Current through Reg. 49, No. 38; September 20, 2024
(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. The line of
vegetation is typically used to determine the landward extent of the public
beach. However, there are portions of the Texas coast where there is no marked
vegetation line or the line is discontinuous or modified. In those portions of
the coast, the line of vegetation shall be determined consistent with §
15.10(b) of this
title (relating to General Provisions) and the Open Beaches Act, §61.016
and §61.017.
(1) If there is no clearly
marked line of vegetation, the "line of vegetation" delineating the public
beach shall be the line of constant elevation connecting two clearly marked
lines of vegetation of equal elevation on each side, but if there are no
clearly marked lines of vegetation on each side, the "line of vegetation" shall
not extend inland further than 200 feet from the seaward line of mean low
tide.
(2) If there is no clearly
marked line of vegetation, the "line of vegetation" delineating the public
beach shall be the line of average elevation connecting two clearly marked
lines of vegetation of unequal elevation on each side, but if there are no
clearly marked lines of vegetation on each side, the "line of vegetation" shall
not extend inland further than 200 feet from the seaward line of mean low
tide.
(3) If the vegetation line
has been obliterated or is created artificially and 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 the public easement.
(4)
If the commissioner has issued an order under §
15.12 of this title (relating to
Temporary Orders Issued by the Land Commissioner) or §
15.13 of this title (relating to
Disaster Recovery Orders) the line of vegetation shall be delineated in
accordance with the order(s).
(5)
When a Beachfront Construction Certificate/Dune Protection Permit application
is submitted to the General Land Office for review and comment, the line of
vegetation depicted on any map, aerial photograph, or other documentation shall
be subject to verification by the General Land Office.
(6) The determination of the location of the
line of vegetation by the commissioner of the General Land Office as provided
by the Open Beaches Act, §§61.016 - 61.017 and 61.0171, constitutes
prima facie evidence of the landward boundary of the area subject to the public
easement until a court adjudication establishes the line in another
place.
(c) Beachfront
construction certification areas. The General Land Office has the
responsibility of protecting the public's right to use and have access to and
from the public beach and of providing standards to the local governments
certifying construction on land adjacent to the Gulf of Mexico consistent with
such public rights. The Open Beaches Act, §61.011(d)(6), limits the
geographic scope of the beachfront construction certification area to the land
adjacent to and landward of public beaches and lying in the area either up to
the first public road generally parallel to the public beach or to any closer
public road not parallel to the beach, or the area up to 1,000 feet of mean
high tide, whichever distance is greater. For this area, local governments
shall prepare a beach access and use program, pursuant to the Open Beaches Act,
§61.015, for inclusion in their dune protection and beach access plans to
control any adverse effects of beachfront construction on public beach use and
access. Applications for beachfront construction certificates shall be reviewed
by local governments for consistency with their dune protection and beach
access plans.
(d) 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, §63.121 and §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, §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 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 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.
(f) Establishment of dune protection lines.
Pursuant to the authority provided in the Dune Protection Act, §63.011,
local governments shall establish and maintain dune protection lines which
preserve, at a minimum, the dunes within the critical dune areas as defined in
this subchapter. The establishment of the line should include the protection of
critical dune areas from erosion caused by natural forces and development on
adjacent land. Accordingly, the Dune Protection Line should be established in a
location that will allow local governments to implement Texas Natural Resources
Code, §
33.607. A
local government must conduct a field inspection to determine the approximate
location of the line unless it proposes to establish or relocate its line at a
distance of 1,000 feet of mean high tide of the Gulf of Mexico, as that 1,000
feet is the maximum extent of the local government's jurisdiction for
establishing dune protection lines.
(g) 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. Pursuant to the Dune Protection Act, §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.
(j) 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.
(l) 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
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.
(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, the Open Beaches Act
and Texas Natural Resources Code §
33.607. 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.
(o)
Consultation on and submission of local government plans to the General Land
Office. Local governments shall submit dune protection plans, beach access
plans, erosion response plans under Texas Natural Resources Code Chapter 33,
and 31 TAC §
15.17, and any amendments to those
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.
(1) A local government's governing body
must formally approve the plan or amendments to the plan prior to submission to
the General Land Office for certification. Prior to formally approving its
plan, a local government may consult with or request legal and technical advice
from the General Land Office on meeting the requirements for state agency
approval. The General Land Office will provide written guidance on the form and
content of the plan or amendment prior to formal approval upon request by a
local government.
