1. (a) The GLO and the SLB shall comply with the policies in this section when approving oil, gas, and other mineral lease plans of operation, 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. To the extent applicable to the public beach, as public beach is defined in Texas Natural Resources Code, §61.013(c), the policies in this section are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public, including Texas Natural Resources Code, Chapter 61 (Use and Maintenance of Public Beaches) and Chapter 15 of this title (relating to Coastal Area Planning).

2. (b) Construction, Operation, and Maintenance of Oil and Gas Exploration and Production Facilities.

   1. (1) Oil and gas exploration and production on state submerged lands shall comply with the policies in this subsection.

   2. (2) Policies.

      1. (A) In or near critical areas, facilities shall be located and operated and geophysical and other operations shall be located and conducted in such a manner as to avoid and otherwise minimize adverse effects, including those from the disposal of solid waste and disturbance resulting from the operation of vessels and wheeled or tracked vehicles, whether on areas under lease, easement, or permit or on or across access routes thereto. Where practicable, buffer zones for critical areas shall be established and directional drilling or other methods to avoid disturbance, such as pooling or unitization, shall be employed.
      2. (B) Lessees, easement holders, and permittees shall construct facilities in a manner that avoids impoundment or draining of coastal wetlands, if practicable, and shall mitigate any adverse effects on coastal wetlands impounded or drained in accordance with the sequencing requirements in this subsection.
      3. (C) Upon completion or cessation of operations, lessees, easement holders, and permittees shall remove facilities and restore any significantly degraded areas to pre-project conditions as closely as practicable, unless facilities can be used for maintenance or enhancement of CNRAs or unless restoration activities would further degrade CNRAs.

3. (c) Development in Critical Areas.

   1. (1) Dredging and construction of structures in, or the discharge of dredged or fill material into, critical areas shall comply with the policies in this subsection. In implementing this subsection, cumulative and secondary adverse effects of these activities will be considered.

      1. (A) The policies in this subsection shall be applied in a manner consistent with the goal of achieving no net loss of critical area functions and values.

      2. (B) Persons proposing development in critical areas shall demonstrate that no practicable alternative with fewer adverse effects is available.

         1. (i) The person proposing the activity shall demonstrate that the activity is water-dependent. If the activity is not water-dependent, practicable alternatives with less adverse effects are presumed to exist, unless the person clearly demonstrates otherwise.
         2. (ii) The analysis of alternatives shall be conducted in light of the activity's overall purpose. For an integrated project (i.e., one which combines more than one use within a single operation or project), the activity's "overall purpose" refers to the overall purpose of the entire integrated project.
         3. (iii) "Alternatives" may include different operation or maintenance techniques or practices or a different location, design, configuration, or size. Among the factors that may be considered in the analysis is the ability of the person proposing the activity to obtain an alternative site, including, if the overall purpose of the activity is marine, that person's ability to obtain an alternative site within the coastal zone.

      3. (C) In evaluating practicable alternatives, the following sequence shall be applied.

         1. (i) Adverse effects on critical areas shall be avoided to the greatest extent practicable.
         2. (ii) Unavoidable adverse effects shall be minimized to the greatest extent practicable by limiting the degree or magnitude of the activity and its implementation.
         3. (iii) Appropriate and practicable compensatory mitigation shall be required to the greatest extent practicable for all adverse effects that cannot be avoided or minimized.

      4. (D) "Compensatory mitigation" includes restoring adversely affected critical areas or replacing adversely affected critical areas by creating new critical areas. Compensatory mitigation should be undertaken, when practicable, in areas adjacent or contiguous to the affected critical areas (on-site). If on-site compensatory mitigation is not practicable, compensatory mitigation should be undertaken in close physical proximity to the affected critical areas if practicable and in the same watershed if possible (off-site). Compensatory mitigation should also attempt to replace affected critical areas with critical areas with characteristics identical to or closely approximating those of the affected critical areas (in-kind). The preferred order of compensatory mitigation is:

         1. (i) on-site, in-kind;
         2. (ii) off-site, in-kind;
         3. (iii) on-site, out-of-kind; and
         4. (iv) off-site, out-of-kind.
      5. (E) Mitigation banking is acceptable compensatory mitigation if use of the mitigation bank has been approved by the agency authorizing the development and mitigation credits are available for withdrawal. Preservation through acquisition for public ownership of unique critical areas or other ecologically important areas may be acceptable compensatory mitigation in exceptional circumstances. Examples of this include areas of high priority for preservation or restoration, areas whose functions and values are difficult to replicate, or areas not adequately protected by regulatory programs. Acquisition will normally be allowed only in conjunction with preferred forms of compensatory mitigation.
      6. (F) In determining compensatory mitigation requirements, the impaired functions and values of the affected critical area shall be replaced on a one-to-one ratio. Replacement of functions and values on a one-to-one ratio may require restoration or replacement of the physical area affected on a ratio higher than one-to-one. While no net loss of critical area functions and values is the goal, it is not required in individual cases where mitigation is not practicable or would result in only inconsequential environmental benefits. It is also important to recognize that there are circumstances where the adverse effects of the activity are so significant that, even if alternatives are not available, the activity may not be permitted regardless of the compensatory mitigation proposed.

