By Gray H.B. No. 3082
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to Erosion Planning and Response Act.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. REPEALER. Subchapter H, Chapter 33, Natural
1-5 Resources Code, is repealed.
1-6 SECTION 2. Chapter 33, Natural Resources Code, is amended by
1-7 adding a new Subchapter H, Coastal Erosion Planning and Response
1-8 Act, to read as follows:
1-9 Sec. 33.601. SHORT TITLE. This subchapter may be known and
1-10 cited as the "Coastal Erosion Planning and Response Act."
1-11 Sec. 33.602. DEFINITIONS. In construing these statutes,
1-12 where the context does not clearly indicate otherwise, the word,
1-13 phrase, or term:
1-14 (1) "Coastal zone" means the boundary established
1-15 under 33.2053(k) of this code.
1-16 (2) "Critically eroding area" means an area within the
1-17 coastal zone which is experiencing a historical erosion rate, as
1-18 identified by the most recently published data of the University of
1-19 Texas at Austin Bureau of Economic Geology, the condition of which
1-20 the commissioner considers a threat to public health, safety, or
1-21 welfare, public infrastructure, areas of national importance,
1-22 public beach access and recreation, traffic safety, private
2-1 property, or fish and wildlife habitat.
2-2 (3) "Emergency" means any unusual incident resulting
2-3 from natural causes which the commissioner determines may endanger
2-4 the health, safety, or resources of the residents of the state,
2-5 including damage to, or erosion of, any public beach resulting from
2-6 a hurricane or major storm.
2-7 (4) "Erosion response" means an action intended to
2-8 address coastal erosion, mitigate the effect of coastal erosion, or
2-9 maintain or enhance beach stability or width, including, but not
2-10 limited to, beach nourishment, sediment management, beneficial use
2-11 of dredged material, construction of breakwaters, dune creation or
2-12 enhancement, revegetation, or any other actions or methods the
2-13 commissioner determines appropriate to address erosion or the
2-14 effects of coastal erosion. Erosion response shall not mean or
2-15 refer to construction of a breakwater or bulkhead landward of the
2-16 shoreline depicted on a current coastal boundary survey conducted
2-17 under Section 33.609 of this subchapter.
2-18 (5) "Fund" means the coastal erosion response fund
2-19 created in Section 33.604 of this subchapter.
2-20 (6) "Local government" means a political subdivision
2-21 of the state located within the coastal zone.
2-22 (7) "Public beach" means the public beach as defined
2-23 under Section 61.013 of this code.
2-24 Sec. 33.603. COASTAL EROSION PLANNING AND RESPONSE
2-25 AUTHORITY. (a) Contingent upon legislative appropriation for
2-26 coastal erosion planning and response, the commissioner is
2-27 authorized to carry out any erosion response activity described in
3-1 Section 33.605 of this subchapter, including, but not limited to,
3-2 performance of specific projects designed to inhibit or remediate
3-3 the effects of coastal erosion.
3-4 (b) The commissioner may promulgate rules for erosion
3-5 response within the coastal zone.
3-6 (c) The commissioner may issue grants from the fund to local
3-7 governments to carry out erosion response activities under this
3-8 subchapter.
3-9 (d) The commissioner may enter onto property within the
3-10 coastal zone in order to perform a survey required under Section
3-11 33.609 of this subchapter.
3-12 (e) The commissioner shall develop a program to increase
3-13 public awareness through public education concerning the causes of
3-14 erosion, the consequences of erosion, the importance of barrier
3-15 islands, dunes, and bays as a natural defense against storms and
3-16 hurricanes, and erosion response techniques.
3-17 (f) Activity undertaken by the commissioner under this
3-18 subchapter shall not impair littoral rights. Any upland owner who,
3-19 due to erosion response activity undertaken by the commissioner,
3-20 ceases to hold title to land which extends to the shoreline, as
3-21 altered by the erosion response activity, shall be entitled to
3-22 continue to exercise all littoral rights possessed by that owner
3-23 prior to the date the activity commenced, including, but not
3-24 limited to, rights of ingress, egress, boating, bathing, and
3-25 fishing.
