1-1 By: Patterson S.B. No. 1339
1-2 (In the Senate - Filed March 13, 1997; March 18, 1997, read
1-3 first time and referred to Committee on Natural Resources;
1-4 May 1, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; May 1, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1339 By: Wentworth
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to coastal erosion.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subchapter H, Chapter 33, Natural Resources Code,
1-13 is amended to read as follows:
1-14 SUBCHAPTER H. COASTAL EROSION
1-15 Sec. 33.601. SHORT TITLE [Coastal Erosion Duties and
1-16 Authority]. This subchapter may be known and cited as the "Coastal
1-17 Erosion Planning and Response Act." [(a) The land office shall
1-18 act as the lead agency for the coordination of coastal erosion
1-19 avoidance, remediation, and planning. The commissioner shall
1-20 ensure that erosion avoidance, remediation, and planning protect
1-21 the common law rights of the public in public beaches as affirmed
1-22 by Subchapter B, Chapter 61 of this code.]
1-23 [(b) The commissioner shall, in coordination with state and
1-24 federal agencies and local governments, promulgate rules,
1-25 recommendations, standards, and guidelines for erosion avoidance
1-26 and remediation and for prioritizing critical coastal erosion
1-27 areas. The commissioner shall identify critical coastal erosion
1-28 areas and establish recommendations, standards, and guidelines for
1-29 coastal erosion avoidance and remediation in those areas.]
1-30 Sec. 33.602. DEFINITIONS [COASTAL EROSION PROJECTS]. In
1-31 this subchapter:
1-32 (1) "Coastal zone" means coastal territory delineated
1-33 by the boundary established under Section 33.2053(k).
1-34 (2) "Critically eroding area" means an area in the
1-35 coastal zone that is experiencing a historical erosion rate, as
1-36 identified by the most recently published data of the Bureau of
1-37 Economic Geology of The University of Texas at Austin, that the
1-38 commissioner considers a threat to public health, safety, or
1-39 welfare, public infrastructure, areas of national importance,
1-40 public beach access and recreation, traffic safety, private
1-41 property, or fish and wildlife habitat.
1-42 (3) "Emergency" means an unusual incident resulting
1-43 from natural causes that the commissioner determines may endanger
1-44 the health, safety, or resources of the residents of the state,
1-45 including damage to or erosion of a public beach resulting from a
1-46 hurricane or major storm.
1-47 (4) "Erosion response" means an action intended to
1-48 address coastal erosion, mitigate the effect of coastal erosion, or
1-49 maintain or enhance beach stability or width, including beach
1-50 nourishment, sediment management, beneficial use of dredged
1-51 material, construction of breakwaters, dune creation or
1-52 enhancement, revegetation, or other action or method the
1-53 commissioner determines appropriate to address erosion or the
1-54 effect of coastal erosion. The term does not include construction
1-55 of a breakwater or bulkhead landward of the shoreline depicted on a
1-56 coastal boundary survey conducted under Section 33.609.
1-57 (5) "Fund" means the coastal erosion response fund
1-58 created under Section 33.604.
1-59 (6) "Local government" means a political subdivision
1-60 of the state.
1-61 (7) "Public beach" has the meaning assigned by Section
1-62 61.013 [(a) The land office shall engage in erosion demonstration
1-63 projects and studies in conjunction with other state agencies,
1-64 local governments, and federal agencies, including the United
2-1 States Army Corps of Engineers.]
