Current through Reg. 49, No. 38; September 20, 2024
(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 line of vegetation.
(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) Restoration of dunes on public beaches.
Sand dunes, either naturally created or restored, may aid in the preservation
of the coastal environment by providing a protective barrier against beach
erosion processes. Except as otherwise provided, local governments shall allow
restoration of dunes on the public beach no more than 20 feet seaward of the
landward boundary of the public beach. 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 and would not restrict or interfere with public
access to the beach at normal high tide. Such seaward extension past the
20-foot area must first receive prior written approval of the General Land
Office. In the absence of such an affirmative demonstration by the applicant, a
local government shall require the applicant to meet the requirements provided
in §
15.4(f)(3) of
this title (relating to Dune Protection Standards) and 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, 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, discontinuous sand fences
conforming to the most recent edition of the General Land Office Dune
Protection and Improvement Manual for the Texas Gulf Coast
guidelines;
(C) organic brushy
materials such as used Christmas trees and seaweed; 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.
(8) Local governments
shall not allow a permittee to construct or maintain a structure on the
restored dunes that are seaward of a dune protection line, except for
specifically permitted dune walkovers or similar access ways.
(9) All applications submitted to a local
government for the restoration of dunes on the public beach shall be forwarded
to the General Land Office at least 10 working days prior to the local
government's consideration of the permit. Failure of the General Land Office to
submit comments on an application shall not waive, diminish, or otherwise
modify the beach access and use rights of the public.
(f) Scientific research projects. Local
governments may exempt a scientific research project from the requirements of
§
15.4(c) of this
title 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. 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 permittees to construct dune walkovers in a manner that complies with
§
15.6(i) of this
title (relating to Concurrent Dune Protection and Beachfront Construction
Standards).
(4) 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
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.
(B) In cases 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, close a public beach to pedestrian or
vehicular traffic, or modify public beach parking without prior approval from
the General Land Office. The General Land Office may approve and certify a
local government's modification to their beach access and use plan based upon
the General Land Office's affirmative finding that such modifications preserve
or enhance the public's right to use and access the public beach.
(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, including access for persons with
disabilities.
(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 and this subchapter.
(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. The GLO must be notified by the local government as soon as
practicable of any emergency closures.
(5) A local government may not restrict
vehicular traffic from a public beach unless it preserves or enhances beach
access for persons with disabilities. For the purposes of vehicular
restrictions only, beach access for persons with disabilities is presumed to be
preserved if the following criteria are met:
(A) Where vehicles are prohibited from
driving to mean high tide, at least one access way with a stable,
slip-resistant surface to the approximate high tide line is provided in each
jurisdiction and signs identifying the accessible beach access route are
conspicuously posted at the landward terminus of the access route.
(i) Where a local government can demonstrate
that providing and maintaining a stable, slip-resistant surface to the
approximate high tide line is not practicable, local governments shall provide
an alternate means of access for persons with disabilities, such as beach
wheelchairs.
(ii) In areas where
vehicular access is prohibited, local governments have until December 31, 2023
to come into compliance with the above provisions.
(B) In areas where vehicles are prohibited
from driving on and along the beach, golf carts must also be prohibited.
However, the local government must allow the use on the beach of a golf cart,
as defined by §
551.401, Texas
Transportation Code, if:
(i) the golf cart is
being operated by or for the transportation of a veteran with disabilities or a
person with a physical disability; and
(ii) a disabled parking placard issued under
§
681.004, Texas
Transportation Code, is displayed in a conspicuous manner on the golf
cart.
(C) The local
government must provide at least one ingress/egress access way accessible to
golf carts for each area of the beach where vehicles are prohibited.
(D) A local government may limit the use of
golf carts for the transportation of a person with a physical disability to
electric powered golf carts.
(E) In
this section, "golf cart" has the meaning assigned by §331.401, Texas
Transportation Code and "public highway" has the meaning assigned by §
502.001, Texas
Transportation Code.
(i) Request for General Land Office approval
of beach access plans. When requesting approval of or an amendment to a beach
access plan, a local government shall submit a new or amended plan to the
General Land Office providing the information and following procedures outlined
in §
15.3(o) of this
title (relating to Administration) and the following information:
(1) a current description and map of the
entire beach access system within its jurisdiction;
(2) a detailed 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, including access for persons with disabilities;
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 detailed description of any proposed
changes to vehicular access;
(D) a
statement of short-term or long-range goals for restricting or regulating
vehicular access and use;
(E) 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; and
(F) 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.
(k) General Land Office 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 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, §
61.022.
(l) If the General Land Office determines
that existing beach access or proposed changes to 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. 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.
(m) 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 balance of gains and
losses in the sand budget and the natural cycle of nutrients.
(n) Request for temporary approval of seaweed
relocation. During an extraordinary seaweed landfall event, a local government
may submit a written request to the General Land Office for approval to
relocate seaweed.
(1) Approval to relocate
seaweed may be requested in areas where:
(A)
the beach is restricted by an erosion response structure;
(B) the erosion response structure prevents
the reasonable employment of GLO approved routine seaweed maintenance
practices, and
(C) the use of
routine seaweed maintenance practices in such areas would significantly
restrict or impair public beach access and use.
(2) The General Land Office will review each
request to determine whether a seaweed landfall event is extraordinary and if
it impairs or restricts public beach access and use. The General Land Office
will evaluate any proposed seaweed management activities for consistency with
the Open Beaches Act, the Dune Protection Act, and the Beach/Dune rules. The
General Land Office's approval will be valid for up to 120 days. The request
must include a comprehensive seaweed management plan that, at a minimum,
provides the following items:
(A) a
description of how the seaweed event is extraordinary, including supporting
documentation, such as color photographs;
(B) information justifying how routine
maintenance practices cannot be reasonably employed without restricting or
impairing public beach access and use during the seaweed landfall
event;
(C) a complete description
of the geographic scope of proposed seaweed management activities, including a
map or site plan which identifies the line of vegetation in relation to the
seaweed placement area;
(D) a
complete description of the proposed seaweed management activities, expected
schedule of activities, and why other alternatives are not
practicable;
(E) a detailed
description of how the proposed seaweed management activities will not
materially affect the beach profile, public beach access and use, dunes and
dune vegetation, dune hydrology, or beach erosion;
(F) a detailed description of how the seaweed
management activities will not result in significant or permanent removal of
sand from the beach and dune system;
(G) a description of the equipment to be
used;
(H) a comprehensive dune
mitigation plan, if dunes or dune vegetation will be adversely
affected;
(I) information
describing how wildlife will be avoided and a copy of the wildlife monitor's
certificate or a certification that a monitor is not required; and
(J) a description of any coordination with
applicable local, state, and federal agencies that will be
required.
(3) Within 60
days after the expiration of the approved seaweed management plan, the local
government must assess the impacts of the seaweed management activities, and
provide the General Land Office with a detailed assessment report describing
any benefits or challenges with implementing the activities employed and any
affects those activities had on the beach profile, public beach access and use,
dunes and dune vegetation, dune hydrology, beach erosion, and any mitigation
activities conducted.
(o)
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.
