| (a) Integration of dune protection and beach access
programs. The Dune Protection Act and the Open Beaches Act require
certain local governments to adopt and implement programs for the
preservation of dunes and the preservation and enhancement of use
of and access to and from public beaches. These Acts provide for regulation
of generally the same activities and the same geographic areas, and
their requirements are scientifically and legally related. Local governments
required to adopt dune protection and beach access programs shall
integrate them into a single plan consisting of procedural and substantive
requirements for management of the beach/dune system within their
jurisdiction. The authority to integrate such plans is provided pursuant
to the Dune Protection Act, the Open Beaches Act, and this subchapter.
The local government plans shall be consistent with the requirements
of the Open Beaches Act, the Dune Protection Act, and this subchapter,
and each shall, whenever possible, incorporate the local government's
ordinary land use planning procedures.
(b) Boundary of the public beach. The public beach
is defined in the Open Beaches Act, §61.013(c), and §15.2
of this title (relating to Definitions). The line of vegetation is
defined in the Open Beaches Act, §61.001(5), and §15.2 of
this title. The line of vegetation is typically used to determine
the landward extent of the public beach. However, there are portions
of the Texas coast where there is no marked vegetation line or the
line is discontinuous or modified. In those portions of the coast,
the line of vegetation shall be determined consistent with §15.10(b)
of this title (relating to General Provisions) and the Open Beaches
Act, §61.016 and §61.017.
(1) If there is no clearly marked line of vegetation,
the "line of vegetation" delineating the public beach shall be the
line of constant elevation connecting two clearly marked lines of
vegetation of equal elevation on each side, but if there are no clearly
marked lines of vegetation on each side, the "line of vegetation"
shall not extend inland further than 200 feet from the seaward line
of mean low tide.
(2) If there is no clearly marked line of vegetation,
the "line of vegetation" delineating the public beach shall be the
line of average elevation connecting two clearly marked lines of vegetation
of unequal elevation on each side, but if there are no clearly marked
lines of vegetation on each side, the "line of vegetation" shall not
extend inland further than 200 feet from the seaward line of mean
low tide.
(3) If the vegetation line has been obliterated or
is created artificially and there is a vegetation line consistently
following a line more than 200 feet from the seaward line of mean
low tide, the 200-foot line shall constitute the landward boundary
of the area subject to the public easement.
(4) If the commissioner has issued an order under §15.12
of this title (relating to Temporary Orders Issued by the Land Commissioner)
or §15.13 of this title (relating to Disaster Recovery Orders)
the line of vegetation shall be delineated in accordance with the
order(s).
(5) When a Beachfront Construction Certificate/Dune
Protection Permit application is submitted to the General Land Office
for review and comment, the line of vegetation depicted on any map,
aerial photograph, or other documentation shall be subject to verification
by the General Land Office.
(6) The determination of the location of the line of
vegetation by the commissioner of the General Land Office as provided
by the Open Beaches Act, §§61.016 - 61.017 and 61.0171,
constitutes prima facie evidence of the landward boundary of the area
subject to the public easement until a court adjudication establishes
the line in another place.
(c) Beachfront construction certification areas. The
General Land Office has the responsibility of protecting the public's
right to use and have access to and from the public beach and of providing
standards to the local governments certifying construction on land
adjacent to the Gulf of Mexico consistent with such public rights.
The Open Beaches Act, §61.011(d)(6), limits the geographic scope
of the beachfront construction certification area to the 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 the area up
to 1,000 feet of mean high tide, whichever distance is greater. For
this area, local governments shall prepare a beach access and use
program, pursuant to the Open Beaches Act, §61.015, for inclusion
in their dune protection and beach access plans to control any adverse
effects of beachfront construction on public beach use and access.
Applications for beachfront construction certificates shall be reviewed
by local governments for consistency with their dune protection and
beach access plans.
(d) Critical dune areas and dune protection lines.
The commissioner of the General Land Office, as trustee of the public
lands of Texas, has the responsibility to identify and protect Texas'
critical dune areas that are essential to the protection of coastal
public land, public roads, public beaches, and other public resources.
Local governments have the responsibility to establish dune protection
lines for the purpose of preserving sand dunes within their jurisdiction.
The Dune Protection Act, §63.121 and §63.012, respectively,
limits the geographic scope of critical dune areas and the location
of the dune protection line to that portion of the beach within 1,000
feet of mean high tide of the Gulf of Mexico.
(e) Identification of critical dune areas. Pursuant
to the authority provided in the Dune Protection Act, §63.121,
the General Land Office has identified critical dune areas as all
dunes and dune complexes located within 1,000 feet of mean high tide
of the Gulf of Mexico. This identification is based on the determination
that all of the various protective functions served by the dunes and
dune complexes located within that 1,000 feet are essential to the
protection of public beaches, submerged land, and state-owned land,
such as public roads and coastal public lands, from nuisance, erosion,
storm surge, and high wind and waves. Critical dune areas are related
to dune protection lines in that local governments are required to
establish such lines for the purpose of preserving dunes in a location
landward of all critical dune areas. Criteria for establishing dune
protection lines shall, at a minimum, include the criteria for establishing
critical dune areas in this subsection.