2-2 [(b) Such projects and studies shall address the
2-3 feasibility, cost, and financing of different methods of avoiding,
2-4 slowing, or remedying coastal erosion, including but not limited to
2-5 the following:]
2-6 [(1) selective placement and stockpiling of
2-7 beach-quality dredged material where appropriate to replenish
2-8 eroded beach, bay, and dune areas;]
2-9 [(2) guidelines on grain size and toxicity level;]
2-10 [(3) establishment of beach nourishment projects as a
2-11 method of flood control;]
2-12 [(4) promoting the protection, revegetation, and
2-13 restoration of dunes;]
2-14 [(5) the planting of vegetation as a means of
2-15 inhibiting bayshore erosion and projects developing and cultivating
2-16 disease-resistant vegetation adapted to local conditions;]
2-17 [(6) decreasing the current deficiency in the sand
2-18 budget;]
2-19 [(7) the feasibility of constructing new dams,
2-20 jetties, groins, and other impoundment structures with sediment
2-21 bypassing systems;]
2-22 [(8) the feasibility of retrofitting existing
2-23 impoundment structures to allow sediment bypassing;]
2-24 [(9) estimating the quantity and quality of sediment
2-25 trapped by reservoirs and identification of the sediment sources;]
2-26 [(10) decreasing and eliminating human-induced
2-27 subsidence by means including, but not limited to, evaluating the
2-28 consequences of limiting groundwater withdrawals and maintaining
2-29 adequate pressure in hydrocarbon reservoirs, consistent with proper
2-30 petroleum reservoir engineering principles and applicable
2-31 regulatory requirements; and]
2-32 [(11) giving preference to and encouraging "soft"
2-33 methods of avoiding, slowing, or remedying erosion in lieu of
2-34 erecting hard or rigid shorefront structures].
2-35 Sec. 33.603. COASTAL EROSION PLANNING AND RESPONSE AUTHORITY
2-36 [GRANTS AND GIFTS]. (a) Contingent on legislative appropriation
2-37 for coastal erosion planning and response, the commissioner may
2-38 carry out any erosion response activity described in Section
2-39 33.605, including specific projects designed to inhibit or
2-40 remediate the effects of coastal erosion.
2-41 (b) The commissioner may adopt rules for erosion response in
2-42 the coastal zone.
2-43 (c) The commissioner may award grants from the fund to local
2-44 governments to carry out erosion response activities under this
2-45 subchapter.
2-46 (d) The commissioner may enter property in the coastal zone
2-47 in order to perform a survey required under Section 33.609.
2-48 (e) The commissioner shall develop a program to increase
2-49 public awareness through public education about the causes of
2-50 erosion, the consequences of erosion, the importance of barrier
2-51 islands, dunes, and bays as a natural defense against storms and
2-52 hurricanes, and erosion response techniques.
2-53 (f) An activity undertaken by the commissioner under this
2-54 subchapter does not impair littoral rights. An upland owner who,
2-55 because of erosion response activity undertaken by the
2-56 commissioner, ceases to hold title to land that extends to the
2-57 shoreline as altered by the erosion response is entitled to
2-58 continue to exercise all littoral rights possessed by that owner
2-59 before the date the erosion response commenced, including rights of
2-60 ingress, egress, boating, bathing, and fishing [The commissioner
2-61 may apply for, request, solicit, contract for, receive, and accept
2-62 gifts, grants, donations, and other assistance from any source to
2-63 carry out the powers and duties provided by this subchapter].
2-64 Sec. 33.604. COASTAL EROSION RESPONSE FUND [COASTAL EROSION
2-65 PUBLIC AWARENESS AND EDUCATION]. The coastal erosion response fund
2-66 is established in the state treasury to be used by the commissioner
2-67 to carry out the purposes of this subchapter. The fund consists of
2-68 all money appropriated for the purposes of this subchapter and all
2-69 money received by the commissioner from any other source for the
3-1 purpose of erosion response [(a) The land office shall be
3-2 responsible for and shall coordinate with other agencies to
3-3 increase public awareness through public education concerning the
3-4 causes of erosion; the consequences of erosion; the importance of
3-5 barrier islands, dunes, and bays as a natural defense against
3-6 storms and hurricanes; and erosion avoidance techniques.]
3-7 [(b) The commissioner, in cooperation with the University of
3-8 Texas Bureau of Economic Geology and local county and municipal
3-9 governments for each coastal county, shall jointly quantify the
3-10 erosion rates at each location along the shore of the Gulf of
3-11 Mexico, prepare a plan for establishing and implementing a building
3-12 set-back line that will accommodate a 50-year shoreline retreat,
3-13 and report back to the legislature with recommendations].
