Current through Reg. 49, No. 38; September 20, 2024
(a) Purpose. This
section provides procedures for the commissioner to adopt a disaster recovery
order with temporary standards for stabilization and repair of structures and
dune restoration during a period of recovery following a declared or natural
disaster and to assist local governments in restoring beach access and dune
protection.
(b) Applicability. This
section applies only to a local government with a local dune protection and
beach access plan within a coastal county that has been included in a disaster
declaration made by the governor under §
418.014, Texas
Government Code or in which a natural disaster has occurred, as determined by
the commissioner.
(c) Disaster
recovery orders. The commissioner may issue a disaster recovery order pursuant
to this section to authorize temporary standards for stabilization and repair
of structures, dune restoration, and other minimum measures needed to mitigate
for adverse effects to the public beach, public access points, and dune areas
caused by a damaging declared or natural disaster. The temporary standards
authorized by this section shall be effective for a period of two years from
the date of the issuance of disaster recovery order by the commissioner, unless
a shorter period of recovery is specified in the order.
(1) The disaster recovery order shall
identify the nature of the disaster, the name of the disaster and the time and
location of landfall (if applicable), any coastal county or counties to which
the order applies, the date of issuance, and the expiration date. The order is
effective upon issuance by the commissioner.
(2) Notice of the order issued under this
section shall be:
(A) posted on the General
Land Office's (GLO) Internet website;
(B) published by the GLO as a miscellaneous
document in the Texas Register; and
(C) sent to the governing body of a local
government to which the order applies.
(d) Conflict. The provisions of this section
supplement the Beach/Dune Rules (§§
15.1-
15.12 of this title). However, if
there is a conflict between this section and the provisions of the Beach/Dune
Rules, this section applies.
(e)
Definitions. In addition to the definitions contained in §
15.2 of this title (relating to
Definitions), the following words and terms, as used in this section, shall
have the following meanings:
(1) Beach
debris--Anything that is not native to the beach and beach/dune system, as
described in §
15.11(b) of this
title (relating to Repairs to Certain Houses Located Seaward of the Boundary of
the Public Beach).
(2) Boundary of
the public beach--The landward edge of the public beach, as described in §
15.3(b) of this
title (relating to Administration). For purposes of this section, the
commissioner may provide local governments with a temporary standard that
includes a demarcation of the landward boundary of the public beach based on
the standards set forth in Texas Natural Resources Code Ch. 61 when issuing
beachfront construction certificates and dune protection permits in locations
where the line of vegetation has been severely damaged by the disaster that
precipitated the recovery order.
(3) Coastal county--Any Texas county with a
Gulf-facing beach within its boundaries.
(4) Declared disaster--An event declared to
be a disaster by the governor under §
418.014, Texas
Government Code.
(5) Habitable--The
condition of a premises, as described in §
15.11(b) of this
title.
(6) House--A single or
multi-family structure, as described in §
15.11(b) of this
title.
(7) Natural disaster--An
event or force of nature that has catastrophic consequences, including, but not
limited to, tropical storms, hurricanes, extreme high tides, tsunamis,
earthquakes, tornadoes, and floods.
(8) Recovery dune restoration--Those response
measures that must be undertaken during a recovery period to construct a dune,
repair a damaged dune, or stabilize an existing dune in order to minimize
further threat or damage to coastal residents, structures and littoral
property.
(9) Recovery period--A
period of time commencing with the issuance of a disaster recovery order under
this section and ending with the expiration of the order, during which
temporary standards for stabilization and repair of structures and dune
restoration are in effect.
(10)
Recovery repair--Those actions that must be undertaken to render a structure
habitable or to prevent further damage during the recovery period. The term
"recovery repair" does not include reconnecting a house to utilities such as
sewer, water, and electricity. Reconnection to such utilities may only be made
in accordance with other applicable law or local ordinances.
(11) Recovery stabilization--Those actions
that must be undertaken to stabilize a residential structure that is subject to
collapse or substantial further damage as a result of erosion or undermining
caused by waves or currents of water exceeding normally anticipated cyclical
levels during a period of recovery from a disaster.
