantially interferes with the enjoyment of the beach area by the public shall constitute an offense against the public policy of the state. Nothing in this subchapter prevents any agency, department, political subdivision, or municipal corporation of this state from exercising its lawful authority under any law of this state to regulate safety conditions on any beach area subject to public use. Acts 1977, 65th Leg., p. 2485, ch. 871, art. I,!i 1, eff. Sept. 1, 1977. !i 61.162. Findings (a) The legislature finds that the operation and maintenance of business establishments at fixed or permanent locations on the public beaches of this state bordering on the seaward shore of the Gulf of Mexico constitute a potential public health hazard and a substantial interference with the free and unrestricted rights of ingress and egress of the public, both individually and collectively, to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico or any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico if the public has R24D12D3.doc ATTACHMENT G -- 17 ... If T acquired a right of use or easement to or over the area by prescription, dedication, or has retained a right by virtue of continuous right in the public. (b) The legislature finds that a reasonable number of mobile business establishments which traverse the public beach while doing business are beneficial to the public interest and do not interfere with the free and unrestricted rights of ingress and egress of the public as provided in this subchapter. Acts 1977, 65th Leg., p. 2486, ch. 871, art. I, ~ 1, eff. Sept. 1, 1977. ~ 61.163. Definition In this subchapter, "business establishment" means any structure or vehicle where any commodity including memberships in any private club or other similar organization is offered to the public for sale or lease but does not include any structure or vehicle where only services are oftered to the public for sale. Acts 1977, 65th Leg., p. 2486, ch. 871, art. I, S 1, eft. Sept. 1, 1977. ~ 61.164. Application A person who desires to operate a mobile business establishment on a public beach located outside the municipal limits of an incorporated city shall submit a written application to the county of jurisdiction. Acts 1977, 65th Leg., p. 2486, ch. 871, art. I, S 1, eft Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 399, S 1, eft. Aug. 28,1995. ~ 61.165. Contents of Application The application shall include: (1) the name and street address of the applicant; (2) the commodity to be sold or leased; and (3) the limits of the territory within which the mobile business establishment will operate. Acts 1977, 65th Leg., p. 2486, ch. 871, art. I, S 1, eft. Sept. 1, 1977. ~ 61.166. Filing Fee (a) The application shall be accompanied by a filing fee in an amount determined by the county. (b) The filing fee may be used by the county to pay the expenses of carrying out the provisions of this subchapter. Acts 1977, 65th Leg., p. 2486, ch. 871, art. I, S 1, eft. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 267, art. 2, S 75, eft. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 679, S 63, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 399, S 2, eff. Aug. 28,1995. ~ 61.167. Separate Applications R24012D3.doc ATTACHMENT G --18 'w . - Any applicant who plans to operate more than one mobile business establishment must file a separate application accompanied by a separate filing fee for each mobile business establishment that he seeks to have licensed. Acts 1977, 65th Leg., p. 2486, ch. 871, art. I, S 1, eft. Sept. 1, 1977. S 61.168. Granting License (a) On finding that the issuance of a license is consistent with recreational needs and the public welfare, and that the mobile business establishment would not create a traftic or safety hazard, and on compliance with this subchapter by the applicant, the county shall grant the license. (b) The license shall be valid for a term selected by the county, not to exceed two years from the day it is issued. (c) If the license is not granted, the county shall return the filing fee to the applicant. Acts 1977, 65th Leg., p. 2487, ch. 871, art. I, S 1, eft. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 342, S 1, eft. June 10,1985; Acts 1995, 74th Leg., ch. 399, S 3, eft. Aug. 28, 1995. S 61.169. Applications Not to be Granted The county shall not grant an application: (1) for a business establishment located at a fixed or permanent location on a public beach; or (2) that does not otherwise meet the terms and provisions of this subchapter. Acts 1977, 65th Leg., p. 2487, ch. 871, art. I, S 1, eft. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 399, S 4, eft. Aug. 28,1995. S 61.170. License Prohibition Against Glass Containers (a) Each license granted under this subchapter authorizing the sale of commodities on a public beach shall include a prohibition against the sale of any commodity in a glass container. (b) Any person selling a commodity in a glass container on a public beach outside the boundaries of any incorporated city shall have his rights conferred by the license immediately terminated and revoked as provided in Section 61.172 of this code. Acts 1977, 65th Leg., p. 2487, ch. 871, art. I, S 1, eft. Sept. 1, 1977. S 61.171. Assignment No license issued under this subchapter may be assigned. Acts 1977, 65th Leg., p. 2487, ch. 871, art. I, S 1, eft. Sept. 1, 1977. S 61.172. Termination and Revocation of License R24D12D3.doc ATTACHMENT G -- 19 - - (a) The failure or refusal of the licensee to comply with the terms and conditions of a license shall operate as an immediate termination and revocation of all rights conferred in or claimed under the license. (b) The termination and revocation of the license is not effective until notice is delivered by mail to the address of the licensee listed on the application for the license. Acts 1977, 65th Leg., p. 2487, ch. 871, art. I, S 1, eff. Sept. 1, 1977. !i 61.173. Maximum Territorial Limits (a) If territorial iimitations are applied uniformly to all applicants seeking to operate mobile business establishments in the territory, the county may establish maximum territorial limits over which mobile business establishments may operate. (b) A license to sell or lease only surfboards and related equipment may not be limited as to the territory over which the mobile business establishment may operate. Acts 1977, 65th Leg., p. 2487, ch. 871, art. I, S 1, eff. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 399, S 5, eff. Aug. 28,1995. !i 61.174. Additional Standards In addition to other standards provided in this subchapter, it is the intention of the legislature that the county exercise the authority delegated to it under this subchapter according to the following considerations: (1) that the number of mobile business establishments licensed by the county should not constitute a substantial interference with the free and unrestricted rights of ingress and egress of the public provided in this subchapter; (2) that the number of licenses issued by the county under this subchapter are sufficient to ensure free and unrestricted competition in selling or leasing of commodities to the public; and (3) that no person should be allowed to operate any mobile business establishment on any public beach in restraint of trade or competition by which the person controls all or substantially all the business establishments on the public beach licensed by the county. Acts 1977, 65th Leg., p. 2487, ch. 871, art. I, S 1, eff. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 399, S 6, eff. Aug. 28, 1995. !i 61.175. Rules, Procedures, and Conditions The county may establish additional rules, procedures, and conditions necessary or appropriate to carry out the purposes of this subchapter. Acts 1977, 65th Leg., p. 2488, ch. 871, art. I,!i 1, eff. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 399, S 7, eff. Aug. 28,1995. !i 61.176. Areas Exempt From Subchapter R24012D3.doc ATTACHMENT G -- 20 -. J 11" This subchapter does not apply to a public beach that is within the boundaries of a state park designated by the department or to a remote beach on any island or peninsula which is not accessible by public road or common carrier ferry facility as long as that condition exists. Acts 1977, 65th Leg., p. 2488, ch. 871, art. I, !l1, eft. Sept. 1, 1977. S 61.177. Penalty A person, who for himself or on behalf of or under the direction of another person, operates any business establishment, whether mobile or at a fixed or permanent location, on any public beach outside the boundaries of any incorporated city without first obtaining a license to operate the business establishment from the county shall be fined not less than $10 nor more than $200. Acts 1977, 65th Leg., p. 2488, ch. 871, art. I, !l1, eft. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 399, !l8, eft. Aug. 28, 1995. S 61.178. Enforcement At the request of a county, department game wardens will assist with enforcement of the provisions of this Act, or permits issued hereunder, along with any other state or local law enforcement entities with jurisdiction over public beaches. Added by Acts 1995, 74th Leg., ch. 399, !l9, eft. Aug. 28, 1995. SUBCHAPTER F. REMOVAL OF SAND, MARL, GRAVEL, AND SHELL S 61.211. Findings The legislature finds that the unregulated excavation, taking, removal, and carrying away of sand, marl, gravel, and shell from islands and peninsulas bordering on the Gulf of Mexico and from the public beaches of the state constitute a substantial interference with public enjoyment of Texas beaches and a hazard to life and property. Acts 1977, 65th Leg., p. 2488, ch. 871, art. I, !l1, eft. Sept. 1, 1977. S 61.212. Exemptions From Subchapter (a) The provisions of this