By: Patterson S.B. No. 1339
97S0762/TYPE
A BILL TO BE ENTITLED
AN ACT
1-1 relating to coastal erosion; including the power of eminent domain.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subchapter H, Chapter 33, Natural Resources Code,
1-4 is repealed.
1-5 SECTION 2. Chapter 33, Natural Resources Code, is amended by
1-6 adding Subchapter H to read as follows:
1-7 SUBCHAPTER H. COASTAL EROSION
1-8 Sec. 33.601. SHORT TITLE. This subchapter may be known and
1-9 cited as the "Coastal Erosion Planning and Response Act."
1-10 Sec. 33.602. DEFINITIONS. In this subchapter:
1-11 (1) "Coastal zone" means coastal territory delineated
1-12 by the boundary established under Section 33.2053(k).
1-13 (2) "Critically eroding area" means an area within the
1-14 coastal zone which is experiencing a historical erosion rate, as
1-15 identified by the most recently published data of the Bureau of
1-16 Economic Geology of The University of Texas, that the commissioner
1-17 considers a threat to public health, safety, or welfare, public
1-18 infrastructure, areas of national importance, public beach access
1-19 and recreation, traffic safety, private property, or fish and
1-20 wildlife habitat.
1-21 (3) "Emergency" means any unusual incident resulting
1-22 from natural causes which the commissioner determines may endanger
1-23 the health, safety, or resources of the residents of the state,
2-1 including damage to or erosion of any public beach resulting from a
2-2 hurricane or major storm.
2-3 (4) "Erosion response" means an action intended to
2-4 address coastal erosion, mitigate the effect of coastal erosion, or
2-5 maintain or enhance beach stability or width, including beach
2-6 nourishment, sediment management, beneficial use of dredged
2-7 material, construction of breakwaters, dune creation or
2-8 enhancement, revegetation, or any other actions or methods the
2-9 commissioner determines appropriate to address erosion or the
2-10 effects of coastal erosion. Erosion response shall not mean or
2-11 refer to construction of a breakwater or bulkhead landward of the
2-12 shoreline depicted on a current coastal boundary survey conducted
2-13 under Section 33.609.
2-14 (5) "Fund" means the coastal erosion response fund
2-15 created in Section 33.604.
2-16 (6) "Local government" means a political subdivision
2-17 of the state located within the coastal zone.
2-18 (7) "Public beach" means a public beach as defined
2-19 under Section 61.013.
2-20 Sec. 33.603. COASTAL EROSION PLANNING AND RESPONSE
2-21 AUTHORITY. (a) Contingent upon legislative appropriation for
2-22 coastal erosion planning and response, the commissioner is
2-23 authorized to carry out any erosion response activity described in
2-24 Section 33.605, including but not limited to performance of
2-25 specific projects designed to inhibit or remediate the effects of
3-1 coastal erosion.
3-2 (b) The commissioner may promulgate rules for erosion
3-3 response within the coastal zone.
3-4 (c) The commissioner may issue grants from the fund to local
3-5 governments to carry out erosion response activities under this
3-6 subchapter.
3-7 (d) The commissioner may enter onto property within the
3-8 coastal zone in order to perform a survey required under Section
3-9 33.609.
3-10 (e) The commissioner shall develop a program to increase
3-11 public awareness through public education concerning the causes of
3-12 erosion, the consequences of erosion, the importance of barrier
3-13 islands, dunes, and bays as a natural defense against storms and
3-14 hurricanes, and erosion response techniques.
3-15 (f) Activity undertaken by the commissioner under this
3-16 subchapter shall not impair littoral rights. Any upland owner who,
3-17 due to erosion response activity undertaken by the commissioner,
3-18 ceases to hold title to land which extends to the shoreline, as
3-19 altered by the erosion response activity, shall be entitled to
3-20 continue to exercise all littoral rights possessed by that owner
3-21 prior to the date the activity commenced, including but not limited
3-22 to rights of ingress, egress, boating, bathing, and fishing.
