| (G) avoiding the destruction of remnant natural sites
within areas already affected by development.
(7) Adverse effects on human use potential from dredging
and dredged material disposal or placement can be minimized by:
(A) selecting sites and following procedures to prevent
or minimize any potential damage to the aesthetically pleasing features
of the site, particularly with respect to water quality;
(B) selecting sites which are not valuable as natural
aquatic areas;
(C) timing dredging and dredged material disposal or
placement activities to avoid the seasons or periods when human recreational
activity associated with the site is most important; and
(D) selecting sites that will not increase incompatible
human activity or require frequent dredge or fill maintenance activity
in remote fish and wildlife areas.
(8) Adverse effects from new channels and basins can
be minimized by locating them at sites:
(A) that ensure adequate flushing and avoid stagnant
pockets; or
(B) that will create the fewest practicable adverse
effects on CNRAs from additional infrastructure such as roads, bridges,
causeways, piers, docks, wharves, transmission line crossings, and
ancillary channels reasonably likely to be constructed as a result
of the project; or
(C) with the least practicable risk that increased
vessel traffic could result in navigation hazards, spills, or other
forms of contamination which could adversely affect CNRAs;
(D) provided that, for any dredging of new channels
or basins subject to the requirements of §26.15 of this title
(relating to Policy for Major Actions), data and information on minimization
of secondary adverse effects need not be produced or evaluated to
comply with this paragraph if such data and information is produced
and evaluated in compliance with §26.15(b)(1) of this title.
(c) Disposal or placement of dredged material in existing
contained dredge disposal sites identified and actively used as described
in an environmental assessment or environmental impact statement issued
prior to the effective date of this chapter shall be presumed to comply
with the requirements of subsection (a) of this section unless modified
in design, size, use, or function.
(d) Dredged material from dredging projects in commercially
navigable waterways is a potentially reusable resource and must be
used beneficially in accordance with this policy.
(1) If the costs of the beneficial use of dredged material
are reasonably comparable to the costs of disposal in a non-beneficial
manner, the material shall be used beneficially.
(2) If the costs of the beneficial use of dredged material
are significantly greater than the costs of disposal in a non-beneficial
manner, the material shall be used beneficially unless it is demonstrated
that the costs of using the material beneficially are not reasonably
proportionate to the costs of the project and benefits that will result.
Factors that shall be considered in determining whether the costs
of the beneficial use are not reasonably proportionate to the benefits
include, but are not limited to:
(A) environmental benefits, recreational benefits,
flood or storm protection benefits, erosion prevention benefits, and
economic development benefits;
(B) the proximity of the beneficial use site to the
dredge site; and
(C) the quantity and quality of the dredged material
and its suitability for beneficial use.
(3) Examples of the beneficial use of dredged material
include, but are not limited to:
(A) projects designed to reduce or minimize erosion
or provide shoreline protection;
(B) projects designed to create or enhance public beaches
or recreational areas;
(C) projects designed to benefit the sediment budget
or littoral system;
(D) projects designed to improve or maintain terrestrial
or aquatic wildlife habitat;
(E) projects designed to create new terrestrial or
aquatic wildlife habitat, including the construction of marshlands,
coastal wetlands, or other critical areas;
(F) projects designed and demonstrated to benefit benthic
communities or aquatic vegetation;
(G) projects designed to create wildlife management
areas, parks, airports, or other public facilities;
(H) projects designed to cap landfills or other water
disposal areas;
(I) projects designed to fill private property or upgrade
agricultural land, if cost-effective public beneficial uses are not
available; and
(J) projects designed to remediate past adverse impacts
on the coastal zone.
(e) If dredged material cannot be used beneficially
as provided in subsection (d)(2) of this section, to avoid and otherwise
minimize adverse effects as required in subsection (a) of this section,
preference will be given to the greatest extent practicable to disposal
in:
(1) contained upland sites;
(2) other contained sites; and
(3) open water areas of relatively low productivity
or low biological value.
(f) For new sites, dredged materials shall not be disposed
of or placed directly on the boundaries of submerged lands or at such
location so as to slump or migrate across the boundaries of submerged
lands in the absence of an agreement between the affected public owner
and the adjoining private owner or owners that defines the location
of the boundary or boundaries affected by the deposition of the dredged
material.
(g) Emergency dredging shall be allowed without a prior
consistency determination as required in the applicable consistency
rule when:
(1) there is an unacceptable hazard to life or navigation;
(2) there is an immediate threat of significant loss
of property; or
(3) an immediate and unforeseen significant economic
hardship is likely if corrective action is not taken within a time
period less than the normal time needed under standard procedures.
The CMP coordinator shall be notified at least 24 hours prior to commencement
of any emergency dredging operation by the agency or entity responding
to the emergency. The notice shall include a statement demonstrating
the need for emergency action. Prior to initiation of the dredging
operations the project sponsor or permit-issuing agency shall, if
possible, make all reasonable efforts to meet with the CMP coordinator
to ensure consideration of and consistency with applicable policies
in this subchapter. Compliance with all applicable policies in this
subchapter shall be required at the earliest possible date. The permit-issuing
agency and the applicant shall submit a consistency determination
within 60 days after the emergency operation is complete.
(h) Mining of sand, shell, marl, gravel, and mudshell
on submerged lands shall be prohibited unless there is an affirmative
showing of no significant impact on erosion within the coastal zone
and no significant adverse effect on coastal water quality or terrestrial
and aquatic wildlife habitat within any CNRA.
(i) The GLO and the SLB shall comply with the policies
in this section when approving oil, gas, and other mineral lease plans
of operation and granting surface leases, easements, and permits and
adopting rules under the Texas Natural Resources Code, Chapters 32,
33, and 51 - 53, and Texas Water Code, Chapter 61, for dredging and
dredged material disposal and placement. TxDOT shall comply with the
policies in this subchapter when adopting rules and taking actions
as local sponsor of the Gulf Intracoastal Waterway under Texas Transportation
Code, Chapter 51. The TCEQ and the RRC shall comply with the policies
in this section when issuing certifications and adopting rules under
Texas Water Code, Chapter 26, and the Texas Natural Resources Code,
Chapter 91, governing certification of compliance with surface water
quality standards for federal actions and permits authorizing dredging
or the discharge or placement of dredged material. The TPWD shall
comply with the policies in this section when adopting rules at Chapter
57 of this title (relating to Fisheries) governing dredging and dredged
material disposal and placement. The TPWD shall comply with the policies
in subsection (h) of this section when adopting rules and issuing
permits under Texas Parks and Wildlife Code, Chapter 86, governing
the mining of sand, shell, marl, gravel, and mudshell.
(j) To the extent practicable, agencies and subdivisions
should maximize the use of collaborative partnerships between federal
and non-federal interests to plan, fund, and implement projects for
the beneficial use of dredged material, and should further endeavor
to coordinate such projects with the U.S. Army Corps of Engineers.
(k) Notwithstanding the requirements of this policy,
all projects for the beneficial use of dredged material proposed under
the Coastal Erosion Planning and Response Act (CEPRA), Texas Natural
Resources Code, Chapter 33, Subchapter H, shall comply with Chapter
15 of this title and all other statutory and regulatory requirements
applicable to CEPRA projects.
|
| Source Note: The provisions of this §26.25 adopted to be effective October 6, 2004, 29 TexReg 9407; amended to be effective October 29, 2006, 31 TexReg 8840; 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; amended to be effective July 10, 2023, 48 TexReg 3671 |