      7. (G) Development in critical areas shall not be authorized if significant degradation of critical areas will occur. Significant degradation occurs if:

         1. (i) the activity will jeopardize the continued existence of species listed as endangered or threatened, or will result in likelihood of the destruction or adverse modification of a habitat determined to be a critical habitat under the Endangered Species Act, 16 United States Code Annotated, §§1531-1544;
         2. (ii) the activity will cause or contribute, after consideration of dilution and dispersion, to violation of any applicable surface water quality standards established under §501.14(f) of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas);
         3. (iii) the activity violates any applicable toxic effluent standard or prohibition established under §501.14(f) of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas);
         4. (iv) the activity violates any requirement imposed to protect a marine sanctuary designated under the Marine Protection, Research, and Sanctuaries Act of 1972, 33 United States Code Annotated, Chapter 27; or

         5. (v) taking into account the nature and degree of all identifiable adverse effects, including their persistence, permanence, areal extent, and the degree to which these effects will have been mitigated pursuant to subparagraphs (C) and (D) of this subsection, the activity will, individually or collectively, cause or contribute to significant adverse effects on:

            1. (I) human health and welfare, including effects on water supplies, plankton, benthos, fish, shellfish, wildlife, and consumption of fish and wildlife;
            2. (II) the life stages of aquatic life and other wildlife dependent on aquatic ecosystems, including the transfer, concentration, or spread of pollutants or their byproducts beyond the site, or their introduction into an ecosystem, through biological, physical, or chemical processes;
            3. (III) ecosystem diversity, productivity, and stability, including loss of fish and wildlife habitat or loss of the capacity of a coastal wetland to assimilate nutrients, purify water, or reduce wave energy; or
            4. (IV) generally accepted recreational, aesthetic or economic values of the critical area which are of exceptional character and importance.
   2. (2) The GLO and the SLB will coordinate with one another, with other agencies required to comply with §501.14(h) of this title (relating to Development in Critical Areas), and with federal agencies when evaluating alternatives, determining appropriate and practicable mitigation, and assessing significant degradation. In connection with authorizations for development in critical areas, the GLO and the SLB shall require a demonstration that the requirements of paragraph (1)(A)-(G) of this subsection have been satisfied.
   3. (3) For any dredging or construction of structures in, or discharge of dredged or fill material into, critical areas that is subject to the requirements of §16.2(c) of this title (relating to Policy for Major Actions), data and information on the cumulative and secondary adverse affects of the project need not be produced or evaluated to comply with this subsection if such data and information is produced and evaluated in compliance with §16.2(c)(1)(F) of this title (relating to Policy for Major Actions).

4. (d) Construction of Waterfront Facilities and Other Structures on State Submerged Lands.

   1. (1) Development on state submerged lands shall comply with the policies in this subsection.

   2. (2) Policies.

      1. (A) Marinas shall be designed and, to the greatest extent practicable, sited so that tides and currents will aid in flushing of the site or renew its water regularly.
      2. (B) Marinas designed for anchorage of private vessels shall provide facilities for the collection of waste, refuse, trash, and debris.
      3. (C) Marinas with the capacity for long-term anchorage of more than ten vessels shall provide pump-out facilities for marine toilets, or other such measures or facilities that provide an equal or better level of water quality protection.
      4. (D) Marinas, docks, piers, wharves and other structures shall be designed and, to the greatest extent practicable, sited to avoid and otherwise minimize adverse effects on critical areas from boat traffic to and from those structures.
      5. (E) For purposes of providing access to coastal waters, construction of docks, piers, wharves, and other structures shall be preferred over dredging of channels or basins or filling of submerged lands, if such construction is practicable, environmentally preferable, and will not interfere with commercial navigation.

      6. (F) Piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs (including artificial reefs for compensatory mitigation) shall be limited to the minimum size necessary to serve the project purpose and shall be constructed in a manner that:

         1. (i) does not significantly interfere with public navigation;
         2. (ii) does not significantly interfere with the natural coastal processes which supply sediments to coastal shore areas or otherwise exacerbate erosion of coastal shore areas; and
         3. (iii) avoids and otherwise minimizes shading of critical areas and other adverse effects.

