75R9882 MI-F
By Gray H.B. No. 3082
Substitute the following for H.B. No. 3082:
By Bosse C.S.H.B. No. 3082
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to coastal erosion.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subchapter H, Chapter 33, Natural Resources Code,
1-5 is amended to read as follows:
1-6 SUBCHAPTER H. COASTAL EROSION
1-7 Sec. 33.601. SHORT TITLE [Coastal Erosion Duties and
1-8 Authority]. This subchapter may be known and cited as the "Coastal
1-9 Erosion Planning and Response Act." [(a) The land office shall act
1-10 as the lead agency for the coordination of coastal erosion
1-11 avoidance, remediation, and planning. The commissioner shall
1-12 ensure that erosion avoidance, remediation, and planning protect
1-13 the common law rights of the public in public beaches as affirmed
1-14 by Subchapter B, Chapter 61 of this code.]
1-15 [(b) The commissioner shall, in coordination with state and
1-16 federal agencies and local governments, promulgate rules,
1-17 recommendations, standards, and guidelines for erosion avoidance
1-18 and remediation and for prioritizing critical coastal erosion
1-19 areas. The commissioner shall identify critical coastal erosion
1-20 areas and establish recommendations, standards, and guidelines for
1-21 coastal erosion avoidance and remediation in those areas.]
1-22 Sec. 33.602. DEFINITIONS [COASTAL EROSION PROJECTS]. In
1-23 this subchapter:
1-24 (1) "Coastal zone" means coastal territory delineated
2-1 by the boundary established under Section 33.2053(k).
2-2 (2) "Critically eroding area" means an area in the
2-3 coastal zone that is experiencing a historical erosion rate, as
2-4 identified by the most recently published data of the Bureau of
2-5 Economic Geology of The University of Texas, that the commissioner
2-6 considers a threat to public health, safety, or welfare, public
2-7 infrastructure, areas of national importance, public beach access
2-8 and recreation, traffic safety, private property, or fish and
2-9 wildlife habitat.
2-10 (3) "Emergency" means an unusual incident resulting
2-11 from natural causes that the commissioner determines may endanger
2-12 the health, safety, or resources of the residents of the state,
2-13 including damage to or erosion of a public beach resulting from a
2-14 hurricane or major storm.
2-15 (4) "Erosion response" means an action intended to
2-16 address coastal erosion, mitigate the effect of coastal erosion, or
2-17 maintain or enhance beach stability or width, including beach
2-18 nourishment, sediment management, beneficial use of dredged
2-19 material, construction of breakwaters, dune creation or
2-20 enhancement, revegetation, or other action or method the
2-21 commissioner determines appropriate to address erosion or the
2-22 effect of coastal erosion. The term does not include construction
2-23 of a breakwater or bulkhead landward of the shoreline depicted on a
2-24 coastal boundary survey conducted under Section 33.609.
2-25 (5) "Fund" means the coastal erosion response fund
2-26 created under Section 33.604.
2-27 (6) "Local government" means a political subdivision
3-1 of the state.
3-2 (7) "Public beach" has the meaning assigned by Section
3-3 61.013 [(a) The land office shall engage in erosion demonstration
3-4 projects and studies in conjunction with other state agencies,
3-5 local governments, and federal agencies, including the United
3-6 States Army Corps of Engineers.]