(12) Restoration Area--With respect to a dune
restoration project on the public beach, an area extending to the line of
vegetation as delineated by the commissioner in an order under this subsection
or an order issued under §
15.12(e) of this
title (relating to Temporary Orders Issued by the Land Commissioner).
(13) Shoreline protection project
repairs--Those response measures that must be undertaken during a period of
recovery from a disaster to repair an existing shoreline protection project to
a condition that affords protection from subsequent storms or tidal events or
prevents accelerated damage to littoral property.
(f) Recovery repair and recovery
stabilization of structures on the public beach.
(1) A local government may issue a
certificate or permit in accordance with this section for recovery repair and
recovery stabilization of a structure that encroaches or may encroach on the
public beach to the extent necessary to prevent an immediate threat to public
health, safety, and welfare.
(2) A
local government may authorize construction of an enclosed space with breakaway
or louvered walls at ground level that is consistent with the local dune
protection and beach access plan and National Flood Insurance Program, if the
foundation of the structure is intact.
(3) A local government may grant
authorization in accordance with this section for recovery repair of a
residential structure that encroaches or may encroach on the public beach, but
only if the structure is an eligible house under §
15.11 of this title and is not
subject to a pending enforcement action under this subchapter, the Open Beaches
Act (Texas Natural Resources Code, Chapter 61), or the Dune Protection Act
(Texas Natural Resources Code, Chapter 63). An enforcement action includes the
filing of a suit in district court, the referral of a matter for enforcement to
the attorney general or other public prosecutor, the initiation of an
enforcement action by the commissioner, or the issuance of a citation by a
local government for a violation of its dune protection and beach access
plan.
(4) A local government may
authorize the placement of beach-quality sand underneath the footprint of an
eligible house and in the area up to a distance of not more than five feet from
the structure's footprint where necessary to prevent further erosion due to
wind or water. The beach-quality sand must remain loose and cannot be placed in
bags.
(5) Clay or sandy clay may be
placed to fill voids under the footprint of a residential structure seaward of
the line of vegetation and beyond the footprint to the extent necessary to
restore a natural angle of repose up to a distance of not more than five feet
from the structure's footprint; provided, however, that clay or sandy clay used
for this purpose must be covered with beach quality sand, where practicable, to
a depth of at least 12 inches. Such actions are authorized in situations where
protection of the land immediately seaward of a structure is required to
prevent foreseeable undermining of habitable structures in the event of such
erosion.
(6) A local government may
authorize the use of clay or sandy clay to fill voids in order to protect
public infrastructure; provided, however, that clay or sandy clay sand used for
this purpose must be covered with beach quality sand, where practicable, to a
depth of at least 12 inches.
(7)
Beach-quality sand, clay, or sandy clay must not be placed seaward of mean high
tide without the consent of the commissioner.
(g) Authorized recovery dune restoration.
(1) A local government may issue a
certificate or permit for persons to construct clay core dunes and dunes
created solely with beach quality sand landward of the public beach and seaward
of the boundary of the public beach in the restoration area. A local government
shall ensure that the restoration area shall follow the natural meander or
migration of the post-storm boundary of the public beach. A local government
may issue permits and certification to allow the restoration of dunes on the
public beach only under the following conditions:
(A) Restored dunes may be located farther
seaward than the restoration area only to the limited extent necessary to
minimize further damage to coastal residents and littoral property, provided
such dunes shall not substantially restrict or interfere with the public use of
the beach at normal high tide.
(B)
A local government shall not allow any person to restore dunes, even within the
restoration area, if such dunes would effectively prohibit access to or use of
the public beach at normal high tide.
(2) Under no circumstances may sand or other
materials be placed below mean high tide without the consent of the
commissioner.
