SECTION 15.17. Local Government Erosion Response Plans

(a) Pursuant to the authority granted by Texas Natural Resources Code, §33.607, local governments must develop plans for reducing public expenditures for erosion and storm damage losses to public and private property, including public beaches. The Erosion Response Plan (ERP) should be prepared in consultation with the General Land Office and may include the following elements:

(1) A building set-back line that will accommodate a shoreline retreat. The local government should consider the following criteria in establishing a building set-back line:

(A) Historical erosion rates as determined by the University of Texas at Austin, Bureau of Economic Geology, or other source approved by the General Land Office;

(B) The reference point for the setback line may be any one of the following:

(i) The line of vegetation (LOV);

(ii) Mean Low Tide;

(iii) Mean High Tide; or

(iv) The line depicted in a coastal boundary survey approved and filed as provided in Texas Natural Resources Code, §33.136;

(C) The dune protection line (DPL). The building set-back line may not be located further landward than the DPL, which is established by a local government under the Dune Protection Act and updated as specified in §15.3(k) of this title (relating to Local Government Review of Dune Protection Line Location). The building set-back line must protect as much of the critical dune area as practicable.

(2) A prohibition on new construction seaward of the building set-back line. The prohibition criteria should include at least the following minimum criteria:

(A) To the maximum extent practicable, all structures should be constructed landward of the building set-back line.

(B) Construction of structures landward of the building set-back line establishes a rebuttable presumption that the permittee has followed the mitigation sequence requirements for avoidance and minimization of effects on dunes and dune vegetation specified in §15.4(f) of this title (relating to Mitigation). However, the permittee is not exempt from compliance with compensatory mitigation requirements for unavoidable adverse effects on dunes and dune vegetation.

(3) Consideration of exemptions. Local governments may consider exemptions from the prohibition of residential and commercial construction seaward of the building set-back line for:

(A) properties for which the owner has demonstrated to the satisfaction of the local government that no practicable alternatives to construction seaward of the building set-back line exist. For purposes of this section, practicable means available and capable of being done after taking into consideration existing building practices, siting alternatives, and the footprint of the structure in relation to the area of the buildable portion of the lot, and considering the overall development scheme for the property;

(B) properties for which construction is permitted under a dune protection and beach access plan establishing a building set-back line certified by the General Land Office prior to the effective date of this section; and

(C) structures located seaward of the building set-back line prior to the effective date of this section for which modifications are sought that do not increase the footprint of the structure. However, structures seaward of the building set-back line that are damaged more than 50% or destroyed should be subject to this section before any repairs or reconstruction may be conducted.

(4) Construction requirements for exempt properties. Where the local government allows an exemption from the prohibition for building seaward of the building set-back line, it should require the following conditions of construction:

(A) plans and certifications for the structure by a registered professional engineer licensed in the State of Texas providing evidence of the following:

(i) a minimum two-foot freeboard above base flood elevation (BFE);

(ii) no enclosures below BFE;

(iii) the adequacy of elevated building foundations and the proper placement, compaction, and protection of fill when used as construction for all newly constructed, substantially damaged, and substantially improved buildings elevated on pilings, posts, piers, or columns in accordance with the latest edition of specifications outlined in American Society of Civil Engineers, Structural Engineering Institute, Flood Resistant Design and Construction, ASCE 24-05;

(iv) feasible relocation of any habitable structure; and

(v) all construction is designed to minimize impacts on natural hydrology;

(B) location of all construction should be landward of the landward toe of the foredune ridge, where practicable.

(5) Procedures for preserving and enhancing the public's right of access to and use of the public beach from losses due to erosion and storm damage. The ERP should include the following:

(A) evaluation of all areas of public access to determine those that require improved protection from erosion and storm surge;

(B) evaluation of construction methods and design improvements for areas of beach access to reduce costs associated with repair, rebuild, or replacement due to storm damage and erosion;

(C) list of goals and implementation schedules for areas of public access design improvements that prioritize short term (two years or less) and long term goals;

(D) inventory all publicly funded existing amenities and access ways as a basis for qualifying for FEMA post-storm funding sources;

(E) establishment of procedures based on subparagraphs (A) and (B) of this paragraph for conducting post-storm assessment and identifying requirements for rehabilitation which include:

(i) inspection of beach access areas after meteorological events;

(ii) compilation of a list of access points that no longer comply with the local government's approved dune protection and beach access plan and the Beach/Dune rules with a description of specific required repairs and replacements including, but not limited to parking, pedestrian and vehicular access ways, and signage; and

(iii) schedules for access area repair and replacement based on available local funding and grant requests.