      7. (G) Facilities shall be located at sites or designed and constructed to the greatest extent practicable to avoid and otherwise minimize the potential for adverse effects from:

         1. (i) construction and maintenance of other development associated with the facility;
         2. (ii) direct release to coastal waters and critical areas of pollutants from oil or hazardous substance spills or stormwater runoff; and
         3. (iii) deposition of airborne pollutants in coastal waters and critical areas.
      8. (H) Where practicable, pipelines, transmission lines, cables, roads, causeways, and bridges shall be located in existing rights-of-way or previously disturbed areas if necessary to avoid or minimize adverse effects and if it does not result in unreasonable risks to human health, safety, and welfare.
      9. (I) To the greatest extent practicable, construction of facilities shall occur at sites and times selected to have the least adverse effects on recreational uses of CNRAs and on spawning or nesting seasons or seasonal migrations of terrestrial and aquatic wildlife.
      10. (J) Facilities shall be located at sites which avoid the impoundment and draining of coastal wetlands. If impoundment or draining cannot be avoided, adverse effects to the impounded or drained wetlands shall be mitigated in accordance with the sequencing requirements of subsection (c) of this section. To the greatest extent practicable, facilities shall be located at sites at which expansion will not result in development in critical areas.
      11. (K) Where practicable, piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs shall be constructed with materials that will not cause any adverse effects on coastal waters or critical areas.

      12. (L) Developed sites shall be returned as closely as practicable to pre-project conditions upon completion or cessation of operations by the removal of facilities and restoration of any significantly degraded areas, unless:

          1. (i) the facilities can be used for public purposes or contribute to the maintenance or enhancement of coastal water quality, critical areas, beaches, state submerged lands, or coastal shore areas; or
          2. (ii) restoration activities would further degrade CNRAs.
      13. (M) Water-dependent uses and facilities shall receive preference over those uses and facilities that are not water-dependent.
      14. (N) Nonstructural erosion response methods such as beach nourishment, sediment bypassing, nearshore sediment berms, and planting of vegetation shall be preferred instead of structural erosion response methods.
      15. (O) Major residential and recreational waterfront facilities shall to the greatest extent practicable accommodate public access to coastal waters and preserve the public's ability to enjoy the natural aesthetic values of coastal submerged lands.
      16. (P) Activities on state submerged land shall avoid and otherwise minimize any significant interference with the public's use of and access to such lands.
      17. (Q) Erosion of Gulf beaches and coastal shore areas caused by construction or modification of jetties, breakwaters, groins, or shore stabilization projects shall be mitigated to the extent the costs of mitigation are reasonably proportionate to the benefits of mitigation. Factors that shall be considered in determining whether the costs of mitigation are reasonably proportionate to the cost of the construction or modification and benefits include, but are not limited to, environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits.

5. (e) Dredging and Dredged Material Disposal and Placement.

   1. (1) Dredging and the disposal and placement of dredged material shall avoid and otherwise minimize adverse effects to coastal waters, state submerged lands, critical areas, coastal shore areas, and Gulf beaches (as those terms are defined in §16.1 of this title (relating Definitions and Scope)) to the greatest extent practicable. In implementing this subsection, cumulative and secondary adverse effects of dredging and the disposal and placement of dredged material and the unique characteristics of affected sites shall be considered.

      1. (A) Dredging and dredged material disposal and placement shall not cause or contribute to, after consideration of dilution and dispersion, violation of any applicable surface water quality standards established under §501.14(f) of this title (relating to Discharge of Municipal and Industrial Wastewater to Coastal Waters).
      2. (B) Except as otherwise provided in subparagraph (D) of this paragraph, adverse effects on critical areas from dredging and dredged material disposal or placement shall be avoided and otherwise minimized, and appropriate and practicable compensatory mitigation shall be required, in accordance with subsection (c) of this section.

      3. (C) Except as provided in subparagraph (D) of this paragraph, dredging and the disposal and placement of dredged material shall not be authorized if:

         1. (i) there is a practicable alternative that would have fewer adverse effects on coastal waters, state submerged lands, critical areas, coastal shore areas, and Gulf beaches, so long as that alternative does not have other significant adverse effects;
         2. (ii) all appropriate and practicable steps have not been taken to minimize adverse effects on coastal waters, state submerged lands, critical areas, coastal shore areas, and Gulf beaches; or
         3. (iii) significant degradation of critical areas under subsection (c)(1)(G)(v) of this section would result.
      4. (D) A dredging or dredged material disposal or placement project that would be prohibited solely by application of subparagraph (C) of this paragraph may be allowed if it is determined to be of overriding importance to the public and national interest in light of economic impacts on navigation and maintenance of commercially navigable waterways.

