| (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.
(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; (B) materials such as bulkheads, riprap, concrete, or asphalt rubble, building construction materials, and any non-biodegradable items; (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; (B) 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. (f) Scientific research projects. Local governments may exempt a scientific research project from the requirements of §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. (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. (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 availability 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. (j) Integration 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, §61.015, any beach user fee plan required under the Texas Natural Resources Code, §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. Cont'd... |