subchapter do not apply: (1) to excavating, taking, removing, or carrying away sand, marl, gravel, or shell made for the purpose of constructing improvements on real property if the improvements are constructed on the property on which the excavating, taking, removing, or carrying away occurs; (2) to any landowner who desires to shift sand, marl, gravel, or shell from one location to another on land wholly owned by him; or (3) to any agency of the federal or state government or any county, city, or other political subdivision or any of their agents or ofticers acting in their official capacities. (b) Any person who holds a lease that was issued by the state under Chapter 377, Acts of the 57th Legislature, Regular Session, 1961 (Article 5415e, Vernon's Texas Civil Statutes), before it was repealed shall be treated as an owner of the land and shall be entitled to excavate, take, remove, and carry away sand, marl, gravel, or shell for the purposes provided in Subsection (a) of this section without obtaining a permit from the commissioners court. R24012D3.doc ATTACHMENT G -- 21 . I ~ Acts 1977, 65th Leg., p. 2488, ch. 871, art. I, !j1, eff. Sept 1, 1977. !j61.213. Application Before a person excavates, takes, removes, or carries away sand, marl, gravel, or shell from land located on an exposed island or peninsula bordering on the Gulf of Mexico or from land located within 1,500 feet of a mainland public beach that is located outside the boundaries of an incorporated city, town, or village, he must submit a written application to the commissioners court of the county in which the excavation, taking, removal, or carrying away is to take place. Acts 1977, 65th Leg., p. 2489, ch. 871, art. I, !j1, eff. Sept 1, 1977. !l61.214. Contents of Application The application shall include: (1) the name of the applicant; (2) the location and dimensions of the proposed excavation; (3) the property interest or contractual right that enables the applicant to excavate, take, remove, or carry away sand, marl, gravel, or shell; and (4) certification by the county treasurer, or other official exercising similar authority if there is no county treasurer, that the applicant has deposited a filing fee of $50. Acts 1977, 65th Leg., p. 2489, ch. 871, art. I, !j1, eff. Sept 1, 1977. !l61.215. Prerequisites to Issuance of Permit No permit may be issued by the commissioners court under this subchapter to excavate, take, remove, or carry away sand, marl, gravel, or shell from land owned by the state, public beach, or privately owned land that is subject to this subchapter and that is not located on a public beach, unless the applicant is the owner of the land on which the proposed excavating, taking, removing, or carrying away is to take place or unless the applicant is acting with the knowledge and consent of the owner. Acts 1977, 65th Leg., p. 2489, ch. 871, art. I, !j1, eff. Sept 1, 1977. !l61.216. Notice of Applications Received (a) The commissioners court shall give public notice of all applications received for permits to excavate, take, remove, or carry away sand, marl, gravel, or shell. (b) The notice shall be published once in a newspaper of general circulation in the county. (c) The notice shall include the name of the applicant and the location and dimensions of the proposed activity. Acts 1977, 65th Leg., p. 2489, ch. 871, art. I, S 1, eff. Sept. 1, 1977. !j61.217. Public Hearing (a) The commissioners court shall hold a public hearing if the hearing is requested by any citizen within 10 days after notice is published under Section 61.216 of this code. R2401 ZD3.doc ATTACHMENT G -- 22 ... . .,. (b) The hearing may not be held less than 30 days from the date of the first publication of notice under Section 61.218 of this code. Acts 1977, 65th Leg., p. 2489, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. 961.218. Notice of Public Hearing Notice of the public hearing shall be published at least once a week for at least two weeks in a newspaper of general circulation in the county. Acts 1977, 65th Leg., p. 2489, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. 9 61.219. Issuance of Permit (a) On a finding that the proposed excavating, taking, removing, or carrying away would not create hazardous conditions or imperil lives or property by exposing the island or peninsula or public beach to the ravages of storm water, the commissioners court may issue a permit to the applicant, and it shall be valid for six months from the date of its issuance. (b) The decision to issue a permit shall be made with the advice and counsel of the county engineer in counties in which the commissioners court employs a county engineer. (c) None of the provisions of this subchapter prohibit a commissioners court from issuing a permit to a person who holds a right-of-way easement granted by the commissioner for a pipeline to cross state land, provided the applicant complies with the provisions of this subchapter relating to the issuance of permits. Acts 1977, 65th Leg., p. 2490, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. 