(6) Procedures for preserving, restoring, and enhancing critical sand dunes for natural storm protection and conservation purposes. The ERP should include the following:

(A) specific proposals for the height (above mean sea level), width (as measured perpendicular to the shoreline), and percent of vegetative cover of critical front row dunes necessary to protect public and private property from severe meteorological events. The minimum dune height should be based on at least 75% of the BFE height from mean sea level established by the National Flood Insurance Program Flood Insurance Rate Maps for the local area;

(B) identification and listing of specific locations where restoration is needed to fill in gaps and blowouts in the foredune ridge;

(C) specific proposals for dune revegetation projects, including the identification of native plant species to be used in these projects;

(D) identification of enhanced dune protection measures for existing residences, multi-family structures and businesses. Establish dune protection measures which protect the landward side of the foredune ridge, which may include, but are not limited to:

(i) use of native (indigenous) vegetation; and

(ii) limitations on the use of fertilizer and mowing;

(E) identification of specific goals and implementation schedules to meet the requirements outlined in subparagraphs (A) - (D) of this paragraph; and

(F) identification of available funding and proposed grant requests to accomplish goals and implementation schedules for dune restoration.

(7) Criteria for voluntary acquisition of property seaward of the building setback line. The local government may develop criteria for identifying properties with structures located entirely seaward of the building set-back line, providing for voluntary acquisition of fee simple title or a lesser interest in such properties, and procedures for prioritizing properties to be acquired.

(b) Local governments must use historical erosion data and other relevant data from the State Coastal Erosion Response Plan in the preparation of local erosion response plans. The State Coastal Erosion Response Plan may be found at http://www.glo.state.tx.us/coastal/pubs.html#reports.

(c) The local government must hold a public educational meeting on the ERP before implementation. The meeting may be held in conjunction with the formal hearing required for establishment of a new DPL, as outlined in §15.3(l) of this title (relating to Provisions for Public Hearings on Dune Protection Lines). If held separately from the hearing on a new DPL, the meeting must be advertised in the same manner outlined in §15.3(l) of this title.

(d) The ERP must be submitted to the General Land Office for review and approval as a dune protection and beach access plan amendment following the procedures outlined in §15.3(o) of this title (relating to Submission of Local Government Plans to the General Land Office).

(1) A local government's governing body must formally approve the ERP prior to submission to the General Land Office. The General Land Office must either grant or deny certification of the local government's ERP within 90 days from receipt, as outlined in §15.3(o) of this title. Certification will be based upon the following criteria:

(A) If the local government adopts an ERP consistent with the provisions of this section, it is presumed that the plan will reduce public expenditures due to erosion and storm damage.

(B) The local government may adopt an ERP with variances from this section, provided that the plan clearly demonstrates that the variances will reduce public expenditures due to erosion and storm damage losses. If the ERP includes a variance from other requirements or prohibitions of this chapter, the local government must provide a reasoned justification for the variance in accordance with §15.3(o)(6) of this title.

(C) Construction prohibitions, exemptions, and requirements of the ERP should be incorporated into the local government procedures for reviewing and approving permit applications.

(2) In the event of denial, the General Land Office must send the ERP back to the local government with a statement of specific objections and the reasons for denial of certification, along with suggestions for modifications. On receipt of the denial, the local government must revise and resubmit the ERP for General Land Office review in accordance with §15.3(o) of this title.

(3) A local government implementing an ERP pursuant to this section must ensure that the ERP is consistent with other provisions of its dune protection and beach access plan through appropriate amendments and incorporate the ERP into the local government dune protection and beach access plan as a separate appendix that clearly identifies portions of the dune protection and beach access plan that implements the ERP. The ERP must be updated concurrent with each review of the DPL required in §15.3(k) of this title.

(4) In order to be fully considered by the General Land Office for an expenditure from the coastal erosion response account (Account) pursuant to Texas Natural Resources Code, §33.605(b)(6)(B), a local government must adopt and submit the ERP or any amendments to the General Land Office for certification no later than December 31 immediately preceding the state fiscal biennium in which funding is sought. Provided, however, for consideration by the General Land Office for an expenditure from the Account in the state fiscal biennium beginning September 1, 2011, a local government must submit a draft ERP to the General Land Office no later than July 1, 2011.

Source Note: The provisions of this §15.17 adopted to be effective August 31, 2010, 35 TexReg 7868