   2. (2) Adverse effects from dredging and dredged material disposal and placement shall be minimized as required in paragraph (1) of this subsection. Adverse effects can be minimized by employing the techniques in this paragraph where appropriate and practicable.

      1. (A) Adverse effects from dredging and dredged material disposal and placement can be minimized by controlling the location and dimensions of the activity. Some of the ways to accomplish this include:

         1. (i) locating and confining discharges to minimize smothering of organisms;
         2. (ii) locating and designing projects to avoid adverse disruption of water inundation patterns, water circulation, erosion and accretion processes, and other hydrodynamic processes;
         3. (iii) using existing or natural channels and basins instead of dredging new channels or basins, and discharging materials in areas that have been previously disturbed or used for disposal or placement of dredged material;
         4. (iv) limiting the dimensions of channels, basins, and disposal and placement sites to the minimum reasonably required to serve the project purpose, including allowing for reasonable overdredging of channels and basins, and taking into account the need for capacity to accommodate future expansion without causing additional adverse effects;
         5. (v) discharging materials at sites where the substrate is composed of material similar to that being discharged;
         6. (vi) locating and designing discharges to minimize the extent of any plume and otherwise control dispersion of material; and
         7. (vii) avoiding the impoundment or drainage of critical areas.

      2. (B) Dredging and disposal and placement of dredged material shall comply with applicable standards for sediment toxicity. Adverse effects from constituents contained in materials discharged can be minimized by treatment of or limitations on the material itself. Some ways to accomplish this include:

         1. (i) disposal or placement of dredged material in a manner that maintains physiochemical conditions at discharge sites and limits or reduces the potency and availability of pollutants;
         2. (ii) limiting the solid, liquid, and gaseous components of material discharged;
         3. (iii) adding treatment substances to the discharged material; and
         4. (iv) adding chemical flocculants to enhance the deposition of suspended particulates in confined disposal areas.

      3. (C) Adverse effects from dredging and dredged material disposal or placement can be minimized through control of the materials discharged. Some ways to accomplish this include:

         1. (i) use of containment levees and sediment basins designed, constructed, and maintained to resist breaches, erosion, slumping, or leaching;
         2. (ii) use of lined containment areas to reduce leaching where leaching of chemical constituents from the material is expected to be a problem;
         3. (iii) capping in-place contaminated material, or selectively discharging the most contaminated material first and then capping it with the remaining material;
         4. (iv) properly containing discharged material and maintaining discharge sites to prevent point and nonpoint pollution; and
         5. (v) timing the discharge to minimize adverse effects from unusually high water flows, wind, wave, and tidal actions.

      4. (D) Adverse effects from dredging and dredged material disposal or placement can be minimized by controlling the manner in which material is dispersed. Some ways of accomplishing this include:

         1. (i) where environmentally desirable, distributing the material in a thin layer;
         2. (ii) orienting material to minimize undesirable obstruction of the water current or circulation patterns;
         3. (iii) using silt screens or other appropriate methods to confine suspended particulates or turbidity to a small area where settling or removal can occur;
         4. (iv) using currents and circulation patterns to mix, disperse, dilute, or otherwise control the discharge;
         5. (v) minimizing turbidity by using a diffuser system or releasing material near the bottom;
         6. (vi) selecting sites or managing discharges to confine and minimize the release of suspended particulates and turbidity and maintain light penetration for organisms; and
         7. (vii) setting limits on the amount of material to be discharged per unit of time or volume of receiving waters.

      5. (E) Adverse effects from dredging and dredged material disposal or placement operations can be minimized by adapting technology to the needs of each site. Some ways of accomplishing this include:

         1. (i) using appropriate equipment, machinery, and operating techniques for access to sites and transport of material, including those designed to reduce damage to critical areas;
         2. (ii) having personnel on site adequately trained in avoidance and minimization techniques and requirements; and
         3. (iii) designing temporary and permanent access roads and channel spanning structures using culverts, open channels, and diversions that will pass both low and high water flows, accommodate fluctuating water levels, and maintain circulation and faunal movement.