3-7 [(b) Such projects and studies shall address the
3-8 feasibility, cost, and financing of different methods of avoiding,
3-9 slowing, or remedying coastal erosion, including but not limited to
3-10 the following:]
3-11 [(1) selective placement and stockpiling of
3-12 beach-quality dredged material where appropriate to replenish
3-13 eroded beach, bay, and dune areas;]
3-14 [(2) guidelines on grain size and toxicity level;]
3-15 [(3) establishment of beach nourishment projects as a
3-16 method of flood control;]
3-17 [(4) promoting the protection, revegetation, and
3-18 restoration of dunes;]
3-19 [(5) the planting of vegetation as a means of
3-20 inhibiting bayshore erosion and projects developing and cultivating
3-21 disease-resistant vegetation adapted to local conditions;]
3-22 [(6) decreasing the current deficiency in the sand
3-23 budget;]
3-24 [(7) the feasibility of constructing new dams,
3-25 jetties, groins, and other impoundment structures with sediment
3-26 bypassing systems;]
3-27 [(8) the feasibility of retrofitting existing
4-1 impoundment structures to allow sediment bypassing;]
4-2 [(9) estimating the quantity and quality of sediment
4-3 trapped by reservoirs and identification of the sediment sources;]
4-4 [(10) decreasing and eliminating human-induced
4-5 subsidence by means including, but not limited to, evaluating the
4-6 consequences of limiting groundwater withdrawals and maintaining
4-7 adequate pressure in hydrocarbon reservoirs, consistent with proper
4-8 petroleum reservoir engineering principles and applicable
4-9 regulatory requirements; and]
4-10 [(11) giving preference to and encouraging "soft"
4-11 methods of avoiding, slowing, or remedying erosion in lieu of
4-12 erecting hard or rigid shorefront structures].
4-13 Sec. 33.603. COASTAL EROSION PLANNING AND RESPONSE AUTHORITY
4-14 [GRANTS AND GIFTS]. (a) Contingent on legislative appropriation
4-15 for coastal erosion planning and response, the commissioner may
4-16 carry out any erosion response activity described in Section
4-17 33.605, including specific projects designed to inhibit or
4-18 remediate the effects of coastal erosion.
4-19 (b) The commissioner may adopt rules for erosion response in
4-20 the coastal zone.
4-21 (c) The commissioner may award grants from the fund to local
4-22 governments to carry out erosion response activities under this
4-23 subchapter.
4-24 (d) The commissioner may enter property in the coastal zone
4-25 in order to perform a survey required under Section 33.609.
4-26 (e) The commissioner shall develop a program to increase
4-27 public awareness through public education about the causes of
5-1 erosion, the consequences of erosion, the importance of barrier
5-2 islands, dunes, and bays as a natural defense against storms and
5-3 hurricanes, and erosion response techniques.
5-4 (f) An activity undertaken by the commissioner under this
5-5 subchapter does not impair littoral rights. An upland owner who,
5-6 because of erosion response activity undertaken by the
5-7 commissioner, ceases to hold title to land that extends to the
5-8 shoreline as altered by the erosion response is entitled to
5-9 continue to exercise all littoral rights possessed by that owner
5-10 before the date the erosion response commenced, including rights of
5-11 ingress, egress, boating, bathing, and fishing [The commissioner
5-12 may apply for, request, solicit, contract for, receive, and accept
5-13 gifts, grants, donations, and other assistance from any source to
5-14 carry out the powers and duties provided by this subchapter].
5-15 Sec. 33.604. COASTAL EROSION RESPONSE FUND [COASTAL EROSION
5-16 PUBLIC AWARENESS AND EDUCATION]. The coastal erosion response fund
5-17 is established in the state treasury to be used by the commissioner
5-18 to carry out the purposes of this subchapter. The fund consists of
5-19 all money appropriated for the purposes of this subchapter and all
5-20 money received by the commissioner from any other source for the
5-21 purpose of erosion response [(a) The land office shall be
5-22 responsible for and shall coordinate with other agencies to
5-23 increase public awareness through public education concerning the
5-24 causes of erosion; the consequences of erosion; the importance of
5-25 barrier islands, dunes, and bays as a natural defense against
5-26 storms and hurricanes; and erosion avoidance techniques.]
5-27 [(b) The commissioner, in cooperation with the University of
6-1 Texas Bureau of Economic Geology and local county and municipal
6-2 governments for each coastal county, shall jointly quantify the
6-3 erosion rates at each location along the shore of the Gulf of
6-4 Mexico, prepare a plan for establishing and implementing a building
6-5 set-back line that will accommodate a 50-year shoreline retreat,
6-6 and report back to the legislature with recommendations].
