1. (a) Any easement granted to a littoral owner will not be construed as recognition of a right existing in the littoral owner incident to the ownership of littoral property.
2. (b) Permits from other agencies. In the event the activity for which the easement is sought requires the littoral owner to seek one or more permits from any other agency or department of government of the state, the board may agree with such agency or department to issue a single document incorporating all rights and privileges of the applicant.
3. (c) Mineral or surface interest owner. The board may grant a channel easement to any surface or mineral interest holder for purposes necessary or appropriate to the use of such interests.
4. (d) Application. An applicant desiring an easement must submit an application to the General Land Office on forms approved by the General Land Office, not less than 30 days prior to the desired approval date. If shoreline alteration is proposed, a survey plat and field notes may be required. In addition to submitting an application form, applicants are encouraged to present reasons why the easement should be granted. It is the responsibility of the applicant to demonstrate affirmatively that the proposed structure is in the public interest. The board may request any additional information it deems necessary.

5. (e) Consideration of application.

   1. (1) Unless otherwise authorized by these sections, the board will hold a meeting to evaluate, consider, and hear testimony on an application. Upon receipt of an application and all requested information, the board may issue, deny, or issue with qualifications, an easement
   2. (2) Upon receipt of all necessary application information, the board or the commissioner, as provided by subsection (f) of this section, may issue, deny, or issue with qualifications, an easement contract.

6. (f) The commissioner may approve an easement application without board approval if the application is for any of the following activities but not for commercial/industrial activity and is consistent with the criteria for decision as set forth below in subsection (g) of this section;

   1. (1) existing fill and associated bulkhead, riprap, dredged areas, groins, breakwaters, or other similar existing projects;
   2. (2) existing piers, docks, boatlifts, or other similar existing projects;
   3. (3) proposed piers, docks, boatlifts, or other similar projects provided such projects have been determined by the Land Office staff to have minimal unavoidable environmental impacts;
   4. (4) proposed fill and associated riprap or bulkheads provided such fill impacts less than two hundred (200) square feet;
   5. (5) proposed riprap which impacts the minimum amount of coastal public land to prevent erosion;
   6. (6) renewals or assignments of previously approved projects provided the project has not been altered; or
   7. (7) habitat creation not associated with another project on coastal public land.

7. (g) Criteria for decision. Project proposals will be evaluated in accordance with the following factors.

   1. (1) Fill projects for the sole purpose of land reclamation will not be approved; and
   2. (2) Any project that is determined by the board or the commissioner as unsafe or contrary to the established policies of the board and/or the Land Office will not be approved.
   3. (3) Adverse impacts to coastal natural resource areas must be avoided to the extent practicable and minimized where unavoidable. Applicants may be required to provide appropriate mitigation, as set forth in subsection (b) of this section, for those impacts which are unavoidable. Where impacts to coastal natural resource areas are minimal, the payment of a resource impact fee may be required in lieu of undertaking a physical mitigation project where such project is not practicable.

   4. (4) Docks and piers.

      1. (A) Piers and docks will be limited to the minimum size necessary to serve the purpose of the project and will be constructed in a manner that does not interfere with navigation or other authorized uses.
      2. (B) Piers and docks will be designed and constructed in a manner that avoids existing marshes, oyster reefs, seagrass vegetation or shallow water capable of supporting these habitats to the extent practicable. Impacts to sensitive habitats that cannot be avoided will be minimized to the extent practicable.
      3. (C) When constructed for private/residential use, only one pier or dock, with normal appurtenances, may extend from each defined parcel of littoral property. A pier or dock shall extend perpendicular from a point on the shoreline which is not less than ten feet from the adjacent littoral owner's property line, unless such a design would obstruct navigation or would unreasonably interfere with an adjoining littoral property owner's use of the waterfront.

   5. (5) Dredged areas.

      1. (A) Propwashing is an unacceptable method of dredging and will not be approved.
      2. (B) Projects shall be limited to the minimum size necessary to serve the project purpose. Joint use of access channels by multiple littoral property owners is preferred and encouraged rather than individual channels.
      3. (C) Extension of piers into deeper water is preferred to the dredging of access channels or basins whenever practical.
      4. (D) A channel or basin should be designed to insure adequate flushing and should prevent the creation of conditions which are likely to cause stagnant water pockets.
      5. (E) The alignment of a channel or canal should make maximum use of a natural or existing channel. Design and alignment should minimize disruption of natural sheetflow, water flow, and drainage systems.
      6. (F) A channel proposed to be dredged through highly productive coastal public lands is discouraged and will be approved only in unusual circumstances.
      7. (G) Dredging should be conducted in a manner that minimizes turbidity and dispersal of dredged material.

   6. (6) Dredged material disposal area.