3-23 Sec. 33.604. CREATION OF COASTAL EROSION RESPONSE FUND. The
3-24 coastal erosion response fund is established in the state treasury
3-25 to be used by the commissioner to carry out the purposes of this
4-1 subchapter. The fund shall be credited all money appropriated for
4-2 the purposes of this subchapter and all other funds received by the
4-3 commissioner from federal, state, local government, private, and
4-4 other sources for the purpose of erosion response.
4-5 Sec. 33.605. ELIGIBLE USES OF THE FUND. (a) Money in the
4-6 fund may be used for the following purposes:
4-7 (1) performing research, study, and identification of
4-8 critically eroding areas and other information necessary to carry
4-9 out the purposes of this subchapter, including the causes of
4-10 erosion, the location of sand sources for beach nourishment, and
4-11 the performance of sediment quality tests;
4-12 (2) planning and designing erosion response projects;
4-13 (3) performing construction, installation, and
4-14 maintenance of erosion response projects, including costs for
4-15 supervision, inspection, project management, and other activities
4-16 essential to successful project completion;
4-17 (4) performing preproject and postproject land surveys
4-18 and studies designed to inspect and monitor project performance,
4-19 shoreline change, natural resource impacts, and such other factors
4-20 deemed appropriate by the commissioner;
4-21 (5) obtaining permits, easements, rights-of-way,
4-22 rights-of-entry, and other authorizations necessary for successful
4-23 completion of erosion response activities;
4-24 (6) removing obstacles, impediments, or encroachments
4-25 from public beaches which interfere with free and unrestricted
5-1 public beach use, access, and enjoyment;
5-2 (7) responding to emergency conditions;
5-3 (8) funding grants to local governments for erosion
5-4 response;
5-5 (9) participating in federal erosion response
5-6 projects;
5-7 (10) identifying short-term and long-term economic
5-8 costs and benefits of maintaining and improving beaches and other
5-9 critically eroding areas;
5-10 (11) contracting with any state university or agency
5-11 to effectuate the purposes of this subchapter;
5-12 (12) performing poststorm management planning and
5-13 response and restoration and redevelopment of the Texas coast
5-14 following an emergency; and
5-15 (13) performing all other acts authorized in this
5-16 subchapter.
5-17 (b) The commissioner's decision to fund an erosion response
5-18 activity or grant under this subchapter shall take into account
5-19 existing and proposed erosion response activities within the
5-20 coastal zone, impacts on public and private property, costs, needs
5-21 in other critically eroding areas, fund resources, and any other
5-22 factor relevant to the success of the proposed activity.
5-23 Sec. 33.606. REPORT TO LEGISLATURE. At least once each
5-24 biennium, the commissioner shall prepare a coastal erosion planning
5-25 and response report addressed to the legislature which lists
6-1 critically eroding areas, proposed erosion response activities,
6-2 estimated funding required for each proposed activity, all erosion
6-3 response activities funded pursuant to this subchapter since the
6-4 previous report was issued, the financial status of the fund, and
6-5 the amount of funding needed to carry out the purposes of this
6-6 subchapter over the next biennium.
6-7 Sec. 33.607. GRANTS TO LOCAL GOVERNMENTS. (a) A local
6-8 government may apply for a grant to fund erosion response
6-9 activities by submitting the following information to the
6-10 commissioner, if applicable:
6-11 (1) a brief description of the proposed erosion
6-12 response activity and the estimated dates for commencement and
6-13 completion;
6-14 (2) estimated costs, including postproject maintenance
6-15 and monitoring costs, and the source of all local government
6-16 funding;
6-17 (3) a scientific evaluation of the extent of erosion
6-18 and an analysis of the degree of threat to public health and
6-19 safety, public beach use and access, public and private property,
6-20 areas of state or national importance, or natural resources;
6-21 (4) a scientific evaluation of the prospect for
6-22 long-term success of the proposed erosion response activity;
6-23 (5) the anticipated downdrift impact of the proposed
6-24 activity on property located outside the project area;
6-25 (6) a summary of the long-term plan for monitoring and
7-1 maintenance of the proposed activity, including plans for poststorm
7-2 or emergency monitoring and maintenance;
7-3 (7) the availability and proximity of an adequate
7-4 source of beach-quality sand and the quality of sand to be used;
7-5 (8) the anticipated impacts to the area from which
7-6 sand is mined, including but not limited to updrift and downdrift;
7-7 (9) the amount of the requested grant;
7-8 (10) a showing of the extent of commitment of local
7-9 government resources and financial need; and
7-10 (11) any other information the commissioner deems
7-11 necessary to fully evaluate the grant application.