6-7 Sec. 33.605. USES OF THE FUND. (a) Money in the fund may
6-8 be used for:
6-9 (1) research, study, and identification of critically
6-10 eroding areas, the accumulation of other information necessary to
6-11 carry out the purposes of this subchapter, including information on
6-12 the causes of erosion and the location of sand sources for beach
6-13 nourishment, and the performance of sediment quality tests;
6-14 (2) planning and designing erosion response projects;
6-15 (3) construction, installation, and maintenance of
6-16 erosion response projects, including costs for supervision,
6-17 inspection, project management, and other activities essential to
6-18 successful project completion;
6-19 (4) preproject and postproject land surveys and
6-20 studies designed to inspect and monitor project performance,
6-21 shoreline change, impacts on natural resources, and other factors
6-22 the commissioner considers appropriate;
6-23 (5) obtaining a permit, easement, right-of-way,
6-24 right-of-entry, or other authorization necessary for successful
6-25 completion of an erosion response activity;
6-26 (6) removing an obstacle, impediment, or encroachment
6-27 from a public beach that interferes with free and unrestricted
7-1 public beach use, access, and enjoyment;
7-2 (7) responding to an emergency condition;
7-3 (8) funding grants to local governments in the coastal
7-4 zone for erosion response;
7-5 (9) participating in a federal erosion response
7-6 project;
7-7 (10) identifying short-term and long-term economic
7-8 costs and benefits of maintaining and improving beaches and other
7-9 critically eroding areas;
7-10 (11) contracting with a state university or agency to
7-11 effectuate the purposes of this subchapter;
7-12 (12) poststorm management planning and response and
7-13 restoration and redevelopment of the Texas coast after an
7-14 emergency; and
7-15 (13) any other action authorized by this subchapter.
7-16 (b) The commissioner's decision to pay for an erosion
7-17 response activity or award a grant under this subchapter must take
7-18 into account any existing or proposed erosion response activity in
7-19 the coastal zone, the impact on public or private property, cost,
7-20 needs in other critically eroding areas, the amount of money in the
7-21 fund, and any other factor relevant to the success of the proposed
7-22 activity.
7-23 Sec. 33.606. REPORT TO LEGISLATURE. At least once each
7-24 biennium, the commissioner shall submit to the legislature a
7-25 coastal erosion planning and response report that lists critically
7-26 eroding areas, proposed erosion response activities, estimated
7-27 funding required for each proposed activity, all erosion response
8-1 activities funded under this subchapter since the previous report,
8-2 the financial status of the fund, and the amount of money needed to
8-3 carry out the purposes of this subchapter over the next biennium.
8-4 Sec. 33.607. GRANTS TO LOCAL GOVERNMENTS. (a) A local
8-5 government in the coastal zone may apply to the commissioner for a
8-6 grant to pay for erosion response activities. An application, to
8-7 the extent applicable, must:
8-8 (1) briefly describe the proposed erosion response
8-9 activity and estimate the dates for commencement and completion;
8-10 (2) estimate the costs, including postproject
8-11 maintenance and monitoring costs, and identify the source of any
8-12 local government funding;
8-13 (3) evaluate scientifically the extent of erosion and
8-14 analyze the degree of threat to public health and safety, public
8-15 beach use and access, public and private property, areas of state
8-16 or national importance, or natural resources;
8-17 (4) evaluate scientifically the prospect for long-term
8-18 success of the proposed erosion response activity;
8-19 (5) describe the anticipated downdrift impact of the
8-20 proposed activity on property located outside the project area;
8-21 (6) summarize the long-term plan for monitoring and
8-22 maintenance of the proposed activity, including plans for poststorm
8-23 or emergency monitoring and maintenance;
8-24 (7) describe the availability and proximity of an
8-25 adequate source of beach-quality sand and the quality of sand to be
8-26 used;
8-27 (8) describe the anticipated impacts to the area from
9-1 which sand is mined, including updrift and downdrift;
9-2 (9) state the amount of the requested grant;
9-3 (10) describe the extent of commitment of local
9-4 government resources and financial need; and
9-5 (11) include any other information the commissioner
9-6 considers necessary to fully evaluate the grant application.