3-26 Sec. 33.604. CREATION OF COASTAL EROSION RESPONSE FUND. The
3-27 coastal erosion response fund is established in the state treasury
4-1 to be used by the commissioner to carry out the purposes of this
4-2 subchapter. To this fund shall be credited all money appropriated
4-3 for the purposes of this subchapter and all other funds received by
4-4 the commissioner from federal, state, local government, private,
4-5 and other sources for the purpose of erosion response.
4-6 Sec. 33.605. ELIGIBLE USES OF THE FUND. (a) Money in the
4-7 fund may be used for the following purposes:
4-8 (1) research, study, and identification of
4-9 critically-eroding areas and other information necessary to carry
4-10 out the purposes of this subchapter, including causes of erosion,
4-11 location of sand-sources for beach nourishment, and the performance
4-12 of sediment quality tests;
4-13 (2) planning and design of erosion response projects;
4-14 (3) construction, installation, and maintenance of
4-15 erosion response projects, including costs for supervision,
4-16 inspection, project management, and other activities essential to
4-17 successful project completion;
4-18 (4) performing pre- and post-project land surveys and
4-19 studies designed to inspect and monitor project performance,
4-20 shoreline change, natural resource impacts, and such other factors
4-21 deemed appropriate by the commissioner;
4-22 (5) obtaining permits, easements, rights-of-way,
4-23 rights-of-entry, and other authorizations necessary for successful
4-24 completion of erosion response activities;
4-25 (6) removing obstacles, impediments, or encroachments
4-26 from public beaches which interfere with free and unrestricted
4-27 public beach use, access, and enjoyment;
5-1 (7) responding to emergency conditions;
5-2 (8) funding of grants to local governments for erosion
5-3 response;
5-4 (9) participating in federal erosion response
5-5 projects;
5-6 (10) identifying short-term and long-term economic
5-7 costs and benefits of maintaining and improving beaches and other
5-8 critically-eroding areas;
5-9 (11) contracting with any state university or agency
5-10 to effectuate the purposes of this subchapter;
5-11 (12) post-storm management planning and response, and
5-12 restoration and redevelopment of the Texas coast following an
5-13 emergency; and
5-14 (13) performing all other acts authorized in this
5-15 subchapter.
5-16 (b) The commissioner's decision to fund an erosion response
5-17 activity or grant under this subchapter shall take into account
5-18 existing and proposed erosion response activities within the
5-19 coastal zone, impacts on public and private property, costs, needs
5-20 in other critically eroding areas, fund resources, and any other
5-21 factor relevant to the success of the proposed activity.
5-22 Sec. 33.606. REPORT TO LEGISLATURE. At least once each
5-23 biennium, the commissioner shall prepare a coastal erosion planning
5-24 and response report addressed to the legislature which lists
5-25 critically-eroding areas, proposed erosion response activities,
5-26 estimated funding required for each proposed activity, all erosion
5-27 response activities funded pursuant to this subchapter since the
6-1 previous report was issued, the financial status of the fund, and
6-2 the amount of funding needed to carry out the purposes of this
6-3 subchapter over the next biennium.
6-4 Sec. 33.607. GRANTS TO LOCAL GOVERNMENTS. (a) A local
6-5 government may apply for a grant to fund erosion response
6-6 activities by submitting the following information to the
6-7 commissioner, if applicable:
6-8 (1) a brief description of the proposed erosion
6-9 response activity, and the estimated dates for commencement and
6-10 completion;
6-11 (2) estimated costs, including post-project
6-12 maintenance and monitoring costs, and the source of all local
6-13 government funding;
6-14 (3) a scientific evaluation of the extent of erosion
6-15 and an analysis of the degree of threat to public health and
6-16 safety, public beach use and access, public and private property,
6-17 areas of state or national importance, or natural resources;
6-18 (4) a scientific evaluation of the prospect for
6-19 long-term success of the proposed erosion response activity;
6-20 (5) the anticipated downdrift impact of the proposed
6-21 activity on property located outside of the project area;
6-22 (6) a summary of the long-term plan for monitoring and
6-23 maintenance of the proposed activity, including plans for
6-24 post-storm or emergency monitoring and maintenance;
6-25 (7) the availability and proximity of an adequate
6-26 source of beach quality sand, and the quality of sand to be used;
6-27 (8) the anticipated impacts to the area from which
7-1 sand is mined, including, but not limited to, updrift and
7-2 downdrift;
7-3 (9) the amount of the requested grant;
7-4 (10) a showing of the extent of commitment of local
7-5 government resources and financial need; and
7-6 (11) any other information the commissioner deems
7-7 necessary to fully evaluate the grant application.