      1. (A) All dredged material should be placed on and contained within suitable upland sites of relatively low productivity above mean high water and where adverse effects of such disposal are minimized.

      2. (B) Dredge material containing hazardous substances that presents a threat to public health, safety or the environment, shall be disposed of only in compliance with federal, state and local laws and regulations; further

         1. (i) dredge material shall not be disposed of in any place where such disposal would adversely affect municipal water supplies, shellfish beds, fishery areas (including spawning and breeding areas), wildlife, or recreational areas; and
         2. (ii) disposal of dredge material shall be in accordance with §501.14 of this title (relating to Texas Coastal Management Program Policies for Specific Activities and Coastal Natural Resource Areas).
      3. (C) Open water disposal shall comply with subparagraph (B) and shall be considered only if upland alternatives are not available. Any disposal in open waters must be in compliance with all federal, state and local laws and regulations and shall be consistent with the goals and policies of the Texas Coastal Management Program.
      4. (D) Consideration of habitat creation and improvement should be made when environmental damage results.

   7. (7) Jetty, groin, and breakwater.

      1. (A) No new groins will be authorized except under the most compelling circumstances upon request by a city, county, or other public entity for a public purpose.
      2. (B) Plans for construction of a jetty, groin, or breakwater must be analyzed to insure that the structure does not create adverse sediment transportation patterns that induce erosion or undesirable shoaling in adjacent areas.

      3. (C) Existing but unauthorized groins may be authorized to remain in place until such groins are destroyed or damaged in excess of fifty percent under the following conditions:

         1. (i) no significant erosion of adjacent property has occurred or is occurring as a result of the presence of the groin;
         2. (ii) no significant adverse impacts to sensitive habitats have occurred nor are sensitive habitats threatened by the presence of the groin;
         3. (iii) no unnatural accumulation resulting in the deposition of sediments greater than five square feet per linear foot of the affected shoreline; and
         4. (iv) non-compliance with any of the above conditions will be sufficient cause for denial or termination of authorization and for removal of a non-conforming structure.
         5. (v) If a groin causes significant unnatural accumulation but the removal of the groin will cause severe adverse impacts to sensitive natural resources the boundary between state-owned submerged land and the adjacent littoral property must be established by a Licensed State Land Surveyor.
      4. (D) In addition to minimizing adverse physical effects, the owner of a jetty, groin, or breakwater must ensure that the structure does not unduly interfere with public use of submerged land or the shoreline.

   8. (8) Shoreline stabilization projects.

      1. (A) Vegetative cover is the preferred method of shoreline stabilization and shall be used where its use is practical. Impacts to sensitive habitat will be avoided whenever possible and minimized and mitigated when unavoidable.
      2. (B) Riprap is an acceptable method of shoreline stabilization if composed of interlocking brick, rock large enough not to be displaced by storms, or concrete rubble which is free of protruding rebar. Where possible, sloping riprapping should be used rather than a vertical seawall or bulkhead. Riprap material may extend seaward from the shoreline only as far as required to protect the shoreline.
      3. (C) The use of tires, automobile bodies or parts, appliances, trash and other unconsolidated material is not acceptable and shall not be approved.
      4. (D) Except in special circumstances, a bulkhead or seawall should be located no further seaward than the mean of the high water line, and designed so that reflected wave energy does not destroy stable marine bottom or constitute a safety hazard.
      5. (E) An application for the construction of a bulkhead on a significant coastal public marsh or grassflat, where such will lead to the destruction of this resource, will normally be denied. To avoid this, extreme care should be taken as to the location and type of construction planned for bulkheads in a wetland area.

   9. (9) Marinas.

      1. (A) Marinas should be located in areas where the least dredging and maintenance will be required. Plans for a marina should minimize the disruption of currents and the need for excavation of the shore area. Dead end or deep canals without adequate flushing should be avoided.
      2. (B) Each marina shall provide adequate facilities to its users for the reception of waste and/or garbage. Failure to insure that the users of a marina have access to facilities necessary for the proper and lawful disposal of waste and/or garbage on an ongoing basis may subject the easement to termination and the easement holder to any applicable civil and criminal penalties.

   10. (10) Deposition of fill.

       1. (A) Deposition of fill proposed in marshes and submerged grass bed areas normally will be denied. Consideration will be given to a fill proposal for a water dependent use or public use on relatively unproductive coastal public lands.
       2. (B) A shoreline fill should be designed and located so that significant damage to existing ecological values or natural resources, or alternation of natural currents will not occur.
       3. (C) The perimeter of fills should be provided with vegetation, retaining walls, riprap, or other mechanisms for erosion prevention.
       4. (D) Fill material should be of such quality that it will not cause water quality degradation. Submerged land should not be considered for a sanitary landfill or the disposal of solid waste.