9-7 (b) A local government may use a grant from the fund as a
9-8 match in seeking other funding. If a local government uses a grant
9-9 from the fund as a match in seeking other funding and is later
9-10 reimbursed by another source, including another governmental
9-11 entity, the local government shall immediately reimburse the fund
9-12 the amount received, up to and including the amount of the original
9-13 grant.
9-14 (c) The commissioner may establish a cost-share requirement
9-15 for any proposed project or grant.
9-16 Sec. 33.608. GRANT APPROVAL. The commissioner may approve,
9-17 disapprove, or conditionally approve any grant application
9-18 submitted under Section 33.607. For each grant application, the
9-19 commissioner shall:
9-20 (1) determine whether the grant application is
9-21 approved, disapproved, or conditionally approved and shall notify
9-22 the applicant of the commissioner's determination;
9-23 (2) specify any grant condition, including any
9-24 deadline for an activity to be funded by the grant, any deadline
9-25 for commencement and completion, postactivity monitoring
9-26 requirements, and performance and filing of the survey required
9-27 under Section 33.609, and shall notify the applicant of the
10-1 determination; and
10-2 (3) specify any cost-share requirement.
10-3 Sec. 33.609. SURVEY REQUIREMENT. (a) Notwithstanding any
10-4 law to the contrary, a person may not undertake, in the coastal
10-5 zone, an action relating to erosion response that will cause or
10-6 contribute to shoreline alteration before the person has conducted
10-7 and filed a coastal boundary survey in the same manner as the
10-8 survey of public land required by Chapter 21 and any applicable
10-9 rule of the commissioner and has obtained any required lease,
10-10 easement, or other instrument from the commissioner or board, as
10-11 applicable. On filing of the survey, the shoreline depicted on the
10-12 survey is a fixed line for the purpose of locating a shoreline
10-13 boundary, subject to movement landward of that line. A coastal
10-14 boundary survey conducted under this section may not be filed until
10-15 the commissioner gives notice of approval under Subsection (c).
10-16 (b) The survey must contain the following statement:
10-17 "NOTICE: This survey was performed in accordance with Section
10-18 33.609, Natural Resources Code, for the purpose of evidencing the
10-19 location of the shoreline in the area depicted in this survey as
10-20 that shoreline existed before commencement of erosion response
10-21 activity in the coastal zone, as required by Chapter 33, Natural
10-22 Resources Code. If a lease, easement, or other instrument was
10-23 issued by the Commissioner of the General Land Office or the School
10-24 Land Board in connection with the erosion response activity, the
10-25 line depicted on this survey fixes the shoreline for the purpose of
10-26 locating a shoreline boundary, subject to movement landward as
10-27 provided by Section 33.609, Natural Resources Code."
11-1 (c) Within 30 days after the date the commissioner approves
11-2 a coastal boundary survey under this section, the commissioner
11-3 shall provide notice of that approval by:
11-4 (1) publication in the Texas Register;
11-5 (2) publication for two consecutive weeks in a
11-6 newspaper of general circulation in the county or counties in which
11-7 the land depicted on the survey is located; and
11-8 (3) filing a copy of the approval in the archives and
11-9 records division of the land office.
11-10 Sec. 33.610. LANDOWNER CONSENT. (a) Except as provided by
11-11 Subsection (c), a state agency or local government may not
11-12 undertake erosion response activity on:
11-13 (1) private property without first obtaining the
11-14 written consent of the property owner; or
11-15 (2) permanent school fund land without first obtaining
11-16 the written consent of the board.
11-17 (b) On receipt of consent required under Subsection (a), the
11-18 commissioner may enter the property and undertake any erosion
11-19 response activity authorized under this subchapter.
11-20 (c) Consent to undertake erosion response activity on a
11-21 public beach is not required under this subchapter.