7-8 (b) A local government may use a grant from the fund as a
7-9 match in seeking other funding. If a local government uses a grant
7-10 from the fund as a match in seeking other funding and is later
7-11 reimbursed by any other source, including a governmental entity,
7-12 the local government shall immediately reimburse the fund the
7-13 amount received up to, and including, the amount of the original
7-14 grant.
7-15 (c) The commissioner may establish a cost share requirement
7-16 for any proposed project or grant.
7-17 Sec. 33.608. GRANT APPROVAL. The commissioner may approve,
7-18 disapprove, or conditionally approve any grant application. For
7-19 each grant application, the commissioner shall:
7-20 (1) determine whether the grant application is
7-21 approved, disapproved, or conditionally approved, and notify the
7-22 applicant of his determination;
7-23 (2) specify all grant conditions, including, but not
7-24 limited to, deadlines for activities to be funded by the grant,
7-25 deadlines for commencement and completion, post-activity monitoring
7-26 requirements, and performance and filing of the survey required
7-27 under Section 33.609 of this subchapter, and notify the applicant
8-1 of his determination; and
8-2 (3) specify any cost share requirement.
8-3 Sec. 33.609. SURVEY REQUIREMENT. (a) Notwithstanding any
8-4 law to the contrary, no action relating to erosion response, as
8-5 defined in this subchapter, which will cause, or contribute to
8-6 shoreline alteration, shall be undertaken within the coastal zone
8-7 prior to conducting and filing a coastal boundary survey in the
8-8 same manner as the survey of public land required in Chapter 21 of
8-9 this code, and all applicable rules adopted by the commissioner,
8-10 and obtaining any required lease, easement or other instrument from
8-11 the commissioner or School Land Board, as applicable. Upon the
8-12 filing of the survey, the shoreline depicted on the survey shall
8-13 become, and remain, a fixed line for the purpose of locating a
8-14 shoreline boundary, subject to movement landward of such line. A
8-15 coastal boundary survey conducted under this section shall not be
8-16 filed until notice of approval is given by the commissioner under
8-17 Subsection (c) of this section.
8-18 (b) The survey shall contain the following statement:
8-19 NOTICE: This survey was performed in accordance with Section
8-20 33.609, Natural Resources Code, for the purpose of evidencing the
8-21 location of the shoreline in the area depicted hereon prior to the
8-22 commencement of an erosion response activity in the coastal zone,
8-23 as required by Chapter 33, Natural Resources Code. If a lease,
8-24 easement or other instrument was issued by the commissioner or
8-25 School Land Board in connection with the erosion response activity,
8-26 the line depicted hereon shall fix the shoreline for the purpose of
8-27 locating a shoreline boundary, subject to movement landward as
9-1 provided in Section 33.609, Natural Resources Code.
9-2 (c) Within 30 days after the date the commissioner approves
9-3 a coastal boundary survey under this section, the commissioner
9-4 shall provide notice of his approval, by:
9-5 (1) publication in the Texas Register;
9-6 (2) publication for two consecutive weeks in a
9-7 newspaper of general circulation in the county or counties in which
9-8 the land depicted on the survey is located; and
9-9 (3) filing a copy of his decision in the Archives and
9-10 Records Division of the Land office.
9-11 Sec. 33.610. LANDOWNER CONSENT. (a) Except as provided in
9-12 subsection (c) of this section, no state agency or local government
9-13 may:
9-14 (1) undertake erosion response activity on private
9-15 property without first obtaining the prior written consent of the
9-16 owner of the property; or
9-17 (2) undertake erosion response activity on Permanent
9-18 School Fund land without first obtaining the prior written consent
9-19 of the School Land Board.