3-14 Sec. 33.605. USES OF THE FUND. (a) Money in the fund may
3-15 be used for:
3-16 (1) research, study, and identification of critically
3-17 eroding areas, the accumulation of other information necessary to
3-18 carry out the purposes of this subchapter, including information on
3-19 the causes of erosion and the location of sand sources for beach
3-20 nourishment, and the performance of sediment quality tests;
3-21 (2) planning and designing erosion response projects;
3-22 (3) construction, installation, and maintenance of
3-23 erosion response projects, including costs for supervision,
3-24 inspection, project management, and other activities essential to
3-25 successful project completion;
3-26 (4) preproject and postproject land surveys and
3-27 studies designed to inspect and monitor project performance,
3-28 shoreline change, impacts on natural resources, and other factors
3-29 the commissioner considers appropriate;
3-30 (5) obtaining a permit, easement, right-of-way,
3-31 right-of-entry, or other authorization necessary for successful
3-32 completion of an erosion response activity;
3-33 (6) removing an obstacle, impediment, or encroachment
3-34 from a public beach that interferes with free and unrestricted
3-35 public beach use, access, and enjoyment;
3-36 (7) responding to an emergency condition;
3-37 (8) funding grants to local governments in the coastal
3-38 zone for erosion response;
3-39 (9) participating in a federal erosion response
3-40 project;
3-41 (10) identifying short-term and long-term economic
3-42 costs and benefits of maintaining and improving beaches and other
3-43 critically eroding areas;
3-44 (11) contracting with a state university or agency to
3-45 effectuate the purposes of this subchapter;
3-46 (12) poststorm management planning and response and
3-47 restoration and redevelopment of the Texas coast after an
3-48 emergency; and
3-49 (13) any other action authorized by this subchapter.
3-50 (b) The commissioner's decision to pay for an erosion
3-51 response activity or award a grant under this subchapter must take
3-52 into account any existing or proposed erosion response activity in
3-53 the coastal zone, the impact on public or private property, cost,
3-54 needs in other critically eroding areas, the amount of money in the
3-55 fund, and any other factor relevant to the success of the proposed
3-56 activity.
3-57 Sec. 33.606. REPORT TO LEGISLATURE. At least once each
3-58 biennium, the commissioner shall submit to the legislature a
3-59 coastal erosion planning and response report that lists critically
3-60 eroding areas, proposed erosion response activities, estimated
3-61 funding required for each proposed activity, all erosion response
3-62 activities funded under this subchapter since the previous report,
3-63 the financial status of the fund, and the amount of money needed to
3-64 carry out the purposes of this subchapter over the next biennium.
3-65 Sec. 33.607. GRANTS TO LOCAL GOVERNMENTS. (a) A local
3-66 government in the coastal zone may apply to the commissioner for a
3-67 grant to pay for erosion response activities. An application, to
3-68 the extent applicable, must:
3-69 (1) briefly describe the proposed erosion response
4-1 activity and estimate the dates for commencement and completion;
4-2 (2) estimate the costs, including postproject
4-3 maintenance and monitoring costs, and identify the source of any
4-4 local government funding;
4-5 (3) evaluate scientifically the extent of erosion and
4-6 analyze the degree of threat to public health and safety, public
4-7 beach use and access, public and private property, areas of state
4-8 or national importance, or natural resources;
4-9 (4) evaluate scientifically the prospect for long-term
4-10 success of the proposed erosion response activity;
4-11 (5) describe the anticipated downdrift impact of the
4-12 proposed activity on property located outside the project area;
4-13 (6) summarize the long-term plan for monitoring and
4-14 maintenance of the proposed activity, including plans for poststorm
4-15 or emergency monitoring and maintenance;
4-16 (7) describe the availability and proximity of an
4-17 adequate source of beach-quality sand and the quality of sand to be
4-18 used;
4-19 (8) describe the anticipated impacts to the area from
4-20 which sand is mined, including updrift and downdrift;
4-21 (9) state the amount of the requested grant;
4-22 (10) describe the extent of commitment of local
4-23 government resources and financial need; and
4-24 (11) include any other information the commissioner
4-25 considers necessary to fully evaluate the grant application.
