| 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 government
shall require the permittees to avoid adverse effects on or disturbance
of dune surfaces and shall require the mitigation sequence if the
adverse effects are unavoidable.
(B) Location of construction and beach access.
(i) Local governments shall require permittees to minimize
construction and pedestrian traffic on or across dune areas to the
greatest extent practicable, taking into account trends of dune movement
and beach erosion in that area.
(ii) Local governments may allow permittees to route
private and public pedestrian beach access to and from the public
beach through washover areas or over elevated walkways in their approved
dune protection and beach access plans. All pedestrian access routes
and walkways shall be clearly and conspicuously marked with permanent
signs by the local government if the beach access is public.
(iii) When approving proposed plats for subdivision,
multiple dwelling, or commercial facilities, or other new developments,
local governments should use their authority to limit private access
points to the public beach to the minimum amount needed to service
the development.
(iv) Local governments shall minimize proliferation
of excessive private access by permitting only the minimum necessary
private beach access points to the public beach from any proposed
subdivision, multiple dwelling, or commercial facility. In some cases,
the minimum beach access points may be only one access point. In determining
the appropriate grouping of access points, the local government shall
consider the size and scope of the development.
(v) Local governments and the owners and operators
of commercial facilities, subdivisions, and multiple dwellings shall
post signs in areas where pedestrian traffic is high, explaining the
functions of dunes and the importance of vegetation in preserving
dunes.
(vi) Local governments shall not allow a permittee
to construct or maintain a structure on previously mitigated or compensated
dunes that are seaward of a dune protection line, where practicable,
except for specifically permitted dune walkovers or similar access
ways.
(C) Location of roads.
(i) Wherever practicable, local governments may require
permittees to locate beach access roads in washover areas, blowout
areas, or other areas where dune vegetation has already been disturbed;
local governments shall require permittees to build such roads along
the natural land contours, to minimize the width of such roads, and
where possible, to improve existing access roads with elevated berms
near the beach that prevent channelization of floodwaters. Where practicable,
local governments shall require permittees to locate roads at an oblique
angle to the prevailing wind direction.
(ii) Wherever practicable, local governments shall
provide vehicular access to and from beaches by using existing roads
or from roads constructed in accordance with paragraph (1)(C) of this
subsection and clause (i) of this subparagraph. Local governments
shall not apply this provision in a manner which restricts public
beach access.
(iii) Local governments shall include in any permit
authorizing the construction of roads a permit condition prohibiting
persons from using or parking any motor vehicle on, through, or across
dunes in critical dune areas except for the use of vehicles on designated
access ways.
(D) Artificial runoff channels. Local governments shall
only authorize construction of artificial runoff channels (that direct
stormwater flow) if the channels are located in a manner which avoids
erosion and unnecessary construction of additional channels. Local
governments shall require that permittees make maximum use of natural
or existing drainage patterns, whenever practicable, when locating
new channels and stormwater retention basins. However, if new channels
are necessary, local governments shall require that permittees direct
all runoff inland and not to the Gulf of Mexico through critical dune
areas, where practicable.
Cont'd... |
