| (a) Penalties.
(1) Civil Penalties.
(A) In addition to any penalties assessed by a local
government, any person who violates either the Dune Protection Act,
the Open Beaches Act, this subchapter, a removal order issued pursuant
to subsection (b) of this section, a restoration order issued pursuant
to subsection (c) of this section, or a permit or certificate condition
is liable for a civil penalty of not less than $50 nor more than $2000
per violation per day as provided in the Dune Protection Act, §63.181(b)
and the Open Beaches Act, §61.018(c). Each day the violation
occurs or continues constitutes a separate violation. Violations of
the Dune Protection Act, the Open Beaches Act, and the rules adopted
pursuant to those statutes are separate violations, and the General
Land Office may assess separate penalties. The assessment of penalties
under one Act does not preclude another assessment of penalties under
the other Act for the same act or omission. Conversely, compliance
with one statute and the rules adopted thereunder does not preclude
the General Land Office from assessing penalties under the other statute
and the rules adopted pursuant to that statute.
(B) A local government may recover civil penalties
in a suit by a county attorney, district attorney, or criminal district
attorney as authorized in the Dune Protection Act, §63.181(a),
and the Open Beaches Act, §61.018(b).
(2) Administrative Penalties.
(A) Any person who violates the Dune Protection Act,
the Open Beaches Act, this subchapter, or a permit or certificate
condition is also liable to the General Land Office for an administrative
penalty of not less than $50 nor more than $2000 per violation per
day as provided in the Dune Protection Act, §63.1811, and the
Open Beaches Act, §61.0181. Provided, however, if a structure
that is the subject of an administrative penalty assessed pursuant
to the Open Beaches Act, §61.0181, has been used as a permanent,
temporary, or occasional residential dwelling by at least one person
during the year before the date on which the penalty is assessed,
the amount of the administrative penalty may not exceed $1000 per
day the violation occurs or continues.
(B) Administrative penalties assessed by the Commissioner
of the General Land Office (commissioner) as part of an order pursuant
to the Dune Protection Act or the Open Beaches Act are subject to
the notice, orders, and hearing requirements outlined in subsections
(b) - (d) of this section, respectively. In determining the amount
of the administrative penalty for violations of the Dune Protection
Act and the Open Beaches Act, the General Land Office will consider
the following:
(i) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard or damage caused thereby;
(ii) the degree of cooperation and quality of response;
(iii) the degree of culpability and history of previous
violations by the person subject to the penalty;
(iv) the amount of penalty necessary to deter future
violations; and
(v) any other matter justice requires.
(3) Local governments are included in the definition
of "person" in §15.2 of this title (relating to Definitions),
and as such, they are liable for penalties for any violations of this
subchapter, the Dune Protection Act, and the Open Beaches Act. A local
government will be liable for penalties for such violations, including,
but not limited to, failure to submit a dune protection and beach
access plan to the General Land Office; failure to maintain and enforce
its plan; and failure to implement the plan. These violations are
in addition to any other violations of this subchapter for which a
local government may be liable for penalties.
(4) The provisions of this section are cumulative of
all other civil and administrative penalties, remedies, and enforcement
and liability provisions.
(5) In determining whether the assessment of penalties
is appropriate, the General Land Office will consider the following
mitigating circumstances: acts of God, war, public riot, or strike;
unforeseeable, sudden, and natural occurrences of a violent nature;
and willful misconduct by a third party not related to the permittee
or person responsible for the violation by employment or contract.
(b) Administrative Penalties and Restoration for Damage,
Destruction, or Removal of Dunes or Dune Vegetation.
(1) Pursuant to the Dune Protection Act, §63.1813,
the commissioner may order restoration or contract for restoration
for damage, destruction, or removal of a sand dune or a portion of
a sand dune or the killing, destruction, or removal of any vegetation
growing on a sand dune seaward of the dune protection line or within
a critical dune area in violation of the Dune Protection Act, this
subchapter, or any rule, permit, or order issued under the Dune Protection
Act.
(2) A person is considered to be engaging in or to
have engaged in conduct that violates the Dune Protection Act or any
rule, permit, or order issued under this Act if the person is the
person who most recently owned, maintained, controlled, or possessed
the real property on which the conduct occurred.
(3) A person damages a dune or dune vegetation when
the conduct results in the destruction or removal of a dune or dune
vegetation or weakens a dune or dune vegetation by increasing the
potential for flood damage, washovers or blowouts; changing runoff
or drainage patterns that aggravate erosion on or off the site; or
may result in adverse effects to dune hydrology and dune complexes
or dune vegetation.
(4) After issuance of a notice of violation under Texas
Natural Resources Code, §63.1814, a person must request a hearing
to contest the commissioner's findings or initiate restoration by
filing an application for a dune protection permit with the local
government with jurisdiction in the area in which the violation occurred
within 60 days after service of the notice of violation. The permit
application must address any technical specifications and monitoring
requirements described in the commissioner's notice of violation.
(5) If the person fails to apply for a permit and complete
restoration as required by this section or make a timely written request
for a hearing, the commissioner may order restoration, assess restoration
costs, fees and expenses, impose an administrative penalty, or use
any combination of these remedies. The order may specify the technical
specifications for restoration and monitoring requirements.
(6) Notice, Orders, and Hearings.
(A) When the commissioner has determined that damage,
destruction, or removal of dunes or dune vegetation is a violation
of the Dune Protection Act, §63.091 or any rule, permit, or order
issued under the Dune Protection Act, the commissioner must give written
notice to the person that is taking or has taken actions that violate
the Dune Protection Act, 63.091 or any rule, permit, or order issued
under the Dune Protection Act. The notice must state:
(i) the specific conduct that violates the Dune Protection
Act, this subchapter, or any permit or order issued under the Dune
Protection Act;
(ii) that the person who has engaged in or has been
engaged in the conduct that violates the Dune Protection Act, this
subchapter, or any permit or order issued under the Dune Protection
Act must perform restoration for the damage caused by the violation
not later than the 60th day after the day the notice is served;
(iii) that failure to perform restoration for the damage
caused by the violation may result in a liability for a civil penalty
under the Dune Protection Act, §63.0181(b) in an amount specified,
restoration contracted or undertaken by the commissioner, and liability
for the costs of restoration, or any combination of those remedies;
and
(iv) that the person who is engaging in or has engaged
in conduct that violates the Dune Protection Act or any rule, permit,
or order under the Dune Protection Act may submit, not later than
the 60th day after the date on which the notice is served, a written
request for a hearing to contest the commissioner's findings.
(B) The notice required by this subsection must be
given in accordance with subsection (d) of this section.
(7) If the person who is engaged in or has been engaged
in conduct that violated the Dune Protection Act, §63.091 or
any rule, permit, or order issued under the Dune Protection Act does
not pay assessed administrative penalties, mitigation costs, other
assessed fees and expenses, or file an application for a dune protection
permit on or before the 60th day after the date of entry of a final
order assessing the penalties, costs, and expenses, the commissioner
may:
(A) contract for restoration;
(B) request that the attorney general institute civil
proceedings to collect the penalties, costs of restoration, and other
fees and expenses remaining unpaid; or
Cont'd... |
