1. (a) Purpose. This section is intended to provide procedures for the commissioner to implement by order the use by a local government of temporary standards for stabilization and repair of structures and dune restoration during a period of recovery following a severely damaging declared or natural disaster and to assist local governments in restoring beach access and dune protection.
2. (b) Applicability. This section applies only to a local government with a local dune protection and beach access plan within a coastal county that has been included in a disaster declaration made by the governor under §418.014, Texas Government Code or in which a natural disaster has occurred, as determined by the commissioner. The temporary standards authorized by this section shall be effective for a period of two years from the date of the issuance of disaster recovery order by the commissioner, unless a shorter period of recovery is specified in the order.

3. (c) Disaster recovery order. The commissioner may issue a disaster recovery order pursuant to this section to authorize temporary standards for stabilization and repair of structures, dune restoration, and other minimum measures needed to mitigate for adverse effect to public access and dune areas caused by a damaging declared or natural disaster. The disaster recovery order shall identify the nature of the disaster, the name of the disaster and time and location of landfall (if applicable), any coastal county or counties to which the order applies, the date of issuance, and the expiration date of the order. The order is effective upon issuance by the commissioner. Notice of the order issued under this section shall be:

   1. (1) posted on the General Land Office's (GLO) Internet website;
   2. (2) published by the GLO as a miscellaneous document in the Texas Register; and
   3. (3) sent to the governing body of a local government to which the order applies.
4. (d) Conflict. The provisions of this section supplement the Beach/Dune Rules (§§15.1 - 15.12 of this title). However, if there is a conflict between this section and the provisions of the Beach/Dune Rules, this section applies.

5. (e) Definitions. In addition to the definitions contained in §15.2 of this title (relating to Definitions), the following words and terms, as used in this section, shall have the following meanings:

   1. (1) Beach debris--Anything that is not native to the beach and beach/dune system, including but not limited to pilings, concrete, fibercrete, rebar, riprap, boulders, automobile parts, rubble mounds, damaged dune walkovers, garbage, septic systems, and other objects, that may pose a hazard to public health and safety and/or no longer serve the purpose for which they were originally intended.
   2. (2) Boundary of the public beach--The landward edge of the public beach, as described in §15.3(b) of this title (relating to Administration). For purposes of this section, the commissioner may provide local governments with a temporary standard that includes a demarcation of the landward boundary of the public beach based on a line of constant elevation to use when issuing beachfront construction certificates and dune protection permits in locations where the natural line of vegetation has been severely damaged by the disaster that precipitated the recovery order. If the commissioner provides such a temporary standard, the standard shall be publicized on the GLO's website and local governments shall be given adequate notice of the temporary standard and the duration of its effectiveness.
   3. (3) Coastal county--Any Texas county with a Gulf-facing beach within its boundaries.
   4. (4) Code--The Texas Natural Resources Code.
   5. (5) Declared disaster--An event declared to be a disaster by the governor under §418.014, Texas Government Code.
   6. (6) Fibercrete--Unreinforced concrete, consisting of a combination of pulped paper, or other cellulose-based raw material, and binders such as lime, cement, and/or clay in 4 feet by 4 feet sections, which shall be a maximum of four inches thick with sections separated by expansion joints.
   7. (7) Habitable--The condition of the premises that permits the inhabitants to live free of serious hazards to health and safety.
   8. (8) House--A single or multi-family structure that serves as permanent, temporary or occasional living quarters for one or more persons or families.
   9. (9) Natural disaster--An event or force of nature that has catastrophic consequences, including, but not limited to, tropical storms, hurricanes, extreme high tides, tsunamis, earthquakes, tornadoes, and floods.
   10. (10) Recovery dune restoration--Those response measures that must be undertaken during a recovery period to construct a dune, repair a damaged dune, or stabilize an existing dune in order to minimize further threat or damage to coastal residents and littoral property. A local government shall require persons restoring dunes to use dune vegetation that will achieve the same protective capability as natural dunes in the area.
   11. (11) Recovery period--A period of time commencing with the issuance of a disaster recovery order under this section and ending with the expiration of the order, during which temporary standards for stabilization and repair of structures and dune restoration are in effect to assist a local government in restoring beach access and dune protection.
   12. (12) Recovery repair--Those actions that must be undertaken to render a structure habitable or to prevent further damage during the recovery period. The term "recovery repair" does not include reconnecting a house to utilities such as sewer, water, and electricity. Reconnection to such utilities may only be made in accordance with other applicable law or local ordinances.
   13. (13) Recovery stabilization--Those actions that must be undertaken to stabilize a residential structure that is subject to collapse or substantial further damage as a result of erosion or undermining caused by waves or currents of water exceeding normally anticipated cyclical levels during a period of recovery from a disaster.
   14. (14) Restoration Area--With respect to a dune restoration project on the public beach, an area extending no more than 30 feet seaward of the post-storm landward boundary of the public beach.
   15. (15) Shoreline protection project repairs--Those response measures that must be undertaken during a period of recovery from a disaster to restore an existing shoreline protection project to a condition that affords protection from subsequent storms or tidal events or prevents accelerated damage to littoral property.