11-22 Sec. 33.611. IMMUNITY. The state, the commissioner, and
11-23 land office staff are immune from suit and from liability for any
11-24 act or omission related to:
11-25 (1) the approval, disapproval, funding, or performance
11-26 of an erosion response activity;
11-27 (2) the failure of an erosion response activity
12-1 undertaken by the commissioner under this subchapter to fulfill its
12-2 intended purpose;
12-3 (3) the adoption, approval, disapproval, funding, or
12-4 performance of a survey, erosion response project, or erosion
12-5 response activity; or
12-6 (4) any matter related to erosion response by the
12-7 commissioner provided for in this subchapter.
12-8 Sec. 33.612. JUDICIAL REVIEW. (a) Judicial review of
12-9 rights affected by an action of the state, the commissioner, or
12-10 land office staff under this subchapter shall be under the
12-11 substantial evidence rule. In order to prevail, a person seeking
12-12 review must prove that the action complained of was arbitrary,
12-13 capricious, or not otherwise in accordance with law.
12-14 (b) Venue for an action relating to this subchapter is in
12-15 Travis County.
12-16 Sec. 33.613. PROOF OF CLAIM. A person who claims title to
12-17 permanent school fund land as a result of accretion, reliction, or
12-18 avulsion in the coastal zone after September 1, 1997, in order to
12-19 prevail in the claim, must prove that:
12-20 (1) a change in the shoreline has occurred;
12-21 (2) the change did not occur as a result of the
12-22 claimant's actions, the action of any predecessor in title, the
12-23 action of any grantee, assignee, licensee, or person authorized by
12-24 the claimant to use the claimant's land, or an erosion response
12-25 activity; and
12-26 (3) the claimant is entitled to benefit from the
12-27 change.
13-1 Sec. 33.614. CORRECTION OF TAX ROLLS. (a) The owner of
13-2 land that has become submerged because of erosion may request the
13-3 commissioner's assistance under this section in removing the
13-4 property from the tax rolls by submitting to the commissioner:
13-5 (1) a written request for assistance under this
13-6 section;
13-7 (2) a legal description of the property owned by the
13-8 landowner as identified on the tax rolls;
13-9 (3) a copy of the vesting deed or other instrument
13-10 conveying title to the property to the landowner;
13-11 (4) a map or other document accurately depicting the
13-12 property and the portion of the property that has become submerged
13-13 because of erosion;
13-14 (5) a written declaration, signed by the landowner and
13-15 acknowledged by a notary public, that the property or a portion of
13-16 the property, as identified on the map required under Subdivision
13-17 (4), is no longer owned by the landowner because of erosion and
13-18 that ownership is vested in the permanent school fund; and
13-19 (6) the name and address of the local appraisal
13-20 district and each taxing entity to be notified of permanent school
13-21 fund ownership and the tax parcel number of the property.
13-22 (b) On receipt of the information required under Subsection
13-23 (a), the commissioner shall inform the local appraisal district and
13-24 identified taxing entities that the property listed on local tax
13-25 rolls and the subject of the request under Subsection (a) is owned
13-26 by the permanent school fund because of erosion.
13-27 (c) On receipt of notice from the commissioner the district
14-1 or taxing entity shall remove the property from the tax rolls.
14-2 SECTION 2. (a) This Act takes effect September 1, 1997.
14-3 (b) Sections 33.609 and 33.610, Natural Resources Code, as
14-4 added by this Act, apply only to erosion response activity
14-5 undertaken on or after September 1, 1997.
14-6 (c) Section 33.611, Natural Resources Code, as added by this
14-7 Act, applies only to a cause of action that accrues on or after
14-8 September 1, 1997. A cause of action that accrued before the
14-9 effective date of this Act is covered by the law as it existed
14-10 immediately before that date, and that law is continued in effect
14-11 for that purpose.
14-12 SECTION 3. The importance of this legislation and the
14-13 crowded condition of the calendars in both houses create an
14-14 emergency and an imperative public necessity that the
14-15 constitutional rule requiring bills to be read on three several
14-16 days in each house be suspended, and this rule is hereby suspended.