4-26 (b) A local government may use a grant from the fund as a
4-27 match in seeking other funding. If a local government uses a grant
4-28 from the fund as a match in seeking other funding and is later
4-29 reimbursed by another source, including another governmental
4-30 entity, the local government shall immediately reimburse the fund
4-31 the amount received, up to and including the amount of the original
4-32 grant.
4-33 (c) The commissioner may establish a cost-share requirement
4-34 for any proposed project or grant.
4-35 Sec. 33.608. GRANT APPROVAL. The commissioner may approve,
4-36 disapprove, or conditionally approve any grant application
4-37 submitted under Section 33.607. For each grant application, the
4-38 commissioner shall:
4-39 (1) determine whether the grant application is
4-40 approved, disapproved, or conditionally approved and shall notify
4-41 the applicant of the commissioner's determination;
4-42 (2) specify any grant condition, including any
4-43 deadline for an activity to be funded by the grant, any deadline
4-44 for commencement and completion, postactivity monitoring
4-45 requirements, and performance and filing of the survey required
4-46 under Section 33.609, and shall notify the applicant of the
4-47 determination; and
4-48 (3) specify any cost-share requirement.
4-49 Sec. 33.609. SURVEY REQUIREMENT. (a) Notwithstanding any
4-50 law to the contrary, a person may not undertake, in the coastal
4-51 zone, an action relating to erosion response that will cause or
4-52 contribute to shoreline alteration before the person has conducted
4-53 and filed a coastal boundary survey in the same manner as the
4-54 survey of public land required by Chapter 21 and any applicable
4-55 rule of the commissioner and has obtained any required lease,
4-56 easement, or other instrument from the commissioner or board, as
4-57 applicable. On filing of the survey, the shoreline depicted on the
4-58 survey is a fixed line for the purpose of locating a shoreline
4-59 boundary, subject to movement landward of that line. A coastal
4-60 boundary survey conducted under this section may not be filed until
4-61 the commissioner gives notice of approval under Subsection (c).
4-62 (b) The survey must contain the following statement:
4-63 "NOTICE: This survey was performed in accordance with Section
4-64 33.609, Natural Resources Code, for the purpose of evidencing the
4-65 location of the shoreline in the area depicted in this survey as
4-66 that shoreline existed before commencement of erosion response
4-67 activity in the coastal zone, as required by Chapter 33, Natural
4-68 Resources Code. If a lease, easement, or other instrument was
4-69 issued by the Commissioner of the General Land Office or the School
5-1 Land Board in connection with the erosion response activity, the
5-2 line depicted on this survey fixes the shoreline for the purpose of
5-3 locating a shoreline boundary, subject to movement landward as
5-4 provided by Section 33.609, Natural Resources Code."
5-5 (c) Within 30 days after the date the commissioner approves
5-6 a coastal boundary survey under this section, the commissioner
5-7 shall provide notice of that approval by:
5-8 (1) publication in the Texas Register;
5-9 (2) publication for two consecutive weeks in a
5-10 newspaper of general circulation in the county or counties in which
5-11 the land depicted on the survey is located; and
5-12 (3) filing a copy of the approval in the archives and
5-13 records division of the land office.
5-14 Sec. 33.610. LANDOWNER CONSENT. (a) Except as provided by
5-15 Subsection (c), a state agency or local government may not
5-16 undertake erosion response activity on:
5-17 (1) private property without first obtaining the
5-18 written consent of the property owner; or
5-19 (2) permanent school fund land without first obtaining
5-20 the written consent of the board.
5-21 (b) On receipt of consent required under Subsection (a), the
5-22 commissioner may enter the property and undertake any erosion
5-23 response activity authorized under this subchapter.
5-24 (c) Consent to undertake erosion response activity on a
5-25 public beach is not required under this subchapter.