6. (f) Recovery repair and recovery stabilization of structures on the public beach.

   1. (1) A local government may issue a certificate or permit in accordance with this section for recovery repair and recovery stabilization of a structure that encroaches or may encroach on the public beach to the extent necessary to prevent an immediate threat to public health, safety, and welfare.
   2. (2) A local government may authorize construction of an enclosed space with breakaway or louvered walls at ground level that is consistent with the local dune protection and beach access plan and National Flood Insurance Program, if the foundation of the structure is intact.
   3. (3) A local government may grant authorization in accordance with this section for recovery repair of a residential structure that encroaches or may encroach on the public beach, but only if the structure is an eligible house under §15.11 of this title (relating to Repairs to Certain Houses Located Seaward of the Boundary of the Public Beach) and is not subject to a pending enforcement action under this subchapter, the Open Beaches Act (Texas Natural Resources Code, Chapter 61), or the Dune Protection Act (Texas Natural Resources Code, Chapter 63). An enforcement action includes the filing of a suit in district court or the referral of a matter for enforcement to the attorney general or other public prosecutor or the issuance of a citation by a local government for a violation of its dune protection and beach access plan.
   4. (4) A local government may authorize the placement of beach-quality sand underneath the footprint of an eligible house and in the area up to a distance of not more than five feet from the structure's footprint where necessary to prevent further erosion due to wind or water. The beach-quality sand must remain loose and cannot be placed in bags.
   5. (5) Clay or sandy clay may be placed to fill voids under the footprint of a residential structure seaward of the line of vegetation and beyond the footprint to the extent necessary to restore a natural angle of repose up to a distance of not more than five feet from the structure's footprint; provided, however, that clay or sandy clay used for this purpose must be covered with beach quality sand, where practicable, to a depth of at least 12 inches. Such actions are authorized in situations where protection of the land immediately seaward of a structure is required to prevent foreseeable undermining of habitable structures in the event of such erosion.
   6. (6) A local government may authorize the use of clay or sandy clay to fill voids in order to protect public infrastructure; provided, however, that clay or sandy clay sand used for this purpose must be covered with beach quality sand, where practicable, to a depth of at least 12 inches.
   7. (7) Beach-quality sand, clay, or sandy clay must not be placed seaward of mean high tide without the consent of the commissioner.

7. (g) Authorized recovery dune restoration.

   1. (1) A local government may issue a certificate or permit for persons to construct clay core dunes and dunes created solely with beach quality sand landward of the public beach and seaward of the boundary of the public beach in the restoration area. A local government shall ensure that the restoration area shall follow the natural meander or migration of the post-storm boundary of the public beach. A local government may issue permits and certification to allow the restoration of dunes on the public beach only under the following conditions:

      1. (A) Restored dunes may be located farther seaward than the restoration area only to the limited extent necessary to minimize further damage to coastal residents and littoral property, provided such dunes shall not substantially restrict or interfere with the public use of the beach at normal high tide.
      2. (B) A local government shall not allow any person to restore dunes, even within the restoration area, if such dunes would effectively prohibit access to or use of the public beach at normal high tide.
   2. (2) Under no circumstances may sand or other materials be placed below mean high tide without the consent of the commissioner.

