| (a) Dune protection required. This section provides
the standards and procedures local governments shall follow in issuing,
denying, or conditioning dune protection permits. A local government
shall protect dunes and dune vegetation from adverse effects resulting
directly or indirectly from construction in a critical dune area or
seaward of its dune protection line, as cumulatively required by the
Dune Protection Act, this subchapter, and that local government's
dune protection and beach access plan.
(b) Procedures for local government permit determinations
and permit issuance. Before issuing a dune protection permit, a local
government shall make the following determinations.
(1) The proposed activity is not a prohibited activity
as defined in subsection (c) of this section, §15.5 of this title
(relating to Beachfront Construction Standards), or §15.6 of
this title (relating to Concurrent Dune Protection and Beachfront
Construction Standards).
(2) The proposed activity will not materially weaken
dunes or materially damage dune vegetation based on the application
of technical standards resulting in substantive findings under subsection
(d) of this section.
(3) There are no practicable alternatives to the proposed
activity and the impacts cannot be avoided as provided in subsection
(f)(1) of this section.
(4) The applicant's mitigation plan will adequately
minimize, mitigate, and/or compensate for any unavoidable adverse
effects, as provided in subsections (f)(2) - (5) of this section and
the applicant has affirmatively demonstrated the ability to mitigate
adverse effects on dunes and dune vegetation.
(5) Where mitigation is required, that the applicant
has provided landowners immediately adjacent to the tract with notice
of the hearing at least 10 days prior to the hearing on the application.
(c) Prohibited activities. A local government shall
not issue a permit or certificate authorizing the following actions
within critical dune areas or seaward of that local government's dune
protection line:
(1) activities that are likely to result in the temporary
or permanent removal of sand from the portion of the beach/dune system
located on or adjacent to the construction site, including:
(A) moving sand to a location landward of the critical
dune area or dune protection line; and
(B) temporarily or permanently moving sand off the
site, except for purposes of permitted mitigation, compensation, or
an approved dune restoration or beach nourishment project and then
only from areas where the historical accretion rate is greater than
two feet per year, and the project does not cause any adverse effects
on the sediment budget;
(2) depositing sand, soil, sediment, or dredged spoil
which contains the hazardous substances 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;
(3) depositing sand, soil, sediment, or dredged spoil
which is of an unacceptable mineralogy or grain size when compared
to the sediments found on the site (this prohibition does not apply
to materials related to the installation or maintenance of public
beach access roads running generally perpendicular to the public beach)
(4) creating dredged spoil disposal sites, such as
levees and weirs, without the appropriate local, state, and federal
permits;
(5) constructing or operating industrial facilities
not in full compliance with all relevant laws and permitting requirements
prior to the effective date of this subchapter;
(6) operating recreational vehicles;
(7) mining dunes;
(8) constructing concrete slabs or other impervious
surfaces within 200 feet landward of the line of vegetation. Local
governments may authorize construction of a concrete slab or other
impervious surface beneath a habitable structure elevated on pilings
provided the slab will not extend beyond the perimeter of the structure
and will not be structurally attached to the building's foundation.
Local governments shall not authorize the construction, outside the
perimeter of a habitable structure, of a concrete slab or other impervious
surface whose area exceeds 5.0% of the footprint of the habitable
structure. The use of permeable materials such as brick pavers, limestone,
or gravel is recommended for drives or parking areas;
(9) depositing trash, waste, or debris including inert
materials such as concrete, stone, and bricks that are not part of
the permitted on-site construction;
(10) constructing cisterns, septic tanks, and septic
fields seaward of any structure serviced by the cisterns, septic tanks,
and septic fields; and
(11) detonating bombs or explosives.
(d) Technical standards for local government determination
as to material weakening of dunes and material damage of dune vegetation
within a critical dune area or seaward of a dune protection line.
A local government may approve a permit application only if it finds
as a fact, after a full investigation, that the particular conduct
proposed will not materially weaken any dune or materially damage
dune vegetation or reduce the effectiveness of any dune as a means
of protection against erosion and high wind and water. In making the
finding as to whether such material weakening or material damage will
occur, a local government shall use the following technical standards.
Failure to meet any one of these standards will result in a finding
of material weakening or material damage and the local government
shall not approve the application for the construction as proposed.
(1) The activity shall not result in the potential
for increased flood damage to the proposed construction site or adjacent
property.
(2) The activity shall not result in runoff or drainage
patterns that aggravate erosion on or off the site.
(3) The activity shall not result in significant changes
to dune hydrology.
(4) The activity shall not disturb unique flora or
fauna or result in adverse effects on dune complexes or dune vegetation.
(5) The activity shall not significantly increase the
potential for washovers or blowouts to occur.