5-26 Sec. 33.611. IMMUNITY. The state, the commissioner, and
5-27 land office staff are immune from suit and from liability for any
5-28 act or omission related to:
5-29 (1) the approval, disapproval, funding, or performance
5-30 of an erosion response activity;
5-31 (2) the failure of an erosion response activity
5-32 undertaken by the commissioner under this subchapter to fulfill its
5-33 intended purpose;
5-34 (3) the adoption, approval, disapproval, funding, or
5-35 performance of a survey, erosion response project, or erosion
5-36 response activity; or
5-37 (4) any matter related to erosion response by the
5-38 commissioner provided for in this subchapter.
5-39 Sec. 33.612. JUDICIAL REVIEW. (a) Judicial review of
5-40 rights affected by an action of the state, the commissioner, or
5-41 land office staff under this subchapter shall be under the
5-42 substantial evidence rule. In order to prevail, a person seeking
5-43 review must prove that the action complained of was arbitrary,
5-44 capricious, or not otherwise in accordance with law.
5-45 (b) Venue for an action relating to this subchapter is in
5-46 Travis County.
5-47 Sec. 33.613. PROOF OF CLAIM. A person who claims title to
5-48 permanent school fund land as a result of accretion, reliction, or
5-49 avulsion in the coastal zone after September 1, 1997, in order to
5-50 prevail in the claim, must prove that:
5-51 (1) a change in the shoreline has occurred;
5-52 (2) the change did not occur as a result of the
5-53 claimant's actions, the action of any predecessor in title, the
5-54 action of any grantee, assignee, licensee, or person authorized by
5-55 the claimant to use the claimant's land, or an erosion response
5-56 activity; and
5-57 (3) the claimant is entitled to benefit from the
5-58 change.
5-59 Sec. 33.614. CORRECTION OF TAX ROLLS. (a) The owner of
5-60 land that has become submerged because of erosion may request the
5-61 commissioner's assistance under this section in removing the
5-62 property from the tax rolls by submitting to the commissioner:
5-63 (1) a written request for assistance under this
5-64 section;
5-65 (2) a legal description of the property owned by the
5-66 landowner as identified on the tax rolls;
5-67 (3) a copy of the vesting deed or other instrument
5-68 conveying title to the property to the landowner;
5-69 (4) a map or other document accurately depicting the
6-1 property and the portion of the property that has become submerged
6-2 because of erosion;
6-3 (5) a written declaration, signed by the landowner and
6-4 acknowledged by a notary public, that the property or a portion of
6-5 the property, as identified on the map required under Subdivision
6-6 (4), is no longer owned by the landowner because of erosion and
6-7 that ownership is vested in the permanent school fund; and
6-8 (6) the name and address of the local appraisal
6-9 district and each taxing entity to be notified of permanent school
6-10 fund ownership and the tax parcel number of the property.
6-11 (b) On receipt of the information required under Subsection
6-12 (a), the commissioner shall inform the local appraisal district and
6-13 identified taxing entities that the property listed on local tax
6-14 rolls and the subject of the request under Subsection (a) is owned
6-15 by the permanent school fund because of erosion.
6-16 (c) On receipt of notice from the commissioner the district
6-17 or taxing entity shall remove the property from the tax rolls.
6-18 SECTION 2. (a) This Act takes effect September 1, 1997.
6-19 (b) Sections 33.609 and 33.610, Natural Resources Code, as
6-20 added by this Act, apply only to erosion response activity
6-21 undertaken on or after September 1, 1997.
6-22 (c) Section 33.611, Natural Resources Code, as added by this
6-23 Act, applies only to a cause of action that accrues on or after
6-24 September 1, 1997. A cause of action that accrued before the
6-25 effective date of this Act is covered by the law as it existed
6-26 immediately before that date, and that law is continued in effect
6-27 for that purpose.
6-28 SECTION 3. The importance of this legislation and the
6-29 crowded condition of the calendars in both houses create an
6-30 emergency and an imperative public necessity that the
6-31 constitutional rule requiring bills to be read on three several
6-32 days in each house be suspended, and this rule is hereby suspended.
6-33 * * * * *