8. (h) Authorized methods and materials for recovery dune restoration. A local government may allow the following methods or materials for recovery dune restoration:

   1. (1) Dune restoration methods or materials allowed in §15.7(e)(6) of this title (relating to Local Government Management of the Public Beach);
   2. (2) Clay core dunes; provided, that clay or sandy clay used for this purpose must be covered with beach-quality sand, to a depth of at least 24 inches, and such sand cover must be maintained; provided, if clay is exposed, it must be recovered with sand to maintain the minimum 24-inch cover; and

   3. (3) Recovery dunes constructed under this section must not:

      1. (A) result in increased flooding to the site or adjacent property;
      2. (B) aggravate erosion;
      3. (C) result in adverse effects to dune hydrology;
      4. (D) increase the vulnerability to washouts or blowouts; or
      5. (E) interfere with the public's access to the beach at normal high tide.
9. (i) Review of dune protection line. A local government having the authority to set the dune protection line shall review the dune protection line within one year from the date of the disaster recovery order issued under this section rather than 90 days required under §15.3(k) of this title. All other requirements of §15.3(k) of this title shall apply.

10. (j) Authorized beach access and dune protection measures.

    1. (1) If a local beach access and dune protection plan includes a variance that permits the use of fibercrete within 200 feet of the line of vegetation in an eroding area, under this section the landward toe of a restored dune may be used for determining the area in which the use of fibercrete is allowed as provided in the variance unless natural dunes form further landward. In eroding areas where there is no dune or the dune has been obliterated by the disaster that precipitated the order, the provisions of §15.6(f)(3) of this title (relating to Concurrent Dune Protection and Beachfront Construction Standards) apply until a restored dune has been established in the area as determined by a local government.
    2. (2) If a local beach access and dune protection plan includes a variance that permits the use of fibercrete within 200 feet of the line of vegetation in an eroding area, the local government may allow construction underneath, outside, or around the house that includes fibercrete or other materials necessary to restore reasonable access to a house for disabled persons; provided that such access existed prior to the disaster that is the subject of an order under this section. This provision also applies to a house that has become located on the beach or where there is no dune.
    3. (3) A local government may provide temporary access to beaches from off-beach parking areas by directing the public to the nearest existing pathways to minimize the effects on dunes and dune vegetation until dunes and walkovers are re-established or rebuilt. Temporary pathways shall be conspicuously marked as beach access paths.
    4. (4) A local government may, without a plan amendment, temporarily close beach access points damaged beyond repair or temporarily blocked by emergency shore protection projects to prevent damage to infrastructure. In order to comply with this rule a local government must notify the commissioner of the temporary closure of such damaged beach access point within 10 calendar days and specify the duration of the closure. The local government must ensure that the period of limited beach access in that area does not exceed the duration of the disaster recovery order and must submit to the commissioner a timeline for amending the local plan or a remedy to restore access no later than six months prior to the expiration of the disaster recovery order issued under this section.

11. (k) Shoreline protection project repairs. Notwithstanding the general prohibition on maintaining or repairing erosion response structures in §15.6(d) of this title, a local government may authorize repairs to an existing shoreline protection project, subject to the following limitations:

    1. (1) Repairs to existing shoreline protection projects may be permitted to minimize further damage to coastal residences and littoral property, provided the existing shoreline protection project does not substantially restrict or interfere with the public use and access of the beach at normal high tide;
    2. (2) A local government shall not authorize any person to repair a shoreline protection project that is located below mean high water; and
    3. (3) The existing shoreline protection project must conform to the policies of the Coastal Coordination Council promulgated in §501.26(b) of this title (relating to Policies for Construction in the Beach/Dune System).

