SECTION 155.3. Easements

(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.

(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.

(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.

(d) Consideration of application.

(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 contract.

(2) Upon receipt of all necessary application information, the board or the commissioner, as provided by subsection (e) of this section, may issue, deny, or issue with qualifications, an easement contract.

(e) 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 in subsection (f) of this section:

(1) existing fill and associated bulkhead, riprap, dredged areas, groins, breakwaters, or other similar existing projects;

(2) existing piers, docks, boatlifts, or other similar existing projects;

(3) proposed piers, docks, boatlifts, or other similar projects provided such projects have been determined by the General Land Office (GLO) staff to have minimal unavoidable environmental impacts;

(4) proposed fill and associated riprap or bulkheads provided such fill impacts less than two hundred (200) square feet;

(5) proposed riprap which impacts the minimum amount of coastal public land to prevent erosion;

(6) renewals or assignments of previously approved projects provided the project has not been altered;

(7) habitat creation and/or living shorelines that are less than 500 linear feet and not associated with another project on coastal public land; or

(8) pipelines, fiber optic lines, electric lines, and other uses authorized under Texas Natural Resources Code, Chapter 51.

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

(1) Fill projects for the sole purpose of land reclamation will not be approved; and

(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 GLO will not be approved.

(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) Docks, piers, and watercraft storage facilities.

(A) Piers, docks, and watercraft storage facilities 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.

(B) Piers, docks, and watercraft storage facilities 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 habitat that cannot be avoided will be minimized to the extent practicable.

(C) When constructed for private/residential use, only one pier or dock, with normal appurtenances, two watercraft storage facilities (limited to one boathouse), and one additional personal watercraft slip may extend from each defined parcel of littoral property. Piers, docks, and watercraft storage facilities 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.

(D) In addition to the authorization granted by subparagraph (C) of this paragraph, the board may, in its discretion, authorize the construction of additional watercraft storage facilities for use in connection with a private residence. Any such authorization must be consistent with subparagraph (A) and (B) of this paragraph and will be subject to the fee structure outlined in §155.15 of this title (relating to Fees).

(5) Dredged areas.

(A) Propwashing is an unacceptable method of dredging and will not be approved.

(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.

(C) Extension of piers into deeper water is preferred to the dredging of access channels or basins whenever practical.

(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.

(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.

(F) A channel proposed to be dredged through highly productive coastal public lands is discouraged and will be approved only in unusual circumstances.

(G) Dredging should be conducted in a manner that minimizes turbidity and dispersal of dredged material.

(6) Dredged material disposal area.

(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.

(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

(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

(ii) disposal of dredge material shall be in accordance with §501.25 of this title (relating to Policies for Dredging and Dredged Material and Placement).

(C) Open water disposal shall comply with subparagraph (B) of this paragraph 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.

(D) Consideration of habitat creation and improvement should be made when environmental damage results.

(7) Jetty, groin, and breakwater.

(A) No new jetties or groins will be authorized except under the most compelling circumstances upon request by a city, county, or other public entity for a public purpose.

(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.

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

(i) no significant erosion of adjacent property has occurred or is occurring as a result of the presence of the jetties or groins;

(ii) no significant adverse impacts to sensitive habitats have occurred nor are sensitive habitats threatened by the presence of the jetties or groins;

(iii) no unnatural accumulation resulting in the deposition of sediments greater than five square feet per linear foot of the affected shoreline; and

(iv) even if a jetty or groin causes significant unnatural accumulation but the removal of the jetty or groin will cause severe adverse impacts to sensitive natural resources, provided the boundary between state-owned submerged land and the adjacent littoral property is established by a Licensed State Land Surveyor. Non-compliance with any of the conditions in this subparagraph will be sufficient cause for denial or termination of authorization and for removal of a non-conforming structure.

(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) Shoreline stabilization projects.

(A) Living Shorelines and vegetative cover are the preferred method of shoreline stabilization and shall be used where practical. Impacts to sensitive habitat will be avoided whenever possible and minimized and mitigated when unavoidable.

(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 riprap 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.

(C) The use of tires, automobile bodies or parts, appliances, trash and other unconsolidated material is not acceptable and shall not be approved.

(D) Except in special circumstances, a bulkhead or seawall should be located no further seaward than the mean of the high water line, and, to the extent practicable, designed so that reflected wave energy does not destroy stable marine bottom or constitute a safety hazard.

(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) Marinas.

(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.

(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) Placement of fill.

(A) Placement 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.

(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.

(C) The perimeter of fills should be provided with vegetation, retaining walls, riprap, or other mechanisms for erosion prevention.

(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.

(g) 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) 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) Minimization. Unavoidable impacts shall be minimized to the extent practicable through the use of structural or non-structural modifications.

(3) Mitigation and Compensation. Unavoidable impacts or damages to coastal public land will require mitigation and/or a resource impact fee as set forth in §155.15(b)(6) of this title. Mitigation for impacts to coastal public land must occur on coastal public land.

(h) 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 GLO. Updates of these recommendations will be furnished on request. Development activities conforming with these environmental recommendations normally will receive favorable consideration by the GLO.

(i) 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 the conditions of the contract.

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; amended to be effective September 1, 2008, 33 TexReg 6947; amended to be effective November 14, 2010, 35 TexReg 9915; amended to be effective February 3, 2013, 38 TexReg 382; amended to be effective September 16, 2021, 46 TexReg 5900