961.220. Return of Filing Fee If the commissioners court refuses to issue the permit, the applicant may recover his filing fee from the county treasurer or other official exercising similar authority if there is no county treasurer. Acts 1977, 65th Leg., p. 2490, ch. 871, art. 1,91, eft. Sept. 1, 1977. 9 61.221. Assignment of Permits No permit may be assigned without the approval of the commissioners court. Acts 1977, 65th Leg., p. 2490, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. 9 61.222. Termination and Revocation of Permit Failure or refusal of the permittee to comply with the terms and conditions of the permit operates as an immediate termination and revocation of all rights conferred by or claimed under the permit. Acts 1977, 65th Leg., p. 2490, ch. 871, art. 1,91, eft. Sept. 1, 1977. 961.223. Suits for Orders and Injunctions The attorney general, any county attorney, district attorney, or criminal district attorney of the state shall file in a district court in the county in which the conduct takes place, a suit seeking temporary or permanent court orders or injunctions to prohibit any excavating, taking, removing, or carrying away of any sand, marl, gravel, or shell from land located on an exposed island or peninsula bordering on the Gulf R24012D3.doc ATTACHMENT G -- 23 - of Mexico or from land located within 1,500 feet of a public beach of this state if the land is located outside the boundaries of an incorporated city, town, or village in violation of the provisions of this subchapter. Acts 1977, 65th Leg., p. 2490, ch 871, art. 1,91, eft. Sept. 1, 1977. 9 61.224. Penalty A person who for himself or on behalf of or under the direction of another person excavates, takes, removes, or carries away sand, marl, gravel, or shell from land located on an exposed island or peninsula bordering on the Gulf of Mexico or from land located within 1,500 feet of a public beach of this state, if the land is located outside the boundaries of any incorporated city, town, or village, in violation of the provisions of this subchapter shall be fined not less than $10 nor more than $200. Each day a violation occurs constitutes a separate oftense. Acts 1977, 65th Leg., p. 2490, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. 9 61.225. Sand, Marl, Gravel, or Shell From Public Beaches Within Incorporated Cities, Towns, or Villages No incorporated city, town, or village having within its boundaries a public beach may authorize a person to excavate, take, remove, or carry away any sand, marl, gravel, or shell from the public beach except for the construction of a publicly owned and operated recreational facility or for the construction of a shoreline protection structure. Acts 1977, 65th Leg., p. 2490, ch. 871, art. 1,91, eft. Sept. 1, 1977. 961.226. Application of Subchapter to Certain Islands and Peninsulas The provisions of this subchapter do not apply to any island or peninsula that is not accessible by a public road or common carrier ferry facility as long as that condition continues. Acts 1977, 65th Leg., p. 2491, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. 961.227. Authority of Parks and Wildlife Department None of the provisions of this subchapter may be construed to repeal or modify the provisions of Chapter 86, Parks and Wildlife Code, which relate to the powers and duties of the Parks and Wildlife Department over matters pertaining to the sale, taking, carrying away, or disturbing of sand, marl, gravel, or shell of commercial value and gravel, shells, mud shell, and oyster beds and their protection from free use and unlawful disturbing or appropriation, nor may this subchapter be construed to create additional or supplemental requirements or procedures to those provided in Chapter 86, Parks and Wildlife Code. Acts 1977, 65th Leg., p. 2491, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. SUBCHAPTER G. PERMITS FOR MASS GATHERINGS 9 61.251. Definition In this subchapter, "mass gathering" means a gathering that attracts or is expected to attract more than 200 individuals who will remain at the location of the gathering for more than two continuous hours. Added by Acts 2001, 77th Leg., p. 5214, eft. immediately. R24012D3.doc ATTACHMENT G -- 24 ... 1 11' 9 61.252. Permit Requirements (a) To protect the public health, safety, and welfare, the commissioners court of a county bordering on the Gulf of Mexico or its tidewater limits, by order, may regulate mass gatherings of individuals on any beach in the unincorporated area of the county by requiring a person to obtain a permit and pay a permit fee set by the commissioners court before the person may hold a mass gathering. (b) A commissioners court that requires a permit under this subchapter must adopt procedures governing the application for and issuance of a permit under this subchapter. The commissioners court may require the holder of the permit to take reasonable specified actions to protect the public health, safety, and welfare. Added by Acts 2001, 77th Leg., p. 5214, eft. immediately. 