      6. (F) Adverse effects on plant and animal populations from dredging and dredged material disposal or placement can be minimized by:

         1. (i) avoiding changes in water current and circulation patterns that would interfere with the movement of animals;
         2. (ii) selecting sites or managing discharges to prevent or avoid creating habitat conducive to the development of undesirable predators or species that have a competitive edge ecologically over indigenous plants or animals;
         3. (iii) avoiding sites having unique habitat or other value, including habitat of endangered species;
         4. (iv) using planning and construction practices to institute habitat development and restoration to produce a new or modified environmental state of higher ecological value by displacement of some or all of the existing environmental characteristics;
         5. (v) using techniques that have been demonstrated to be effective in circumstances similar to those under consideration whenever possible and, when proposed development and restoration techniques have not yet advanced to the pilot demonstration stage, initiating their use on a small scale to allow corrective action if unanticipated adverse effects occur;
         6. (vi) timing dredging and dredged material disposal or placement activities to avoid spawning or migration seasons and other biologically critical time periods; and
         7. (vii) avoiding the destruction of remnant natural sites within areas already affected by development.

      7. (G) Adverse effects on human use potential from dredging and dredged material disposal or placement can be minimized by:

         1. (i) 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;
         2. (ii) selecting sites which are not valuable as natural aquatic areas;
         3. (iii) 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
         4. (iv) selecting sites that will not increase incompatible human activity or require frequent dredge or fill maintenance activity in remote fish and wildlife areas.

      8. (H) Adverse effects from new channels and basins can be minimized by locating them at sites:

         1. (i) that ensure adequate flushing and avoid stagnant pockets; or
         2. (ii) 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
         3. (iii) 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;
         4. (iv) provided that, for any dredging of new channels or basins subject to the requirements of §16.2(c) 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 subparagraph if such data and information is produced and evaluated in compliance with §16.2(c)(1)(A) of this title (relating to Policy for Major Actions).
   3. (3) 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 paragraph (1) of this subsection unless modified in design, size, use, or function.

   4. (4) Dredged material from commercially navigable waterways is a potentially reusable resource and must be used beneficially in accordance with this policy. 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. 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.

      1. (A) Factors that shall be considered in determining whether a beneficial use project is appropriate include:

         1. (i) environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits;
         2. (ii) the proximity of the beneficial use site to the dredge site; and
         3. (iii) the quality of the dredged material and its suitability for beneficial use.

      2. (B) Examples of the beneficial use of dredged material include, but are not limited to:

         1. (i) projects designed to reduce or minimize erosion or provide shoreline protection;
         2. (ii) projects designed to create or enhance public beaches or recreational areas;
         3. (iii) projects designed to benefit the sediment budget or littoral system;
         4. (iv) projects designed to improve or maintain terrestrial or aquatic wildlife habitat;
         5. (v) projects designed to create new terrestrial or aquatic wildlife habitat, including the construction of marshlands, coastal wetlands, or other critical areas;
         6. (vi) projects designed and demonstrated to benefit benthic communities or aquatic vegetation;
         7. (vii) projects designed to create wildlife management areas, parks, airports, or other public facilities;
         8. (viii) projects designed to cap landfills or other waste disposal areas;
         9. (ix) projects designed to fill private property or upgrade agricultural land, if cost-effective public beneficial uses are not available; and
         10. (x) projects designed to remediate past adverse impacts on the coastal zone.

   5. (5) If dredged material cannot be used beneficially as provided in paragraph (4) of this subsection, to avoid and otherwise minimize adverse effects as required in paragraph (1) of this subsection, preference will be given to the greatest extent practicable to disposal in:

      1. (A) contained upland sites;
      2. (B) other contained sites; and
      3. (C) open water areas of relatively low productivity or low biological value.
   6. (6) For new sites, dredged materials shall not be disposed of or placed directly on the boundaries of state submerged lands or at such location so as to slump or migrate across the boundaries of state 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.

   7. (7) Emergency dredging shall be allowed without a prior consistency determination as required in the applicable consistency rule set out in Chapter 505 of this title (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies) when:

      1. (A) there is an unacceptable hazard to life or navigation;
      2. (B) there is an immediate threat of significant loss of property; or
      3. (C) 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 GLO or the SLB, as appropriate, shall notify the council secretary at least 24 hours prior to commencement of any emergency dredging operation. The notice shall include a statement demonstrating the need for emergency action. Prior to initiation of the dredging operations representatives of the project sponsor, the GLO, or the SLB shall, if possible, make all reasonable efforts to meet with council's designated representatives to ensure consideration of and consistency with applicable policies in this section. Compliance with all applicable policies in this section shall be required at the earliest possible date. The GLO or the SLB, as appropriate, and the applicant shall submit a consistency determination to the council, as described in Chapter 505 of this title (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies) within 60 days after the emergency operation is complete.

Source Note:The provisions of this §16.3 adopted to be effective December 18, 1995, 20 TexReg 10271.