8. (h) Mitigation sequence. An applicant is responsible for identifying practicable alternatives or available sites for a proposed project with the fewest adverse impacts. For projects requiring mitigation for unavoidable adverse impacts to natural resources, review shall be based on the following sequence:

   1. (1) Avoidance. Projects must be designed to avoid critical area impacts to the extent practicable. Critical areas include, but are not limited to, a coastal wetland, an oyster reef, a hard substrate reef, submerged vegetation, or tidal sand or mud flat.
   2. (2) Minimization. Unavoidable impacts shall be minimized to the extent practicable through the use of structural or non-structural modifications.
   3. (3) Mitigation and Compensation. Each project approved without a separate mitigation requirement will be subject to a resource impact fee as set forth in §155.15(b)(2)(F).
9. (i) Consideration of application by mineral interest holder. The board will review and consider an application for a channel easement to a mineral interest holder on coastal public lands to insure conformity with the policies, practices, and procedures in these rules and regulations. Environmental recommendations for certain development and production activities will be provided to the mineral interest holder on bay tracts and certain other tracts in the notice of bids booklet published by the General Land Office. Updates of these recommendations will be furnished on request. Development activities conforming with these environmental recommendations normally will receive favorable consideration by the General Land Office.

10. (j) Approval criteria. An easement, if granted by the board, will be approved subject to these rules in addition to such terms and conditions as may be prescribed in the contractual agreement. The board may waive a rule at its discretion. All structures on coastal public lands will be subject to inspection at any time by the board or their authorized representatives. Any easement contract will be for a specific purpose. If a change in the contractual agreement is desired, an amendment application must be filed. An applicant, by accepting an easement to occupy or otherwise place a structure on coastal public lands or water surface areas, agrees and consents to comply with and be bound by the following additional terms and conditions:

    1. (1) to keep the commissioner informed at all times of his or her address, and if a corporation, of the address of its principal place of business and the name and address of the officer or agent authorized to receive service of notice;
    2. (2) that the allowance of the easement will be subject to the express condition that the rights granted will not unduly prevent or interfere in any way with the management, administration of, or the granting, either prior or subsequent to the easement, of other rights by the board of any part of the area included in the easement;
    3. (3) that the structure authorized under contract will be maintained in proper order and will not be allowed to deteriorate to such a degree as to become a hazard or public nuisance;
    4. (4) that all of the surface estate of coastal public lands shall be worked, dredged, filled, or used in such a manner as to prevent pollution, and in the event of pollution, the easement holder shall use all reasonable means to recapture all pollutants which have escaped, whether by reason of a sudden and accidental release or any other means. The easement holder shall be responsible for all damage to public and private property which is the result of pollution arising from any use of the easement including, but not limited to, the easement holder's failure to provide adequate facilities for the reception of waste and/or garbage;
    5. (5) that the disposal or discharge of any waste or garbage into state waters from any marina, pier, dock, wharf, or any other structure located on coastal public lands is strictly prohibited.
11. (k) Renewals. A request for renewal of an easement shall utilize the contract form, rate schedule, and adhere to rules and regulations in effect at the time the renewal is made. Any person requesting a renewal must submit an application form as required in this rule and must include the easement number and date of expiration of the existing easement.
12. (l) Assignment. Assignment may be made of any interest rights granted in whole or in part subject to the written approval of the commissioner. Any such assignment must be filed in triplicate accompanied by a written request for approval in which the assignee agrees to comply with all rules and regulations contained herein and in the contractual agreement. A fee of $50 payable to the General Land Office must accompany the application for approval of an assignment. No assignment is effective to transfer any rights until approved by the commissioner, the grantee, and the assignee.

13. (m) Termination. Failure to comply with these rules and regulations or the terms and conditions of the easement shall subject the easement to termination by the board.

    1. (1) Upon termination of any easement, the grantee will, at the option of the board, within 120 days from said termination, remove all of its personal property and all structures and manmade improvements authorized in the easement contract, provided all monies due have been paid. The grantee shall take whatever measures as are necessary to restore the area involved as nearly as practicable to the same condition that existed prior to placement of any structures thereon, except as otherwise approved in writing by the commissioner.
    2. (2) The board may consent to premature termination of all or part of any contractual agreement.

Source Note:The provisions of this §155.3 adopted to be effective January 1, 1976; amended to be effective June 17, 1983, 8 TexReg 1858; amended to be effective August 29, 1984, 9 TexReg 4455; amended to be effective October 12, 1988, 13 TexReg 4855; amended to be effective December 1, 1995, 20 TexReg 9574; amended to be effective August 1, 2001, 26 TexReg 5664.