7-12 (b) A local government may use a grant from the fund as a
7-13 match in seeking other funding. If a local government uses a grant
7-14 from the fund as a match in seeking other funding and is later
7-15 reimbursed by any other source, including a governmental entity,
7-16 the local government shall immediately reimburse the fund the
7-17 amount received up to and including the amount of the original
7-18 grant.
7-19 (c) The commissioner may establish a cost-share requirement
7-20 for any proposed project or grant.
7-21 Sec. 33.608. GRANT APPROVAL. The commissioner may approve,
7-22 disapprove, or conditionally approve any grant application. For
7-23 each grant application, the commissioner shall:
7-24 (1) determine whether the grant application is
7-25 approved, disapproved, or conditionally approved and notify the
8-1 applicant of the commissioner's determination;
8-2 (2) specify all grant conditions, including but not
8-3 limited to deadlines for activities to be funded by the grant,
8-4 deadlines for commencement and completion, postactivity monitoring
8-5 requirements, and performance and filing of the survey required
8-6 under Section 33.609, and notify the applicant of his
8-7 determination; and
8-8 (3) specify any cost-share requirement.
8-9 Sec. 33.609. SURVEY REQUIREMENT. (a) Notwithstanding any
8-10 law to the contrary, no action relating to erosion response, as
8-11 defined in this subchapter, which will cause or contribute to
8-12 shoreline alteration shall be undertaken within the coastal zone
8-13 prior to conducting and filing a coastal boundary survey in the
8-14 same manner as the survey of public land required in Chapter 21 and
8-15 all applicable rules adopted by the commissioner and obtaining any
8-16 required lease, easement, or other instrument from the commissioner
8-17 or board, as applicable. On the filing of the survey, the
8-18 shoreline depicted on the survey shall become and remain a fixed
8-19 line for the purpose of locating a shoreline boundary, subject to
8-20 movement landward of such line. A coastal boundary survey
8-21 conducted under this section shall not be filed until notice of
8-22 approval is given by the commissioner under Subsection (c).
8-23 (b) The survey shall contain the following statement:
8-24 "NOTICE: This survey was performed in accordance with Section
8-25 33.609, Natural Resources Code, for the purpose of evidencing the
9-1 location of the shoreline in the area depicted hereon prior to the
9-2 commencement of an erosion response activity in the coastal zone,
9-3 as required by Chapter 33, Natural Resources Code. If a lease,
9-4 easement, or other instrument was issued by the Commissioner of the
9-5 General Land Office or School Land Board in connection with the
9-6 erosion response activity, the line depicted hereon shall fix the
9-7 shoreline for the purpose of locating a shoreline boundary, subject
9-8 to movement landward as provided in Section 33.609, Natural
9-9 Resources Code."
9-10 (c) Within 30 days after the date the commissioner approves
9-11 a coastal boundary survey under this section, the commissioner
9-12 shall provide notice of his approval by:
9-13 (1) publication in the Texas Register;
9-14 (2) publication for two consecutive weeks in a
9-15 newspaper of general circulation in the county or counties in which
9-16 the land depicted on the survey is located; and
9-17 (3) filing a copy of his decision in the Archives and
9-18 Records Division of the General Land Office.
9-19 Sec. 33.610. LANDOWNER CONSENT. (a) Except as provided in
9-20 Subsection (c), no state agency or local government may:
9-21 (1) undertake erosion response activity on private
9-22 property without first obtaining the prior written consent of the
9-23 owner of the property; or
9-24 (2) undertake erosion response activity on permanent
9-25 school fund land without first obtaining the prior written consent
10-1 of the board.