(e) Local government considerations when determining
whether to issue a dune protection permit. Local governments shall
consider the following items and information when determining whether
to grant a permit:
(1) all comments submitted to the local government
by the General Land Office;
(2) cumulative and indirect effects of the proposed
construction on all dunes and dune vegetation within critical dune
areas or seaward of a dune protection line;
(3) cumulative and indirect effects of other activities
on dunes and dune vegetation located on the proposed construction
site;
(4) the pre-construction type, height, width, slope,
volume, and continuity of the dunes, the pre-construction condition
of the dunes, the type of dune vegetation, and percent of vegetative
cover on the site;
(5) the most recent historical erosion rate as determined
by the University of Texas at Austin, Bureau of Economic Geology,
and whether the proposed construction may alter dunes and dune vegetation
in a manner that may aggravate erosion;
(6) the applicant's mitigation plan for any unavoidable
adverse effects on dunes and dune vegetation and the effectiveness,
feasibility, and desirability of any proposed dune reconstruction
and revegetation;
(7) the impacts on the natural drainage patterns of
the site and adjacent property;
(8) any significant environmental features of the potentially
affected dunes and dune vegetation such as their value and function
as floral or faunal habitat or any other benefits the dunes and dune
vegetation provide to other natural resources;
(9) wind and storm patterns including a history of
washover patterns;
(10) location of the site on the flood insurance rate
map; and
(11) success rates of dune stabilization projects in
the area.
(f) Mitigation. The mitigation sequence shall be used
by local governments in determining whether to issue a permit, after
the determination that no material weakening of dunes or material
damage to dunes or dune vegetation will occur within critical dune
areas or seaward of the dune protection line. The mitigation sequence
consists of the following steps: avoiding the impact altogether by
not taking a certain action or parts of an action; minimizing impacts
by limiting the degree or magnitude of the action and its implementation;
rectifying the impact by repairing, rehabilitating, or restoring the
affected environment; and compensating for the impact by replacing
resources lost or damaged. If, for any reason, an applicant cannot
demonstrate the ability to mitigate adverse effects on dunes and dune
vegetation, the local government is not authorized to issue the permit.
A local government shall require a permittee to use the mitigation
sequence, as provided in this subsection, as a permit condition if
that local government finds that an activity will result in any adverse
effects on dunes or dune vegetation seaward of a dune protection line
or on critical dune areas and add a permit condition that the applicant
will mitigate for the adverse effects in accordance with the mitigation
plan. When a mitigation plan is required, the applicant must provide
landowners immediately adjacent to the tract with notice of the hearing
on the permit at least 10 days prior to the hearing. Such notice to
adjacent landowners may be made by sending a copy of the hearing notice
by certified mail to the adjacent property owner's address listed
in the county central appraisal district records.
(1) Avoidance. Avoidance means avoiding the effect
on dunes and dune vegetation altogether by not taking a certain action
or parts of an action. Local governments shall require permittees
to avoid adverse effects on dunes and dune vegetation. Local governments
shall not issue a permit allowing any adverse effects on dunes and
dune vegetation located in critical dune areas or seaward of the dune
protection line unless the applicant proves there is no practicable
alternative to the proposed activity, proposed site or proposed methods
for conducting the activity, and the activity will not materially
weaken the dunes or dune vegetation. Local governments shall require
applicants to include information as to practicable alternatives in
the permit application. Local governments shall review the permit
application to determine whether the applicant has considered all
practicable alternatives and whether one of the practicable alternatives
would cause no adverse effects on dunes and dune vegetation than the
proposed activity. Local governments shall require applicants to employ
construction methods which will have no adverse effects, unless the
applicant can demonstrate that the use of such methods is not practicable.
Local governments shall require that permittees undertaking construction
in critical dune areas or seaward of a dune protection line use the
following avoidance techniques.
(A) Routing of nonexempt pipelines. Nonexempt pipelines
are any pipelines other than those subject to the exemption in §15.3(s)(2)(A)
of this title (relating to Administration). Local governments shall
not allow permittees to construct nonexempt pipelines within critical
dune areas or seaward of a dune protection line unless there is no
practicable alternative.
(B) Location of construction and beach access. Local
governments shall require permittees proposing construction seaward
of dune protection lines and within critical dune areas to locate
all such construction as far landward of dunes as practicable. Local
governments shall not restrict construction which provides access
to and from the public beach pursuant to this provision.
(C) Location of roads. Local governments shall require
permittees constructing roads parallel to beaches to locate the roads
as far landward of critical dune areas as practicable and shall not
allow permittees to locate such roads within 200 feet landward of
the line of vegetation.
(D) Artificial runoff channels. Local governments shall
not permit construction of new artificial channels, including stormwater
runoff channels, unless there is no practicable alternative.
(2) Minimization. Minimization means minimizing effects
on dunes and dune vegetation by limiting the degree or magnitude of
the action and its implementation. Local governments shall require
that applicants minimize adverse impacts to dunes and dune vegetation
by limiting the degree or magnitude of the action and its implementation.
If an applicant for a dune protection permit demonstrates to the local
government that adverse effects on dunes or dune vegetation cannot
be avoided and the activity will not materially weaken dunes and dune
vegetation, the local government may issue a permit allowing the proposed
alteration, provided that the permit contains a condition requiring
the permittees to minimize adverse effects on dunes or dune vegetation
to the greatest extent practicable.
(A) Routing of nonexempt pipelines. Nonexempt pipelines
are any pipelines other than those subject to the exemption in §15.3(s)(2)(A)
of this title (relating to Administration). If a permittee demonstrates
that there is no practicable alternative to crossing critical dune
areas, the local government may allow a permittee to construct a pipeline
across previously disturbed areas, such as blowout areas. Where use
of previously disturbed areas is not practicable, the local Cont'd... |