12. (l) Prohibition on certain materials. A local government shall not allow any person to undertake dune restoration projects or temporary shoreline protection projects using any of the following methods or materials:

    1. (1) Materials such as bulkheads, riprap, concrete (including sprayed concrete), or asphalt rubble, building construction materials, and any non-biodegradable items;
    2. (2) Sediments containing the hazardous substances listed in Appendix A to §302.4 in Volume 40 of the Code of Federal Regulations, Part 302 in concentrations which are harmful to people, flora, and fauna as determined by applicable, relevant, and appropriate requirements for toxicity standards established by the local, state, and federal governments; or
    3. (3) Sand obtained by scraping or grading dunes, or from beaches in eroding areas.
13. (m) Repair of sewage or septic systems. If the Texas Commission on Environmental Quality or its designated local authority, the Texas Department of State Health Services, or a local health department has made a determination that a sewage or septic system located on or adjacent to the public beach poses a threat to the health of the occupants of the property or public health, safety or welfare, and requires removal of the sewage or septic system, the sewage or septic system shall be located in accordance with §15.5(b)(1) of this title (relating to Beachfront Construction Standards) and §15.6(b) and (e)(1) of this title.
14. (n) Authorized beach maintenance practices. If a material change in conditions occurs, such as significant beach erosion caused by a declared or natural disaster, the commissioner may require a local government affected by an order issued under this section to suspend the authority of a permittee to scrape a beach under a previously issued beach maintenance permit. The local government may require a permittee to obtain a new permit incorporating beach maintenance practices consistent with the changed conditions. The commissioner shall be given an opportunity to comment on any such new permit application.
15. (o) Removal of beach debris. A local government or other authorized governmental entity with the duty to clean, maintain and clear debris from the public beach as provided by law shall coordinate with property owners to remove debris, including, but not limited to, pilings, concrete, fibercrete, pavers, and garbage from the public beach as soon as possible to minimize the threat of damage to public health, safety, welfare, and property.

16. (p) GLO review. A local government shall submit the certificate or permit applications for recovery repair, recovery repair, recovery dune restoration, or any other activity authorized under this section to the commissioner for review. If the commissioner does not object to or otherwise comment on the application within ten working days of receipt of an application, the local government may act on the application. 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 for repairs. Local governments may require more information, but the following information shall be submitted to the GLO:

    1. (1) the name, address, phone number, and, if applicable, fax number or electronic mail address of the applicant, and the name of the property owner, if different from the applicant;
    2. (2) a complete legal description of the tract and a statement of its size in acres or square feet including the location of the property lines and a notation of the legal description of adjoining tracts;
    3. (3) the floor plan, footprint or elevation view of the house identifying the proposed repairs;
    4. (4) photographs of the site which clearly show the current conditions of the site; and

    5. (5) an accurate map, site plan, plat or drawing of the site identifying:

       1. (A) the site by its legal description, including, where applicable, the subdivision, block, and lot;
       2. (B) the location of the property lines and a notation of the legal description of adjoining tracts, and the location of any roadways, driveways and landscaping that currently exist on the tract;
       3. (C) the location of any seawalls or any other erosion response structures on the tract and on the properties immediately adjacent to the tract;
       4. (D) the location of the house and the distance between the house and mean high tide, and the natural line of vegetation;
       5. (E) 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; and
       6. (F) if the proposed action includes a recovery dune restoration project, grading and layout plan identifying all elevations (in reference to the National Oceanic and Atmospheric Administration datum), existing contours of the project area (including the location of dunes and swales), and proposed contours for final grade.
    6. (6) the source of any sand and vegetation used for a recovery dune restoration project; and
    7. (7) any other information requested by the local government or the GLO that is necessary to determine whether the application is consistent with this section.
17. (q) Monitoring. A local government is responsible for monitoring a recovery stabilization, recovery repair, recovery dune restoration project, or shoreline protection project repair under this section. A local government may conduct a monitoring program to study the effects of such projects on the public's access to and use of the public beach. Expenses related to the monitoring program are considered beach-related services for the purpose of this subchapter.
18. (r) Effect on actions for removal. This section does not create a property right of any kind in the littoral property owner. Houses eligible for repairs to maintain habitability under this section may also be encroachments on and interferences with the public beach easement. Except as provided in an unexpired temporary order issued by the commissioner under §61.0185 of the Texas Natural Resources Code, the commissioner, the attorney general, a county attorney, district attorney, or criminal district attorney may file suit under Texas Natural Resources Code §61.018(a) to obtain a temporary or permanent injunction, either prohibitory or mandatory, to remove a house from the public beach without regard to whether the house is eligible for repairs under this section.

Source Note:The provisions of this §15.13 adopted to be effective April 9, 2009, 34 TexReg 2239.