(f) Establishment of dune protection lines. Pursuant
to the authority provided in the Dune Protection Act, §63.011,
local governments shall establish and maintain dune protection lines
which preserve, at a minimum, the dunes within the critical dune areas
as defined in this subchapter. The establishment of the line should
include the protection of critical dune areas from erosion caused
by natural forces and development on adjacent land. Accordingly, the
Dune Protection Line should be established in a location that will
allow local governments to implement Texas Natural Resources Code, §33.607.
A local government must conduct a field inspection to determine the
approximate location of the line unless it proposes to establish or
relocate its line at a distance of 1,000 feet of mean high tide of
the Gulf of Mexico, as that 1,000 feet is the maximum extent of the
local government's jurisdiction for establishing dune protection lines.
(g) Deadline for establishment of dune protection lines.
Local governments shall establish dune protection lines as part of
the dune protection component of their local plans. The local plans
shall be submitted to the state no later than 180 days after the effective
date of this subchapter. Therefore, local governments shall establish
dune protection lines no later than 180 days after this subchapter
goes into effect.
(h) Information required regarding dune protection
lines. Local governments are required to submit the following information
to the General Land Office to allow state evaluation of the adequacy
of the dune protection line location: a map or drawing of the line;
a written description of the line; or a written description and a
map or drawing. This information shall be included in the local government's
dune protection and beach access plan and must clearly designate for
the public and the state the location of the line and the location
of dunes seaward of the line. All maps, drawings, or descriptions
shall incorporate sufficient elements of the Texas State Plane Coordinate
System to enable such description to be located on the ground and
shall be tied to and/or include the Texas State Plane Coordinates
for two or more monumented points along any described boundary. Each
local government shall file a map or drawing or description of its
dune protection line with the clerk of the county or municipality
establishing the line.
(i) State assistance in the establishment of local
government dune protection lines. The General Land Office may assist
and advise local governments in establishing or modifying a dune protection
line. Pursuant to the Dune Protection Act, §63.013, local governments
shall notify the General Land Office of the establishment of dune
protection lines and any subsequent change in a line. Upon such notification,
the General Land Office shall review the location of the line by examining
the map or description of the line submitted to the state and by conducting
field inspections, as necessary. The General Land Office will review
the location of the line to determine whether the line meets the geographic
standard of being located landward of all critical dune areas. If
the General Land Office is satisfied that the line meets that geographic
standard, the General Land Office will notify the local government
of this finding in writing. If the line does not meet that geographic
standard, the General Land Office will assist and advise the local
government in adjusting the line.
(j) State review of dune protection line location.
Each local government shall submit the information regarding the location
of the dune protection line, as required in subsection (h) of this
section, to the General Land Office as part of its dune protection
and beach access plan. In determining whether to approve the local
plan, the General Land Office will review the various components of
the plan, including the adequacy of the location of a local government's
dune protection line (with respect to the protection of critical dune
areas), based on the geographic standards provided in subsection (i)
of this section.
(k) Local government review of dune protection line
location. Each local government shall review its dune protection line
every five years to determine whether the line is adequately located
to achieve the purpose of preserving critical dune areas. In addition
to the five-year review, each local government shall review the adequacy
of the location of the line within 90 days after a tropical storm
or hurricane affects the portion of the coast in its jurisdiction.
(l) Provisions for public hearings on dune protection
lines. Local governments shall provide notice of a public hearing
to consider establishing or modifying a dune protection line by publishing
such notice at least three times in the newspaper with the largest
circulation in the county. The notice shall be published not less
than one week nor more than three weeks before the date of the hearing.
Notice shall be given to the General Land Office not less than one
week nor more than three weeks before the hearing. In the notice to
the General Land Office, local governments shall also include the
information described in subsection (h) of this section.
(m) Local government authority. Local governments shall
include in the plans submitted to the General Land Office citations
of all statutes, policies, and ordinances which demonstrate the authority
of the local government to implement and enforce the plan in a manner
consistent with the requirements of this subchapter. Local government
plans shall also demonstrate the coordination, on the local level,
of the dune protection, beach access, erosion response, and flood
protection programs (if participating in the National Flood Insurance
Program under the National Flood Insurance Act). Each local government
shall integrate these programs into one plan for the management of
the beach/dune system within its jurisdiction.
(n) Content of local government dune protection and
beach access plans. Local government plans shall contain procedural
mechanisms and substantive requirements necessary for compliance with
this subchapter, the Dune Protection Act, the Open Beaches Act and
Texas Natural Resources Code §33.607. Local governments shall
attach copies of this subchapter, the Dune Protection Act, and the
Open Beaches Act to their plans, and their plans shall state that
these state laws are incorporated into the plans. A local government
shall also state in its plan that any person in violation of the incorporated
state laws is in violation of its local plan.
(o) Consultation on and submission of local government
plans to the General Land Office. Local governments shall submit dune
protection plans, beach access plans, erosion response plans under
Texas Natural Resources Code Chapter 33, and 31 TAC §15.17, and
any amendments to those plans to the General Land Office for review,
comment, and certification as to compliance with this subchapter,
the Dune Protection Act, and the Open Beaches Act.
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