SECTION 16.4. Thresholds for Referral

(a) Pursuant to §505.32 of this title (relating to Requirements for Referral of a Proposed Agency Action), the thresholds for potential referral of GLO or SLB actions to the council for consistency review are as follows.

(b) Real Estate Activities.

(1) Except for energy-related activities (i.e., activities related to oil, gas, or other mineral exploration and production), the GLO's or SLB's issuance of the following instruments exceeds the threshold if the authorized activities would adversely affect CNRA acreage greater than that in paragraph (2) of this subsection:

(A) a coastal easement pursuant to the Texas Natural Resources Code, §33.111, for dredging of basins and channels or construction of piers, docks, marinas, bulkheads, seawalls, and other waterfront structures on state-owned submerged land;

(B) a cabin permit pursuant to the Texas Natural Resources Code, §33.103, for the construction or use of fishing cabins on state-owned submerged land; or

(C) a surface lease pursuant to the Texas Natural Resources Code, §51.121, for construction of commercial facilities, artificial reefs, and other non-waterfront structures on state-owned land.

(2) The acreage thresholds for real estate activities are as follows:

(A) one-half acre of oyster reef;

(B) one acre of submerged aquatic vegetation;

(C) one acre of coastal wetland;

(D) one acre of algal flat;

(E) one acre of tidal mud flat;

(F) one acre of tidal sand flat;

(G) one acre of state submerged land; or

(H) one acre of upland area fitting the definition of coastal barrier, coastal shore area, Gulf beach, critical dune area, special hazard area, critical erosion area, coastal historic area, or coastal preserve, as defined in Texas Natural Resources Code, §33.203(1).

(c) Energy-Related Activities (activities related to oil, gas, or other mineral exploration and production).

(1) The GLO's or SLB's approval of a mineral lease plan of operations for hard mineral exploration and production exceeds the threshold if the authorized activities would adversely affect CNRA acreage greater than the following:

(A) In the upper coast:

(i) one-half acre of oyster reef;

(ii) five acres of submerged aquatic vegetation;

(iii) five acres of coastal wetland;

(iv) five acres of algal flat;

(v) five acres of tidal mud flat;

(vi) ten acres of tidal sand flat;

(vii) 40 acres of waters in the open Gulf of Mexico;

(viii) 40 acres of open bay waters under tidal influence; or

(ix) 40 acres of upland area fitting the definition of coastal barrier, coastal shore area, Gulf beach, critical dune area, special hazard area, critical erosion area, coastal historic area, or coastal preserve, as defined in Texas Natural Resources Code, §33.203(1).

(B) In the lower coast:

(i) one-half acre of oyster reef;

(ii) 40 acres of submerged aquatic vegetation;

(iii) five acres of coastal wetland;

(iv) 20 acres of algal flat;

(v) 20 acres of tidal mud flat;

(vi) 40 acres of tidal sand flat;

(vii) 40 acres of waters in the open Gulf of Mexico;

(viii) 40 acres of open bay waters under tidal influence; or

(ix) 40 acres of upland area fitting the definition of coastal barrier, coastal shore area, Gulf beach, critical dune area, special hazard area, critical erosion area, coastal historic area, or coastal preserve, as defined in Texas Natural Resources Code, §33.203(1).

(2) The GLO's or SLB's issuance of a geophysical permit for exploration for oil, gas, or other minerals on state-owned lands exceeds the threshold if the permit authorizes one of the following:

(A) For upland areas, a shot in excess of 40 pounds of dynamite equivalent;

(B) For submerged areas, either:

(i) a shot in excess of 20 pounds of dynamite equivalent; or

(ii) a shot hole less than 120 feet below the mud line.

(3) With respect to energy-related activities not covered within the scope of a hard mineral plan of operations, the GLO's or SLB's issuance of a surface lease (pursuant to the Texas Natural Resources Code, §51.121), or a coastal easement (pursuant to the Texas Natural Resources Code, §33.111), exceeds the threshold only if the instrument authorizes:

(A) permanent disturbance of five acres or more of a critical area or removal of more than 10,000 cubic yards of material from a critical area, except with respect to submerged aquatic vegetation and tidal mud or sand flats in the lower coast; or

(B) permanent disturbance of ten acres or more of submerged aquatic vegetation or tidal mud or sand flats in the lower coast.

(d) A miscellaneous easement issued pursuant to the Texas Natural Resources Code, §51.291, exceeds the threshold for potential referral if the miscellaneous easement authorizes:

(1) permanent disturbance of five acres or more of a critical area or removal of more than 10,000 cubic yards of material from a critical area, except with respect to submerged aquatic vegetation and tidal mud or sand flats in the lower coast; or

(2) permanent disturbance of ten acres or more of submerged aquatic vegetation or tidal mud or sand flats in the lower coast.

(e) Any GLO or SLB action described in §16.1 of this title (relating to Definitions and Scope) that may adversely affect a CNRA that has not been specifically addressed in this section, exceeds the threshold if the action would adversely affect greater than 40 acres of any such CNRA.

(f) Any GLO or SLB action described in §16.1 of this title (relating to Definitions and Scope) that may adversely affect a CNRA must be consistent with the goals and policies in §16.2 and §16.3 of this title (relating to Policy for Major Actions, and Policies for Specific Activities and Coastal Natural Resource Areas), whether above or below the applicable threshold.

Source Note: The provisions of this §16.4 adopted to be effective December 18, 1995, 20 TexReg 10271; amended to be effective October 23, 1996, 21 TexReg 9935; amended to be effective November 1, 2005, 30 TexReg 7049