(h)
Authorized methods and materials for recovery dune restoration. A local
government may allow the following methods or materials for recovery dune
restoration:
(1) Dune restoration methods or
materials allowed in §
15.7(e)(6) of
this title (relating to Local Government Management of the Public
Beach);
(2) Clay core dunes;
provided, that clay or sandy clay used for this purpose must be covered with
beach-quality sand, to a depth of at least 24 inches, and such sand cover must
be maintained; provided, if clay is exposed, it must be recovered with sand to
maintain the minimum 24-inch cover or removed; and
(3) Recovery dunes constructed under this
section must not:
(A) result in increased
flooding to the site or adjacent property;
(B) aggravate erosion;
(C) result in adverse effects to dune
hydrology;
(D) increase the
vulnerability to washouts or blowouts; or
(E) interfere with the public's access to the
beach at normal high tide.
(4) A local government shall require persons
using vegetation to restore dunes to use indigenous dune vegetation.
(i) Review of dune protection
line. A local government having the authority to set the dune protection line
shall review the dune protection line within one year from the date of the
disaster recovery order issued under this section rather than 90 days required
under §
15.3(k) of this
title. All other requirements of §
15.3(k) of this
title shall apply.
(j) Authorized
beach access and dune protection measures.
(1)
In areas within 200 feet of the line of vegetation in an eroding area, the
local government may:
(A) use the landward toe
of a restored dune for determining the area in which the use of fibercrete is
allowed unless natural dunes form further landward. In eroding areas where
there is no dune or the dune has been obliterated by the disaster that
precipitated the order, the provisions of §
15.6(f)(5) of
this title (relating to Concurrent Dune Protection and Beachfront Construction
Standards) apply until a restored dune has been established in the area as
determined by a local government.
(B) allow construction underneath, outside,
or around the house that includes fibercrete or other materials necessary to
restore reasonable access to a house for disabled persons; provided that such
access existed prior to the disaster that is the subject of an order under this
section. This provision also applies to a house that has become located on the
beach or where there is no dune.
(2) A local government may provide temporary
access to beaches from off-beach parking areas by directing the public to the
nearest existing pathways to minimize the effects on dunes and dune vegetation
until dunes and walkovers are re-established or rebuilt. Temporary pathways
shall be conspicuously marked as beach access paths.
(3) A local government may, without a plan
amendment, temporarily close beach access points damaged beyond repair or
temporarily blocked by emergency shore protection projects to prevent damage to
infrastructure. In order to comply with this rule a local government must
notify the commissioner in writing of the temporary closure of such damaged
beach access point within 10 calendar days and specify the duration of the
closure. The local government must ensure that the period of limited beach
access in that area does not exceed the duration of the disaster recovery order
and must submit to the commissioner a timeline for amending the local plan or a
remedy to restore access no later than six months prior to the expiration of
the disaster recovery order issued under this section.
(k) Shoreline protection project repairs.
Except for the general prohibition on maintaining or repairing erosion response
structures in §
15.6(d) of this
title, a local government may authorize repairs to an existing shoreline
protection project, subject to the following limitations:
(1) Repairs to existing shoreline protection
projects may be permitted to minimize further damage to coastal residences and
littoral property, provided the existing shoreline protection project does not
substantially restrict or interfere with the public use and access of the beach
at normal high tide;
(2) A local
government shall not authorize any person to repair a shoreline protection
project that is located below the boundary of coastal public land;
and
(3) The existing shoreline
protection project must conform to the policies of the General Land Office
promulgated in §
26.26(b) of this
title (relating to Policies for Construction in the Beach/Dune
System).
(l) Prohibition
on certain materials. A local government shall not allow any person to
undertake dune restoration projects or temporary shoreline protection projects
using any of the following methods or materials:
(1) Materials such as bulkheads, riprap,
concrete (including sprayed concrete), or asphalt rubble, building construction
materials, and any non-biodegradable items;
(2) Sediments containing the hazardous
substances listed in Appendix A to §302.4 in Volume 40 of the Code of
Federal Regulations, Part 302 in concentrations which are harmful to people,
flora, and fauna as determined by applicable, relevant, and appropriate
requirements for toxicity standards established by the local, state, and
federal governments; or
(3) Sand
obtained by scraping or grading dunes, or from beaches in eroding
areas.
