| (a) Construction in critical dune areas or areas adjacent
to or on Gulf beaches shall comply with the following policies:
(1) Construction within a critical dune area that results
in the material weakening of dunes and material damage to dune vegetation
shall be prohibited.
(2) Construction within critical dune areas that does
not materially weaken dunes or materially damage dune vegetation shall
be sited, designed, constructed, maintained, and operated so that
adverse "effects" (as defined in §15.2 of this title (relating
to Coastal Area Planning) on the sediment budget and critical dune
areas are avoided to the greatest extent practicable. For purposes
of this section, practicability shall be determined by considering
the effectiveness, scientific feasibility, and commercial availability
of the technology or technique. Cost of the technology or technique
shall also be considered. Adverse effects (as defined in Chapter 15
of this title (relating to Coastal Area Planning) that cannot be avoided
shall be:
(A) minimized by limiting the degree or magnitude of
the activity and its implementation;
(B) rectified by repairing, rehabilitating, or restoring
the adversely affected dunes and dune vegetation; and
(C) compensated for on-site or off-site by replacing
the resources lost or damaged seaward of the dune protection line.
(3) Mitigation and compensation for adverse effects
that cannot be avoided or minimized shall provide at least a one-to-one
replacement of the dune volume and vegetative cover, and preference
shall be given to stabilization of blowouts and breaches and on-site
compensation.
(4) The ability of the public, individually and collectively,
to exercise its rights of use of and access to and from public beaches
shall be preserved and enhanced.
(5) Non-structural erosion response methods such as
beach nourishment, sediment bypassing, nearshore sediment berms, and
planting of vegetation shall be preferred instead of structural erosion
response methods. Subdivisions shall not authorize the construction
of a new erosion response structure within the beach/dune system,
except as provided by subsection (b) of this section or a retaining
wall located more than 200 feet landward of the line of vegetation.
Subdivisions shall not authorize the enlargement, improvement, repair
or maintenance of existing erosion response structures on the public
beach. Subdivisions shall not authorize the repair or maintenance
of existing erosion response structures within 200 feet landward of
the line of vegetation except as provided in §15.6(d) of this
title (relating to Concurrent Dune Protection and Beachfront Construction
Standards).
(b) Construction of structural shore protection projects,
including geotextile shore protection projects, in critical dune areas
or areas adjacent to or on Gulf Beaches shall comply with the following
policies:
(1) The size and the length of a shore protection project
shall be determined as part of a site-specific construction and maintenance
plan, taking into account both technical requirements and policy issues
as described under this subsection, and shall be limited to the minimum
size necessary to fulfill the project's goals and purposes.
(2) A shore protection project shall only be used to
protect community developments, public infrastructure, and for other
lawful public purposes and shall not be used solely to protect individual
structures or properties. A community development may include a neighborhood
or aggregation of residences or commercial structures.
(3) A shore protection project located parallel to
the shore shall be located landward of the boundary of state-owned
submerged land as determined by a coastal boundary survey conducted
in accordance with Texas Natural Resources Code §33.136, and
shall avoid and otherwise minimize adverse effects to dunes and dune
vegetation.
(4) To maximize the protection offered by a shore protection
project, to enhance the survivability of the project, and to minimize
adverse effects to natural resources, a shore protection project shall
be located according to the following preferred order:
(A) In an area where a foredune ridge is present, where
practicable, a shore protection project shall be located landward
of the foredune ridge;
(B) Where there is no foredune ridge, a project shall
be located landward of the line of vegetation, where practicable;
(C) Where it is not practicable to locate a shore protection
project landward of the line of vegetation, a project shall be located
at the line of vegetation; or
(D) Where there is no other practicable location, a
shore protection project shall be located at the most landward point
of the public beach provided that the project sponsor has provided
financial assurance that the pre-project beach width will be maintained
through beach nourishment.
(5) A shore protection project shall not adversely
affect sea turtle nesting areas or an endangered species.
(6) Shore protection projects shall not be constructed
on stable or accreting beaches.
(7) A shore protection project shall be designed to
avoid and otherwise minimize any adverse effects to adjacent beaches
or properties at either end of a project.
(8) To the extent allowed by law, a dune protection
permit is required to authorize the construction of a shore protection
project in the beach/dune system.
(9) A mitigation plan shall be submitted for any adverse
effects to critical dune areas as a result of the construction and
presence of a shore protection project.
(10) Public input shall be incorporated into a local
government's review and approval of a shore protection project. Methods
to obtain public input include public meetings, notices by mail to
affected property owners, publication of notices in local newspapers,
the Texas Register, and web sites.
(11) The success criteria for a shore protection project
shall be developed by a project sponsor with consideration for the
health and maintenance of the beach/dune system.
(12) The sponsor of a shore protection project shall
be responsible for the ongoing maintenance of the project and, if
necessary, beach nourishment and/or removal of the project.
(13) Sand from the beach/dune system shall not be used
to fill or cover a shore protection project. Where appropriate, a
shore protection project shall remain covered with sand and dune
vegetation with a preference for natural dune vegetation. The sand
and vegetation used to cover a shore protection project shall conform
to the standards for dune restoration projects as described in §15.4
(relating to Dune Protection Standards) and §15.7, (relating
to Local Government Management of the Public Beach) of this title.
(14) Long-term monitoring of a shore protection project
shall be required to determine the project's effect on the beach/dune
system and the project's effectiveness. Prior to the construction
of a shore protection project, a project sponsor shall collect scientifically
valid baseline data for monitoring the line of vegetation, the extent
of the dry beach, a beach profile, and any other characteristics necessary
for evaluating the project's effectiveness.
(15) Existing public access in the area of a shore
protection project shall be replicated if not enhanced. A local government
shall not impair or close an existing public access point or close
a public beach to pedestrian or vehicular traffic without prior approval
of the GLO as required under the Open Beaches Act, Texas Natural Resource
Code Annotated, Chapter 61, and the Beach/Dune rules, Chapter 15 of
this title.
(c) The GLO shall comply with the policies in this
section when certifying local government dune protection and beach
access plans and adopting rules under the Texas Natural Resources
Code, Chapters 61 and 63. Local governments required by the Texas
Natural Resources Code, Chapters 61 and 63, and Chapter 15 of this
title (relating to Coastal Area Planning) to adopt dune protection
and beach access plans shall comply with the applicable policies in
this section when issuing beachfront construction certificates and
dune protection permits.
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| Source Note: The provisions of this §26.26 adopted to be effective October 6, 2004, 29 TexReg 9407; amended to be effective May 11, 2005, 30 TexReg 2682; amended to be effective October 7, 2018, 43 TexReg 6449; transferred effective December 1, 2022, as published in the Texas Register October 28, 2022, 47 TexReg 7301 |