(2) Review of
plan and amendments. The General Land Office shall either grant or deny
certification of a local government's formally approved dune protection and
beach access plan or any amendments within 90 days of receipt of the plan.
(A) Depending upon the degree or complexity
of modifications contained in the plan amendment, the local government may
request a review period shorter than 90 days based on the following guidelines:
(i) An expedited review period of 30 days may
be requested for review of a plan amendment that is administrative in nature
and does not contain variances nor substantially alter beach access or dune
protection.
(ii) A standard review
period of 60 days may be requested for review of a plan amendment that does not
contain any changes to beach user fees, beach access points, changes to
vehicular access, nor substantially alter beach access or dune
protection.
(iii) The local
government shall provide a reasoned justification with any request for a review
period of less than 90 days. It must include a detailed description of the
proposed changes that will result from the amendment.
(iv) The General Land Office will make a
determination on the eligibility of an amendment for a shortened review period
and notify the local government of the determination within 10 working days (to
run concurrently with the applicable review period) from the date the request
and complete package of information regarding the proposed amendment is
received. Review of plan amendments that do not qualify for a shortened review
period will be completed by the General Land Office within the allowed 90 day
period.
(B) In the event
of denial, the General Land Office shall send the plan back to the local
government with a statement of specific objections and the reasons for denial
of certification, along with suggested modifications. On receipt, the local
government shall revise and resubmit the plan for review.
(3) The General Land Office's certification
of local government plans shall be by adoption into the rules authorized under
the Texas Natural Resources Code, §
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.
(4) A local government
may adopt a new or amend their dune protection and beach access plan by
submitting the plans or proposed changes to the General Land Office for review,
comment, and certification. A request for approval of a plan or any amendments
to a plan must include the governing body's formal approval, a description of
all major proposed changes, and a version of the plan identifying all proposed
changes.
(5) 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;
however, the local government must include in writing a reasoned justification
and clearly demonstrate to the General Land Office and public how the variance
is equal to or more protective of the goals and policies contained in §
15.1 of this title (relating to
Policy).
(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 no
later than 180 days from the effective date of this subchapter. If the General
Land Office does not approve a plan, the local government shall submit
revisions of the plan until the plan is approved. However, any local government
that submits a revised plan that has not been modified to address the state
comments regarding the statutory requirements and the minimum standards
identified in this subchapter is presumed to be in violation of this
subchapter, the Open Beaches Act, and the Dune Protection Act. Local
governments that fail to submit plans within 180 days of the effective date of
this subchapter will be liable for penalties as provided in §
15.9 of this title (relating to
Enforcement, Penalties and Remedial Orders). 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) Compliance with the Open Beaches Act and
exemptions from local government plan requirements.
(1) Local government dune protection and
beach access plans shall not include the following areas, which are exempt from
regulation by local governments:
(A) national
park areas, national wildlife refuges, or other designated national natural
areas;
(B) state park areas, state
wildlife refuges, or other designated state natural areas; and
(C) beaches on islands and peninsulas not
accessible by public road or ferry facility for as long as that condition
exists.
(2) The Open
Beaches Act applies to state and national park and wildlife management areas
located on islands or peninsulas, regardless of whether the park is accessible
by public road or ferry, as provided for in Texas Natural Resources Code,
§
61.0211.
(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, as provided for in
Texas Natural Resources Code, §
61.022 and
§
63.015,
subject to the provisions of the Texas Natural Resources Code, §§
31.161 and
31.167.
(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 dune protection
permit requirements. Pursuant to the Dune Protection Act, §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, persons shall comply
with the local laws as well. The activities exempt from the dune protection
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 as defined in
§
15.2 of this title other than
operation of a recreational vehicle.
(3) Acts prohibited without a beachfront
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.
(4) No person shall violate Texas Natural
Resources Code Chapter 61 and 63, these rules, the requirements of a local
government plan, or the terms of a certificate or permit issued pursuant to
this chapter.