9-20 (b) Upon receipt of consent required under subsection (a) of
9-21 this section, the commissioner may enter onto the property and
9-22 undertake any erosion response activity authorized under this
9-23 subchapter.
9-24 (c) Subject to the provisions of Section 33.609 of this
9-25 subchapter, consent to undertake erosion response activity under
9-26 this subchapter is not required on the public beach.
9-27 Sec. 33.611. ACTION OR APPROVAL BY STATE. The state, the
10-1 commissioner, and Land office staff shall be immune from suit and
10-2 from liability for any act or omission related to the following:
10-3 (1) approval, disapproval, funding, or performance of
10-4 any erosion response activity;
10-5 (2) failure of any erosion response activity
10-6 undertaken by the commissioner under this subchapter to fulfill its
10-7 intended purpose;
10-8 (3) promulgation, approval, disapproval, funding, or
10-9 performance of a survey, erosion response project, or erosion
10-10 response activity undertaken in fiscal year 1996 or 1997; or
10-11 (4) any matter related to erosion response by the
10-12 commissioner provided for in this subchapter.
10-13 Sec. 33.612. JUDICIAL REVIEW. (a) The standard for
10-14 judicial review of rights affected by any action of the state, the
10-15 commissioner or Land office staff under this subchapter shall be
10-16 based on substantial evidence. In order to prevail, a person
10-17 seeking review shall prove that the action complained of was
10-18 arbitrary, capricious, or not otherwise in accordance with law.
10-19 (b) Venue for any action relating to this subchapter shall
10-20 be in Travis County, Texas.
10-21 Sec. 33.613. PROOF OF CLAIM. Any person who claims title to
10-22 Permanent School Fund land as a result of accretion, reliction, or
10-23 avulsion within the coastal zone after the effective date of this
10-24 Act shall, in order to prevail in his claim, prove that:
10-25 (1) a change in the shoreline has occurred;
10-26 (2) the change did not occur as a result of the
10-27 claimant's actions, the action of any predecessor in title, the
11-1 action of any grantee, assignee, licensee, or person authorized by
11-2 him to use his land, or an erosion response activity; and
11-3 (3) the claimant is entitled to benefit from the
11-4 change.
11-5 Sec. 33.614. CORRECTION OF TAX ROLLS. (a) Upon receipt of
11-6 the information required under subsection (b) of this section, the
11-7 commissioner will inform the local appraisal district and
11-8 identified taxing entities that property currently listed on local
11-9 tax rolls is now owned by the Permanent School Fund due to erosion.
11-10 Upon receipt of notice from the commissioner the district or taxing
11-11 entity shall remove the property from the tax rolls.
11-12 (b) The commissioner shall take the action described in
11-13 subsection (a) upon receipt of the following:
11-14 (1) a written request by the current landowner for
11-15 assistance under this section;
11-16 (2) a legal description of the property owned by the
11-17 landowner as it is identified on current tax rolls;
11-18 (3) a copy of the vesting deed or other instrument
11-19 conveying title to the property to the current landowner;
11-20 (4) a map or other document accurately depicting the
11-21 property and the portion thereof which has become submerged due to
11-22 erosion;
11-23 (5) a written declaration, signed by the landowner and
11-24 acknowledged by a Notary Public, declaring that the property, or a
11-25 portion thereof, as identified on the map required under (4) of
11-26 this subsection, is no longer owned by the landowner due to erosion
11-27 and that ownership is vested in the Permanent School Fund; and
12-1 (6) the name and address of the local appraisal
12-2 district and each taxing entity to be notified of Permanent School
12-3 Fund ownership and the tax parcel number of the property.
12-4 SECTION 3. The importance of this legislation and the
12-5 crowded condition of the calendars in both houses create an
12-6 emergency and an imperative public necessity that the
12-7 constitutional rule requiring bills to be read on three several
12-8 days in each house be suspended, and this rule is hereby suspended,
12-9 and that this Act take effect and be in force from and after its
12-10 passage, and it is so enacted.