1. (a) Local government certification of beachfront construction. This section provides the standards local governments shall follow when preparing that portion of the dune protection and beach access plan specifically related to issuing or conditioning beachfront construction certificates. In general, within its jurisdiction, a local government shall not allow diminution of the size of public beaches and shall preserve and enhance public access between public beaches and public roads lying landward. A local government certification shall consist of one of two affirmative findings: an affirmative finding by a local government that the proposed construction is consistent with the beach access portion of a local government's dune protection and beach access plan and does not encroach upon the public beach, nor does it interfere with, or otherwise restrict, the public's right to use and have access to and from the public beach; or an affirmative finding that the proposed construction is inconsistent with the beach access portion of a local government's dune protection and beach access plan. The beach access portion of the local government's dune protection and beach access plan shall provide that beachfront construction will not adversely affect or allow encroachments upon the public beach or interfere with or otherwise impair the public's right to use and have access to and from the public beach.

2. (b) Prohibition of certification. Local governments shall not issue a certificate authorizing beachfront construction if the local government determines that the construction:

   1. (1) reduces the size of the public beach in any manner;
   2. (2) closes or otherwise impairs any existing public beach access point unless the local government simultaneously provides or requires the permittee to provide equivalent or better public access; or
   3. (3) includes a proposal to build a concrete slab or other impervious surface within 200 feet of the line of vegetation or within the eroding area boundary (if such a boundary is established in the local beach/dune plan), whichever distance is greater. Local governments may authorize construction of a concrete slab or other impervious surface beneath a habitable structure elevated on pilings provided the slab will not extend beyond the perimeter of the structure and will not be structurally attached to the building's foundation. Local governments shall not authorize the construction, outside the perimeter of a habitable structure, of a concrete slab or other impervious surface whose area exceeds 5.0% of the footprint of the habitable structure. The use of permeable materials such as brick pavers, limestone, or gravel is recommended for drives or parking areas.

3. (c) Encroachments on public beaches.

   1. (1) Prohibition of construction on the public beach. A local government is prohibited from issuing a certificate authorizing any person to undertake any construction on the public beach or any construction that encroaches in whole or in part on the public beach. This prohibition does not prevent the approval of man-made vegetated mounds and dune walkovers under a properly issued dune protection permit and beachfront construction certificate. Any issuance or approval of a permit, certificate, or any other instrument contrary to this subsection is void.
   2. (2) Construction landward of the public beach. Local governments shall not issue any beachfront construction certificate authorizing construction landward of the public beach that functionally supports or depends on, or is otherwise related to, proposed or existing structures that encroach on the public beach, regardless of whether the encroaching structure is on land that was previously landward of the public beach.

   3. (3) Repair of existing structures on the public beach. A local government shall only issue a beachfront construction certificate or dune protection permit authorizing the repair of a structure that crosses the line of vegetation and encroaches on a public beach if the proposed repairs comply with the standards provided in this paragraph and §15.6(e) and (f) of this title (relating to Concurrent Dune Protection and Beachfront Construction Standards), if the structure is not subject to imminent collapse, and if there is no enforcement action pending under this chapter, the Open Beaches Act, the Dune Protection Act, or the local government plan. 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. Pursuant to this paragraph, a local government may authorize the repair of an existing structure that crosses the line of vegetation and encroaches on a public beach notwithstanding the provisions of paragraphs (1) and (2) of this subsection.

      1. (A) Local governments shall not issue a certificate or permit authorizing repair of a structure that crosses the line of vegetation, as determined pursuant to subparagraph (E) of this paragraph, and encroaches on a public beach if the local government determines that the repairs:

         1. (i) include a proposal to repair or construct a slab or other impervious surface of concrete or other impervious materials, although wooden decking, brick pavers, or other pervious materials may be used beneath the footprint of the structure
         2. (ii) include a proposal to repair or construct an enclosed space below the base flood elevation and seaward of the line of vegetation;
         3. (iii) include a proposal to increase the footprint of the structure;
         4. (iv) are for a structure without a functioning septic system or sewer connection as determined by the local government or the Texas Natural Resource Conservation Commission, unless a septic system may be repaired as provided in subparagraph (B) of this paragraph;
         5. (v) include a proposal for construction, repair, or maintenance of an erosion response structure;
         6. (vi) are for a structure previously built, repaired, or renovated in violation of this subchapter or the local government plan or without an approved certificate or permit; or
         7. (vii) include a proposal to use soil or sediment within the beach/dune system that is not of an acceptable mineralogy or grain size when compared to the sediments found on the site.
      2. (B) A local government may issue a beachfront construction certificate or dune protection permit for the construction or repair of a septic system landward of the line of vegetation if the system complies with the rules of the Texas Natural Resource Conservation Commission and the local government governing on-site sewage facilities.
      3. (C) A local government shall only issue a certificate or permit for the repair of an amenity that crosses the line of vegetation and encroaches on a public beach or that is attached to a structure that crosses the line of vegetation and encroaches on a public beach only if the amenity is less than 50% damaged and if all non-essential paving or other impervious surfaces associated with the amenity are replaced by wooden decking, brick pavers, or other pervious materials.

      4. (D) A local government shall only issue a certificate or a permit authorizing the construction of a dune restoration project concurrent with the repair of a structure that crosses the line of vegetation if the proposed dune restoration follows the standards provided in this paragraph and §15.7(e) of this title (relating to Local Government Management of the Public Beach). A dune restoration project under this paragraph shall:

         1. (i) use sand that is of an acceptable mineralogy or grain size when compared to the sediments found on the site;
         2. (ii) either extend no more than ten feet seaward of the footprint of the structure or extend no more than twenty feet seaward of the line of vegetation;
         3. (iii) use indigenous vegetation that will achieve the same protective quality as the surrounding natural dunes or other dunes in the general vicinity; and
         4. (iv) not restrict or interfere with the public use of the beach at normal high tide.
      5. (E) A person submitting an application for repair of a structure that crosses the line of vegetation and encroaches on a public beach shall submit an original executed copy of the following statement signed by the owner of the property to the local government, General Land Office, and the Office of the Attorney General.
         Attached Graphic
         
      6. (F) A local government may only authorize the repair of structures pursuant to the provisions of this paragraph from the effective date of this paragraph through June 1, 2000. Notwithstanding any other provision under this subchapter, a local government's dune protection permits or beachfront construction certificates issued under this paragraph shall be valid for no more than 12 months from the date of issuance. A local government shall not renew a dune protection permit or beachfront construction certificate issued under this paragraph.

4. (d) Dedication of new beach access points.

   1. (1) Pursuant to the authority provided in the Open Beaches Act, §61.015(g), and as a condition of beachfront construction certification as to consistency with a local government's plan, a local government shall require a permittee to dedicate to the public new public beach access or parking area(s), where necessary, for consistency with the beach access and use, vehicular control, or beach user fee provisions of the pertinent state-approved dune protection and beach access plan. Such provisions shall incorporate the standards for pedestrian and vehicular access established in §15.7 of this title (relating to Local Government Management of the Public Beach).
   2. (2) A local government shall require a permittee to dedicate an access area if it issues a certificate allowing a permittee to conduct activities which will impair access to and from the beach in any manner. Such a dedicated access area shall provide access equivalent to or better than the access impaired by the permittee's activity and shall be consistent with the pertinent provisions regarding beach access and use, vehicular controls.

Source Note:The provisions of this §15.5 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996, 21 TexReg 3004; amended to be effective February 28, 2000, 25 TexReg 1713.