10-2 (b) On receipt of consent required under Subsection (a), the
10-3 commissioner may enter onto the property and undertake any erosion
10-4 response activity authorized under this subchapter.
10-5 (c) Subject to the provisions of Section 33.609, consent to
10-6 undertake erosion response activity under this subchapter is not
10-7 required on a public beach.
10-8 Sec. 33.611. ACTION OR APPROVAL BY STATE. The state, the
10-9 commissioner, and land office staff shall be immune from suit and
10-10 from liability for any act or omission related to the following:
10-11 (1) approval, disapproval, funding, or performance of
10-12 any erosion response activity;
10-13 (2) failure of any erosion response activity
10-14 undertaken by the commissioner under this subchapter to fulfill its
10-15 intended purpose;
10-16 (3) promulgation, approval, disapproval, funding, or
10-17 performance of a survey, erosion response project, or erosion
10-18 response activity undertaken in fiscal year 1996 or 1997; or
10-19 (4) any matter related to erosion response by the
10-20 commissioner provided for in this subchapter.
10-21 Sec. 33.612. JUDICIAL REVIEW. (a) The standard for
10-22 judicial review of rights affected by any action of the state, the
10-23 commissioner, or land office staff under this subchapter shall be
10-24 based on substantial evidence. In order to prevail, a person
10-25 seeking review shall prove that the action complained of was
11-1 arbitrary, capricious, or not otherwise in accordance with law.
11-2 (b) Venue for any action relating to this subchapter shall
11-3 be in Travis County, Texas.
11-4 Sec. 33.613. PROOF OF CLAIM. Any person who claims title to
11-5 permanent school fund land as a result of accretion, reliction, or
11-6 avulsion within the coastal zone after the effective date of this
11-7 subchapter shall, in order to prevail in the person's claim, prove
11-8 that:
11-9 (1) a change in the shoreline has occurred;
11-10 (2) the change did not occur as a result of the
11-11 claimant's actions, the action of any predecessor in title, the
11-12 action of any grantee, assignee, licensee, or person authorized by
11-13 the claimant to use the claimant's land, or an erosion response
11-14 activity; and
11-15 (3) the claimant is entitled to benefit from the
11-16 change.
11-17 Sec. 33.614. CORRECTION OF TAX ROLLS. (a) On receipt of
11-18 the information required under Subsection (b), the commissioner
11-19 will inform the local appraisal district and identified taxing
11-20 entities that property currently listed on local tax rolls is now
11-21 owned by the permanent school fund due to erosion. On receipt of
11-22 notice from the commissioner the district or taxing entity shall
11-23 remove the property from the tax rolls.
11-24 (b) The commissioner shall take the action described in
11-25 Subsection (a) on receipt of the following:
12-1 (1) a written request by the current landowner for
12-2 assistance under this section;
12-3 (2) a legal description of the property owned by the
12-4 landowner as it is identified on current tax rolls;
12-5 (3) a copy of the vesting deed or other instrument
12-6 conveying title to the property to the current landowner;
12-7 (4) a map or other document accurately depicting the
12-8 property and the portion thereof which has become submerged due to
12-9 erosion;
12-10 (5) a written declaration, signed by the landowner and
12-11 acknowledged by a notary public, declaring that the property or a
12-12 portion thereof, as identified on the map required under
12-13 Subdivision (4), is no longer owned by the landowner due to erosion
12-14 and that ownership is vested in the permanent school fund; and
12-15 (6) the name and address of the local appraisal
12-16 district and each taxing entity to be notified of permanent school
12-17 fund ownership and the tax parcel number of the property.
12-18 SECTION 3. The importance of this legislation and the
12-19 crowded condition of the calendars in both houses create an
12-20 emergency and an imperative public necessity that the
12-21 constitutional rule requiring bills to be read on three several
12-22 days in each house be suspended, and this rule is hereby suspended,
12-23 and that this Act take effect and be in force from and after its
12-24 passage, and it is so enacted.