| 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:
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