9 61.253. Injunction The county is entitled to appropriate injunctive relief to prevent the violation or threatened violation of an order adopted under this subchapter. Added by Acts 2001, 77th Leg., p. 5214, eff. immediately. 961.254. Criminal Penalty A person commits an offense if the person violates an order adopted under this chapter. An offense under this section is a Class B misdemeanor. Added by Acts 2001, 77th Leg., p. 5214, eff. immediately. R24012D3.doc ATTACHMENT G -- 25 .. . - APPENDIX XIII OPEN BEACHES ACT, V.T.C.A., NATURAL RESOURCES CODE 9 63.001 ET SEQ. (NOTE: This appendix reproduces a copy of Chapter 63, Texas Natural Resources Code, as effective on September 1, 2001. It is provided for reference only. Any future amendments by the Texas Legislature that are inconsistent with any elements of the City of Corpus Christi Dune Protection and Beach Access Regulations supersede these regulations. Revised versions of Chapter 63 may be substituted without further action by the City Council.) CHAPTER 63. DUNES SUBCHAPTER A. GENERAL PROVISIONS 9 63.001. Findings of Fact The legislature finds and declares: (1) that the mainland gulf shoreline, barrier islands, and peninsulas of this state contain a significant portion of the state's human, natural, and recreational resources; (2) that these areas are and historically have been wholly or in part protected from the action of the water of the Gulf of Mexico and storms on the Gulf by a system of vegetated and unvegetated sand dunes that provide a protective barrier for adjacent land and inland water and land against the action of sand, wind, and water; (3) that certain persons have from time to time modified or destroyed the effectiveness of the protective barriers and caused environmental damage in the process of developing the shoreline for various purposes; (4) that the operation of recreational vehicles and other activities over these dunes have destroyed the natural vegetation on them; (5) that these practices constitute serious threats to the safety of adjacent properties, to public highways, to the taxable basis of adjacent property and constitute a real danger to natural resources and to the health, safety, and welfare of persons living, visiting, or sojourning in the area; (6) that it is necessary to protect these dunes as provided in this chapter because stabilized, vegetated dunes offer the best natural defense against storms and are areas of significant biological diversity; (7) that vegetated stabilized dunes help preserve state-owned beaches and shores by protecting against erosion of the shoreline; and (8) that different areas of the coast are characterized by dunes of various types and values, all of which should be afforded protection. Acts 1977, 65th Leg., p. 2499, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, 9 1, eff. Aug. 26,1985; Acts 1991, 72nd Leg., ch. 295, 9 18, eff. June 7, 1991. 9 63.002. Definitions In this chapter: R24012D3.doc ATTACHMENT H -- 1 - . (1) "Commissioner" means the Commissioner of the General Land Office. water. (2) "Barrier island" means an island bordering on the Gulf of Mexico and entirely surrounded by (3) "Peninsula" means an arm of land bordering on the Gulf of Mexico surrounded on three sides by water. (4) "Recreational vehicle" means a dune buggy, marsh buggy, minibike, trail bike, jeep, or any other mechanized vehicle that is being used for recreational purposes, but does not include any vehicle not being used for recreational purposes. (5) "Mainland shoreline" means all shoreline fronting on the open Gulf of Mexico that is not located on a barrier island or a peninsula. Acts 1977, 65th Leg., p. 2500, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, 92, eff. Aug. 26, 1985. 9 63.003. Effect of Chapter The provisions of this chapter do not apply to any dune area not accessible by public road or common carrier ferry facility for as long as that condition exists. Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, 93, eff. Aug. 26, 1985. SUBCHAPTER B. DUNE PROTECTION LINE 963.011. Establishing Dune Protection Line (a) After notice and hearing, the commissioners court of each county that has within its boundaries mainland shoreline, a barrier island, or a peninsula located on the seaward shore of the Gulf of Mexico shall establish a dune protection line on any such shoreline, island, or peninsula within its boundaries for the purpose of preserving sand dunes. (b) A county may allow a municipality within the county to administer this chapter within its corporate limits and extraterritorial jurisdiction. On delegation by a county, a municipality may adopt and apply any appropriate ordinances within its extraterritorial jurisdiction to effect the purposes of this chapter. (c) Municipalities and counties may enter into interlocal cooperation contracts for the administration of dune permit programs under The Interlocal Cooperation Act (Article 4413(32c), Vernon's Texas Civil Statutes). (d) The land office may assist and advise counties and municipalities in establishing or altering dune protection lines. Acts 1977, 65th Leg., p. 2500, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, 93, eff. Aug. 26,1985; Acts 1991, 72nd Leg., ch. 295, 9 19, eff. June 7, 1991. 9 63.012. Location of Dune Protection Line R24012D3.doc ATTACHMENT H -- 2 - . .'-'---1'" The dune protection line shall not be located further landward than a line drawn parallel to and 1,000 feet landward of the line of mean high tide of the Gulf of Mexico. Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. 9 63.013. Notice (a) Notice of a hearing to consider establishing the dune protection line shall be published at least three times in the newspaper with the largest circulation in the county. The notice shall be published not less than one week nor more than three weeks before the date of the hearing. (b) Notice shall be given to the commissioner not less than one week nor more than three weeks before the hearing. Acts 1977, 65th Leg., p. 2501, ch. 871, art. 1,91, eff. Sept. 1, 1977. 963.014. Map and Description of Dune Protection Line (a) The commissioners court or governing body of each municipality in establishing a dune protection line shall define the line by presenting it on a map or drawing, by making a written description, or by both. Each shall be designated appropriately and filed with the clerk of the county or municipality establishing the line and with the commissioner. (b) Notice of alterations in the dune protection line shall be filed with the clerk and with the commissioner, and the appropriate changes shall be made on the map, drawing, or description. Acts 1977, 65th Leg., p. 2501, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 20, eff. June 7,1991. 9 63.015. Dune Protection Line Prohibited No dune protection line may be established within a state or national park area, wildlife refuge, or other designated state or national natural area; provided, however, any state-owned or other public land not specifically exempted by this section shall be subject to the same requirements as private lands except as provided in Sections 31.161 through 31.167 of this code. Acts 1977, 65th Leg., p. 2501, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 921, eff. June 7,1991. SUBCHAPTER C. PERMITS 9 63.051. Permit Requirement An owner of land or a person holding an interest in land under the owner who desires to perform or allow any of the acts prohibited in Section 63.091 of this code must apply for a permit from the appropriate commissioners court or municipal governing body. Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 22, eff. June 7,1991. 963.052. Permit Not Required R24012D3.doc ATTACHMENT H -- 3 .. . No permit is required for the following activities: (1) grazing livestock; (2) production of oil and gas; and (3) recreational activity other than the operation of a recreational vehicle. Acts 1977, 65th Leg., p. 2501, ch. 871, art. 1,91, eff. Sept. 1, 1977. 9 63.053. Fees (a) The commissioners court or governing body of the municipality may require a reasonable fee to accompany the application. (b) Any commissioners court or governing body of a municipality that has adopted a dune protection line and is administering this chapter and that has a certified beach access plan as provided for in Section 61.015 of this code is hereby authorized, subject to all requirements of Chapter 61 of this code, to charge reasonable fees that do not exceed the cost for the provision and maintenance of public beach related facilities and services necessary to implement such plans, including but not limited to parking, public health and safety, environmental protection and matters contained in the certified beach access plans, and that do not unfairly limit access to and use of such beaches. Acts 1977, 65th Leg., p. 2501, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 923, eff. June 7,1991. 