Current through Reg. 49, No. 38; September 20, 2024
(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 §
15.4 of this title (relating to
Dune Protection Standards), and §
15.5 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. Notwithstanding the
general prohibition on constructing erosion response structures, a local
government may authorize the construction of a structural shore protection
project that conforms with the policies of the General Land Office promulgated
in 31 TAC §
26.26(b) of this
title (relating to Policies for Construction in the Beach/Dune System).
However, a local government may issue a permit or certificate authorizing
construction of a retaining wall, as defined in §
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 seaward of the
line of vegetation or the enlargement or improvement of the structure within
200 feet landward of the line of vegetation. Notwithstanding the general
prohibition on maintaining or repairing erosion response structures, a local
government may authorize the maintenance or repair of a structural shore
protection project that conforms with the policies of the General Land Office
promulgated in 31 TAC §
26.26(b). Also
within 200 feet landward of the line of vegetation, 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.
(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 Insurance 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.
(f) Construction
in eroding areas. Local governments with jurisdiction over eroding areas shall
follow the standards provided in §
15.4 of this title and §
15.5 of this title. If there is
any conflict between this subsection, §
15.4 of this title, and §
15.5 of this title, 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, not including amenities (however, permeable materials such as brick
pavers, gravel or crushed limestone may be used to construct 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
National Flood Insurance Program, local governments may permit the construction
of a storage area or areas with breakaway or louvered walls or for enclosures
required by local building or safety codes.
(5) Notwithstanding the provisions of
paragraph (3) of this subsection, a local government may allow a permittee to
place unreinforced fibercrete in 4 foot by 4 foot sections, 4 inches thick
separated by expansion joints beneath the footprint of the habitable structure,
as defined in Section
15.2 of this title, only if the
fibercrete is not structurally attached to the pilings. The placement of
unreinforced fibercrete will be entirely undertaken, constructed, and located
at least 25 feet from the landward toe of the foredunes. If no dunes exist,
placement of unreinforced fibercrete will only be undertaken, constructed, and
located at least 100 feet landward of the line of vegetation, or landward of an
eroding area boundary established in the local dune protection and beach access
plan, whichever distance is greater. Gravel or crushed limestone may be used to
construct driveways and parking areas in the area 50 feet landward of the line
of vegetation to the Dune Protection Line.
(g) Construction of certain parking areas or
walkways. Notwithstanding the standards provided in §
15.4(c)(8) of
this title, §
15.5(b)(3) of
this title, and subsection (f) of this section, if parking areas or walkways
for commercial facilities or public beach access facilities are required to be
accessible for persons with disabilities and the use of permeable materials is
not practicable, a local government may allow a concrete slab or other
impervious surface whose area does not exceed 5.0% of the square footage of the
property, upon demonstration of necessity by the applicant. If there is any
conflict between this subsection, §
15.4(c)(8) of
this title, §
15.5(b)(3) of
this title, and subsection (f) of this section, this subsection
applies.
(h) 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.
(i) Construction of dune walkovers or similar
structures. Proliferation of dune walkovers shall be minimized as provided for
in 15.4(f)(2)(B) of this title. Local governments shall require permittees to
construct dune walkovers in the following manner:
(1) Dune walkovers shall be constructed to
allow for the growth of dune vegetation and the migration of dunes under the
walkovers.
(A) The width of a dune walkover or
similar structure is limited to 4 feet wide, where practicable. An increased
width may be permitted for public access walkovers, shared walkovers for three
or more residences, or for wheelchair or golf-cart use with approval of the
local government. The need for a dune walkover or similar structure wider than
4 feet must be demonstrated during the permit application process.
(B) The lowest level of the walkover must be
of sufficient elevation to accommodate expected increases in dune height. At a
minimum, the lowest level of the dune walkover with a width of 4 feet or less
must be constructed at a height of at least 3 feet above the highest point of
the tallest dune crest beneath and immediately adjacent to the dune walkover. A
dune walkover with a width of greater than 4 feet must be constructed at an
adequate height that will allow for the growth of dune vegetation and migration
of dunes under the walkover. Exceptions to the height requirement may be made
for walkovers to descend to the beach over the foredune ridge.
(C) Slats forming the deck of the dune
walkover shall be spaced at least 1/2 inches apart so that sunlight and
rainfall can penetrate to vegetation below and so that sand will not accumulate
on the deck.
(2) Use of
concrete to stabilize dune walkover pilings is prohibited.
(3) For all new construction of public dune
walkovers in areas where vehicles are prohibited from driving on and along the
public beach, local governments are required to construct walkovers accessible
for persons with disabilities, where practicable.
(4) The requirements in paragraphs (1) - (3)
of this subsection apply to all new construction of dune walkovers and similar
structures and any major repairs to existing dune walkovers and similar
structures.
(j) 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 Beach/Dune Team regarding proposed cleanup
and disposal methods.
(2) The state
on-scene coordinator shall, in consultation with the state natural resource
trustees and the GLO Beach/Dune Team 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 §
15.7(e) of this
title (relating to Local Government Management of the Public Beach) 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 Commission
on Environmental Quality 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 §
15.2 of this title.