(m) Repair of
sewage or septic systems. If the Texas Commission on Environmental Quality or
its designated local authority, the Texas Department of State Health Services,
or a local health department has made a determination that a sewage or septic
system located on or adjacent to the public beach poses a threat to the health
of the occupants of the property or public health, safety, or welfare, and
requires removal of the sewage or septic system, the sewage or septic system
shall be located in accordance with §
15.5(b)(1) of
this title (relating to Beachfront Construction Standards) and §
15.6(b) and
(e)(1) of this title.
(n) Authorized beach maintenance practices.
If a material change in conditions occurs, such as significant beach erosion
caused by a declared or natural disaster, the commissioner may require a local
government affected by an order issued under this section to suspend the
authority of a permittee to scrape a beach under a previously issued beach
maintenance permit. The local government may require a permittee to obtain a
new permit incorporating beach maintenance practices consistent with the
changed conditions. The commissioner shall be given an opportunity to comment
on any such new permit application.
(o) Removal of beach debris. The GLO is
responsible for clearing debris from the public beach in accordance with Texas
Natural Resources Code, §
61.067. While
an order issued under this section is in effect, a local government with the
duty to clean and maintain the public beach shall coordinate with the GLO and,
where appropriate, littoral property owners to remove beach debris from the
public beach as soon as possible. All beach debris collected from the public
beach shall be removed from the beach/dune system and disposed of in an
appropriate landfill.
(p) GLO
review. A local government shall submit the certificate or permit applications
for recovery repair, recovery dune restoration, or any other activity
authorized under this section to the commissioner for review. If the
commissioner does not object to or otherwise comment on the application within
10 working days of receipt of an application, the local government may act on
the application. Local governments shall require that all permit and
certificate applicants fully disclose in the application all items and
information necessary for the local government to make a determination
regarding a permit or certificate for repairs. Local governments may require
more information, but the following information shall be submitted to the GLO:
(1) the name, address, phone number, and, if
applicable, electronic mail address of the applicant, and the name of the
property owner, if different from the applicant;
(2) a complete legal description of the tract
and a statement of its size in acres or square feet including the location of
the property lines and a notation of the legal description of adjoining
tracts;
(3) the floor plan,
footprint or elevation view of the house identifying the proposed
repairs;
(4) color photographs of
the site which clearly show the current conditions of the site; and
(5) an accurate map, site plan, plat, or
survey of the site identifying:
(A) the site
by its legal description, including, where applicable, the subdivision, block,
and lot;
(B) the location of the
property lines and a notation of the legal description of adjoining tracts, and
the location of any roadways, driveways and landscaping that currently exist on
the tract;
(C) the location of any
seawalls or any other erosion response structures on the tract and on the
properties immediately adjacent to the tract;
(D) the location of the house and the
distance between the house and mean high tide, mean low tide, and the line of
vegetation;
(E) if known, the
location and extent of any man-made vegetated mounds, restored dunes, fill
activities, or any other pre-existing human modifications on the tract;
and
(F) if the proposed action
includes a recovery dune restoration project, grading and layout plan
identifying existing contours of the project area (including the location of
dunes and swales), and proposed contours for final grade.
(6) the source of any sand and vegetation
used for a recovery dune restoration project; and;
(7) any other information requested by the
local government or the GLO that is necessary to determine whether the
application is consistent with this section.
(q) Monitoring. A local government is
responsible for monitoring a recovery stabilization, recovery repair, recovery
dune restoration project, or shoreline protection project repair under this
section. A local government may conduct a monitoring program to study the
effects of such projects on the public's access to and use of the public beach.
Expenses related to the monitoring program are considered beach-related
services for the purpose of this subchapter.
(r) Effect on actions for removal. This
section does not create a property right of any kind in the littoral property
owner. Houses eligible for repairs to maintain habitability under this section
may also be encroachments on and interferences with the public beach easement.
Except as provided in an unexpired temporary order issued by the commissioner
under §
61.0185 of the
Texas Natural Resources Code, the commissioner, the attorney general, a county
attorney, district attorney, or criminal district attorney may file suit under
Texas Natural Resources Code §
61.018(a)
to obtain a temporary or permanent injunction, either prohibitory or mandatory,
to remove a house from the public beach without regard to whether the house is
eligible for repairs under this section.