9 63.054. Review (a) The commissioners court or governing body of the municipality shall evaluate the permit application, and if the commissioners court or governing body of the municipality finds as a fact after full investigation that the particular conduct proposed will not materially weaken the dune or materially damage vegetation on the dune or reduce its effectiveness as a means of protection from the effects of high wind and water, it may grant the permit. (b) In determining whether or not to grant the permit, the commissioners court or governing body of the municipality shall consider the height, width, and slope of the dune, any significant environmental features of the dune, the feasibility and desirability of restoration of vegetation, and cumulative impacts and shall consider requirements for protection of critical dune areas. (c) Each county or municipality administering this chapter shall establish procedures and requirements governing the review and approval of dune permits, and these procedures and requirements shall be submitted to the commissioner and attorney general for their comments. Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 24, eff. June 7,1991. 9 63.055. Terms and Conditions of Permit The commissioners court or governing body of the municipality may include in a permit the terms and conditions it finds necessary to assure the protection of life, natural resources, and property. Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. R24012D3.doc ATTACHMENT H -- 4 .. . - Amended by Acts 1991, 72nd Leg., ch. 295, 9 25, eft. June 7,1991. 9 63.056. Notice to and Comments of Commissioner on Permits (a) After receiving an application for a permit to perform any of the acts prohibited in Section 63.091 of this code, the commissioners court or the governing body of the municipality shall notify the commissioner by sending, not less than 10 working days before the public hearing on the application, notice of the hearing and a copy of the application. (b) The commissioner may submit any written or oral comments regarding the eftect of the proposed activity on the dunes that protect state-owned land, shores, and submerged land. Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 926, eff. June 7,1991. 9 63.057. Permit for Certain Activity Prohibited (a) No permit may be issued that allows the operation of a recreational vehicle on a sand dune seaward of the dune protection line. (b) No permit may be issued that allows any activity in a critical dune area inconsistent with rules promulgated by the commissioner for protection of critical dune areas. Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, 9 1, eft. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 27, eft. June 7, 1991. SUBCHAPTER D. PROHIBITIONS 9 63.091. Conduct Prohibited Unless a permit is properly issued authorizing the conduct, no person may damage, destroy, or remove a sand dune or portion of a sand dune seaward of a dune protection line or within a critical dune area or kill, destroy, or remove in any manner any vegetation growing on a sand dune seaward of a dune protection line or within a critical dune area. Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, 93, eft. Aug. 26,1985; Acts 1991, 72nd Leg., ch. 295, 928, eft. June 7, 1991. 963.093. Prohibited Operation of Recreational Vehicles No person may operate a recreational vehicle on a sand dune seaward of the dune protection line in any county in which a dune protection line has been established. Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. SUBCHAPTER E. CRITICAL DUNE AREAS 9 63.121. Identification of Critical Dune Areas The commissioner, in his role as trustee of the public land of this state, shall identify the critical dune areas within 1,000 feet of mean high tide that are essential to the protection of state-owned land, R24012D3.doc ATTACHMENT H -- 5 . . - public beaches, and submerged land. The commissioner shall promulgate rules for the identification and protection of critical dune areas. Acts 1977, 65th Leg., p. 2503, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 30, eff. June 7,1991. 963.122. Notice to Counties After the commissioner has identified the critical dune areas, notice of the critical dune areas and the rules for their protection shall be given to the commissioners court of each county and the governing body of each municipality in which one or more of these areas is located. Acts 1977, 65th Leg., p. 2503, ch. 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 30, eff. June 7,1991. SUBCHAPTER F. APPEALS 9 63.151. Appeal by Littoral Owner A littoral owner aggrieved by a decision of the commissioners court or governing body of the municipality under this chapter may appeal to a district court in that county. Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 31, eff. June 7,1991. 963.152. Appeal by Commissioner The commissioner may appeal to a district court of that county any decision of the commissioners court or governing body of the municipality that the commissioner determines to be a violation of this chapter. Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, 9 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 9 31, eff. June 7,1991. SUBCHAPTER G. PENALTIES 9 63.181. Enforcement (a) The attorney general, individually or at the request of the commissioner, or any county attorney, district attorney, or criminal district attorney shall file in a district court of Travis County or in the county in which the violation occurred a suit to obtain either a temporary or permanent court order or injunction to prohibit and remedy any violation of this chapter or any rule, permit, or order under this chapter and to collect damages to natural resources injured by the violation and to recover civil penalties. (b) A person who violates this chapter or any rule, permit, or order under this chapter is liable for a civil penalty of not less than $50 nor more than $1,000. Each day that a violation occurs or continues constitutes a separate offense. Acts 1977, 65th Leg., p. 2503, ch 871, art. 1,91, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, 932, eff. June 7,1991. R24012D3.doc ATTACHMENT H -- 6 . . -"-"_.~ - ", -'. "\\ .. .. , , , .. .. , , , , , , .. , # ' -$ "J'./ it# 1;/ "" ./'/ . , .. . , , , , .. . ... , , , , , ... ... ... . / / , , . ... :1 / , ,:' . . ,/1 ... , . / ... .. / . / , . / , , , :,: ,'.' . I/t" ,.- . , , . , , . . . , . , , , . . , , . . . . . . , . , , / , . , . , , . , .. , . , . , / , . 4'/ 1/ 1/ ....f:,' ,., <oJ/ $" ~. J/ J;l , , , . 1 t;"PENDtX VII , . Designateg/ Beach Fee / // 1-- / ... , , , , .. ! APPENDIX VII DESIGNATED BEACH FEE AREAS j\ Berry'~ Olngl ~. n- T~:BjQ ""...looIl Corpus Christi Bay , . . . ~., ..:1/ $ .:f/ <t;/ / , .. / . . .. .. , .. ... ~CitYOf _ _Corpus =...::: Christi Q ? S e. I.. '" WHV 04FEB02 City of Co'pus Chllstl, Pl'nnlng Dep8<tment M ! I .. .. R24012D3.doc Gulf of Mexico Areas 4 ATTACHMENT 1-- 1 . . ------,..- APPENDIX XV PACKERY CHANNEL DESIGN CONCEPT SH381 BRIDGE MOLLIE f BEATTIE HABITAT COMMUNITY~"'" . ..l.. ...> ~ '~ oct ~C,y .!' ~...qcc NORTH SIDE NATURAL ~ :""- 8EACH PARK HABiTA.T . q,;IMPROVEMENTS OBSERVATION , \ AREA, ~. ~.~ /.;-~,\ "<"\ . '''"k <~ .... ~..- ~ ' '{' J .~",-" --~ \~j~~- N N SHORELINE STABILIZATION 1 I a l~ ~ I J ] ':>ADRE BALL.! :;OUNTY PARK l R24012D3.doc ATTACHMENT J-1 - . APPENDIX XVI PACKERY CHANNEL PUBLIC & ENVIRONMENTAL FACILITIES ~, i ,~, I \~ l "'I ,~, " ~~, , " '\\:I, \ \\ \ , \ \ ~ r /~;\ \ R24012D3.doc .. , 'II" I'! ;1 i%'~ ,!Ii'!. , ~ l ~ t3 ~ ~ . :li! 5 <l.: ~~', C!ai GE l '~G;j~~~l ~oliJ 4': tl ~~a :Z~B ~ 8: :I l..I"'; ~I.ii:z u 3:.;!: $' ~~~ ~p !Il tt?jg :.c:...., ~ I ~~~~~~ II ~ ~ i;l ~ ~I rl: 1i:~ ti ~ - - I ~ ~ -- - J - I I I II 81 {! D lv j -.. fL II ~' II V ~~ ~[ ~ I ~l I I ~==J: ,I I I I I ,I ~: ~j ATTACHMENT K-1 - ,.~("t n;\',~C~, \ . ~\('\" D'" ,.',\'\ \ ~\-.l; f \hl-\I"lv~~ -' ' PUBLISHER'S AFFIDAVIT n? ,.',~ ~ , l" l ,; . \ State of Texas County of Nueces ,,', Ii: 0 i } } ss: CITY OF CORPUS CHRISTI Ad # 4102877 PO # Before me, the undersigned, a Notary Public, this day personally came Eugenia Cortez, who being first duly sworn, according to law, says that she is Customer Service Manager of the Corpus Christi Caller-Times, a daily newspaper published at Corpus Christi in said City and State, generally circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that the publication of, NOTICE OF PASSAGE OF ORDINANCE NO. which the annexed is a true copy, was inserted in the Corpus Christi Caller-Times and on the World Wide Web on the Caller-Times Interactive on the 25TH day(s) of FEBRUARY. 2002. Olfri. No. olH ryl t TWO (2 ) Time(s) ~.... 2 t?~- Credit Customer Service Manager $163.85 Subscribed and sworn to me on the date of FEBRUARY 26.2002. '\ "I C J.el / 7].i17L (}( . -.f{(,iy .:.-_ Notary Public, Nueces County,Texas ROSA MARIA FLORES Print or Type Name of Notary Public My commission expires on 04/23/05. - - . D8/Co us Christi Caller-Times, Mor1da . Februa 2S, 2002 NOTICE OF PASSAGE OF ORDINANCE NO. 024778 Ordinance amending Ordinance No. 022164, whicti 1 adopted tha City of I Corpus Christi Texas, Dune Protection and I I Beach Access Regulations, by' , updating and revisl~ I Appendices I,: Industrial uses,' Permitted/Not Permitted; IV, Flo~ Chart otAppflcatlon Process for Master P I ann .8 cJt Davalopments; V, FJoyj, Ohart for Application; Process for Dun~,~ Protection. - Permit otj Be8chfront'1 Con s tor u c t 1'0"1 Certificate; VI; Designation of Acceaei :T~~~"'":jl' Motor Vehicles; VII; Designated Beach Foe Areas; VIII, InterlocaJ Agreement for Beactj Maintenance Withl. Nueces County; XI, 31 TAC ~~ 15.1'15.1Qj (Coastal Area Planning); XII, Dune_ Protection Act;" V.T.C.A., Natural Resources Code' ~1.001 at seq.; Xllli1l Open Beaches Act. V.T.C.A., Natural Resources Code I 63.001 at saq.; XIVd Founding Policies; an adding Appendix XV: Packery Channel Design Concept and Appendix XVI, Packery9 Channel Public an" ~ Environmentalj Facilities; providing fo,~ an effective daten providing for penalties, This ordinance was passed and approved by lha City Council of the- City of Cotpu.' Christi on February 19J 2002. . Is! Armando C"""; City Secreta'l/I "..-.C..itY Qf COl'P.u~ G,tuil!f! - -