(5) Dune protection
permit and beachfront construction 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) Dune protection 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, electronic mail address 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) a description of the
proposed structures, the number of 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 elevation 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 dune walkovers and walkways, and design
plans and elevation views for any proposed walkways or dune walkovers on the
tract;
(ix) a grading and layout
plan identifying all existing and proposed elevations (in reference to the
National Oceanic and Atmospheric Administration data), existing contours of the
project area (including the location of dunes and swales), and proposed
contours for final grade;
(x)
current color photographs of the site which clearly show the current location
of the vegetation line and the existing dunes on and immediately adjacent to
the tract;
(xi) a description of
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 conforms with the requirements in §
15.4 of this title (relating to
Dune Protection Standards) and §
15.7 of this title (relating to
Local Government Management of the Public Beach) which, at a minimum, 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) where a
mitigation plan is required, the contact information for all landowners
immediately adjacent to the tract and affirmation by the applicant that the
adjacent landowners will be provided with notice of the hearing at least 10
days prior to the hearing on the application;
(xiv) proof of the applicant's financial
capability acceptable to the local government to mitigate or compensate for
adverse effects on dunes and dune vegetation;
(xv) an accurate map, site plan, survey, 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;
(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 retaining walls,
seawalls or any other erosion response structures on the tract and on the
properties immediately adjacent to the tract and within 100 feet of the common
property line; 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.
(B)
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, electronic mail address 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) a description of the proposed
structures, the number of 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 dune walkovers and walkways,
and design plans and elevation views for any proposed walkways or dune
walkovers on the tract;
(vii)
current color 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, survey, 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;
(III) the location of the proposed
construction and the distance between the proposed construction and mean high
tide, the line of vegetation, 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, including the
installation of fencing; and
(VII)
the location of any retaining walls, seawalls, 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 unplatted 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 General Land Office the following information:
(i) a copy of the community's most recent
flood insurance rate map identifying the site of the proposed
construction;
(ii) a preliminary
determination as to whether the proposed construction complies 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.
(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.
(6) 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 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.
(7) General Land Office 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, any associated material, and, where
applicable, notice of public hearing to the General Land Office. The
application, hearing notice, any documents associated with the application, and
information as to when the decision will be made must be received by the
General Land Office no later than 10 working days for small-scale construction
and 30 working days for large-scale construction before the date of the local
government's public hearing on the application or when the local government is
first scheduled to act on the permit or certificate. A local government may act
on such applications following the public hearing or a decision by the
commissioner's court or municipal governing body if the General Land Office
received the application within the proper time frame and the General Land
Office provides comments or does not submit comments on the application to the
local government.
(B) The General
Land Office may submit comments on the proposed activity to the local
government. The review period for comments of 10 working days for small-scale
construction and 30 working days for large-scale construction is initiated only
after the receipt by the General Land Office of all information required by
this section.
(8) 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;
(C) 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
(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 and landowners immediately adjacent to the tract. 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, amendment, 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 original issuance, unless
additional time has been provided by a renewal.
(2) Prior to the expiration of a certificate
or permit, a local government may renew a dune protection permit or beachfront
construction certificate allowing proposed construction to continue if there
are no material changes to the site or proposed activities and the activity in
the application for renewal meets the applicable state and local standards.
(A) As part of a renewal request, the
permittee shall supplement the information provided in the original permit or
certificate application materials with a statement describing the absence of or
any changes to the site, project plans, or any other original information
provided by the permittee.
(B) For
the purpose of maintaining administrative records, local governments shall keep
all original application and renewal materials submitted by any applicant as
provided in subsection (u) of this section.
(C) Each renewal of a permit and certificate
allowing construction shall be valid for no more than 90 days.
(D) 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.
(3) 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, General
Land Office-approved ordinance or county commissioner's 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.
(4) 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 by the local government 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.
(B) A
material change occurs after the permit or certificate is issued.
(C) A permittee fails to disclose any
material fact in the application.
(5) In the event of a material change to the
site conditions or the proposed construction since approval of the original
application, a local government shall require that an applicant or permittee
amend an application for a permit or certificate, or obtain a new permit or
certificate. All information relevant to the material changes, such as site
conditions, project plans, and required changes to mitigation or compensation,
must be disclosed by the applicant or permittee to the local government. The
local government will submit the amended application for a permit or
certificate or new application to the General Land Office for review and
comment.
(6) 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) the
permit, certificate, and any other relevant authorization that was issued in
response to the application or in connection with the permit or certificate
issued;
(B) all materials the local
government received from the applicant as part of or regarding the permit or
certificate application or any association renewal or amendment;
(C) the transcripts, if any, or the minutes
and recordings of the local government's meeting during which a final decision
regarding the permit or certificate was made; and
(D) all comments and other correspondence
sent or received by the local government regarding the permit or
certificate.
(2) Local
governments shall keep the administrative record for a minimum of four years
from the expiration date of a permit or certificate.
(A) Local governments shall send to the
General Land Office upon request a copy of those portions of the administrative
record that were not originally sent to the General Land Office for permit or
certificate application review and comment. The record must be received by the
General Land Office no later than 10 working days after the local government
receives the request.
(B) The
General Land Office 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).
