HBA-EVB, NLM C.S.H.B. 2560 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 2560 By: Gray Land & Resource Management 4/23/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE There are 389 miles of Texas coastline, all of which is open to the public as public beach. Currently, there is no permanent fund to help control beach erosion along the Texas coast. Consequently, Texas does not receive federal funding for coastal erosion. C.S.H.B. 2560 creates an erosion fund out of which the land commissioner of the General Land Office may initiate erosion plans and local communities may receive grants to help fight erosion. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority previously delegated to the commissioner of the General Land Office is modified in SECTION 2 (Section 33.602(c), Natural Resources Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Sets forth legislative intent. SECTION 2. Amends Section 33.136(a)-(e), Natural Resources Code, as follows: (a) Prohibits a person from undertaking, notwithstanding any law to the contrary, an action on or immediately landward of a public beach or submerged land, including state mineral lands, rather than on the public beach (as defined in Section 61.001(8), Natural Resources Code), an action relating to erosion response that will cause or contribute to shoreline alteration before the person has conducted and filed a coastal boundary survey in the same manner as the survey of public land required by Chapter 21(Surveys and Field Notes), Natural Resources Code, and any applicable rule of the commissioner of the General Land Office (commissioner), and has obtained any required lease or other instrument from the commissioner or the School Land Board (board), as applicable. Provides that a person is not required to obtain a lease or other instrument from the commissioner or board if the action is confined to land owned by a navigation district or municipality. Provides that, on filing of the survey, the shoreline depicted on the survey is a fixed line for the purpose of locating a shoreline boundary, subject to movement, rather than erosion, landward of that line. (b) Deletes reference in the survey to movement, rather than erosion, landward. (c) Requires the commissioner to provide notice of the approval of a coastal boundary survey, rather than the commissioner's action, within 30 days after the date the commissioner approves a coastal boundary survey, rather than a coastal boundary survey fixing the location of the shoreline, under this section by publication for two consecutive weeks in a newspaper of general circulation in the county or counties in which the land depicted in the survey is located; and filing a copy of the approval, rather than the commissioner's decision, in the archives and records division of the land office. (d) Provides that a person who claims title to permanent school fund land as a result of accretion, reliction, or avulsion in the coastal zone on or after September 1, 1999, must, in order to prevail in the claim, prove that certain enumerated conditions exist. Makes conforming changes by deleting language relating to the public beach in an area where the shoreline was or may have been changed by an action relating to erosion response. (e) Makes a conforming change. SECTION 3. Amends Section 33.203(10), Natural Resources Code, to define "critical erosion area." SECTION 4. Amends Subchapter H, Chapter 33, Natural Resources Code, as follows: SUBCHAPTER H. COASTAL EROSION Sec. 33.601. DEFINITIONS. Defines "account," "beach nourishment," "coastal erosion," "critical coastal erosion area," "erosion response project," "hard structure," "institution of higher education," "local government," "project cooperation agreement," "public beach," "qualified project partner," and "shared project cost." Sec. 33.602. COASTAL EROSION DUTIES AND AUTHORITY. (a) Requires the land office to implement a program, rather than act as the lead agency for the coordination, of coastal erosion avoidance, remediation, and planning. Redesignated from existing Section 33.601. Makes a nonsubstantive change. (b) Requires the commissioner to publish and periodically update a coastal erosion response plan. Requires the commissioner to develop the plan in coordination with state and federal agencies and local governments and provide for public input on the plan. Provides that the plan must, rather than requires the commissioner to, identify critical coastal erosion areas and prioritize coastal erosion response studies and projects, so that benefits are balanced throughout the coast; federal and local financial participation is maximized; studies and projects are scheduled to achieve efficiencies and economies of scale; and the severity of erosion effects in each area is taken into account. Transfers rulemaking authority to Subsection (c). Makes conforming changes. (c) Authorizes the commissioner to adopt rules necessary to implement this subchapter. Sec. 33.603. COASTAL EROSION STUDIES AND PROJECTS. (a) Requires the General Land Office (GLO) to undertake coastal erosion studies, demonstration projects, and response projects if GLO receives legislative appropriations or other funding for that purpose. Requires GLO, if reasonable and appropriate, to work in conjunction with other state agencies, local governments, federal agencies, including the United States Army Corps of Engineers, or other qualified project partners in undertaking those studies and projects. Redesignated from existing Section 33.602. Makes conforming changes. (b) Requires the studies and projects to address enumerated issues. (c) Provides that an agreement between the commissioner and a qualified project partner to undertake a coastal erosion response study or project must require the qualified project partner to pay at least 25 percent of the shared project cost before completion of the project or following completion of the project, in accordance with a schedule provided by the agreement. Authorizes such an agreement to contain other terms governing the study or project. (d) Provides that this chapter does not authorize the construction or funding of a hard structure on or landward of a public beach. Sec. 33.604. COASTAL EROSION RESPONSE ACCOUNT. (a) Authorizes the appropriation of the coastal erosion response account, an account in the general revenue fund, only to the commissioner and authorizes this fund to be used only for the purpose of implementing this subchapter. (b) Provides that the account consists of a specified list of monies and grants. Sec. 33.605. USES OF ACCOUNT. (a) Authorizes the money in the account to be used for any action authorized by this subchapter. (b) Provides that the commissioner must approve an expenditure from the account. Requires the commissioner to consider, in determining whether to approve an expenditure for a study or project: (1) the amount of money in the account; (2) the feasibility and cost-effectiveness of the study or project; (3) the locations of other existing or proposed erosion response projects; (4) the needs in other critical coastal erosion areas; (5) the effect of the study or project on public or private property; and (6) if the site to be studied or project to be conducted will be located within the jurisdiction of a local government subject to Chapter 61 or 63, whether the local government is adequately administering those chapters. Sec. 33.606. GRANTS AND GIFTS. Redesignated from Section 33.603, Natural Resources Code. Sec. 33.607. COASTAL EROSION PUBLIC AWARENESS AND EDUCATION. (a) Makes no change. (b) Requires the commissioner, in consultation with the Bureau of Economic Geology of The University of Texas at Austin and coastal county and municipal governments, on an ongoing basis, to monitor historical erosion rates at each location along the shore of the Gulf of Mexico. Makes conforming changes. (c) Requires the commissioner to make historical erosion data accessible, through the Internet and otherwise, to the public and persons receiving the notice required under Section 61.025 (Disclosure to Purchaser of Property), Natural Resources Code. (d) Encourages a local government subject to Chapter 61 or 63 to use historical erosion data to prepare a plan for reducing public expenditures for erosion and storm damage losses to public and private property, including public beaches, by establishing and implementing a building set-back line that will accommodate a shoreline retreat, rather than a 50-year shoreline retreat. Requires the local government to hold a public educational meeting on the plan before proposing to implement it through the plans, orders, or ordinances provided by Chapters 61 and 63. Redesignated from Section 33.604. Deletes requirement to report back to the legislature with recommendations. Makes conforming changes. Sec. 33.608. REPORT TO LEGISLATURE. Requires the commissioner to submit to the legislature, each biennium, a report listing certain enumerated information related to erosion. Sec. 33.609. LANDOWNER CONSENT. (a) Prohibits the commissioner from undertaking a coastal erosion response project on permanent school fund land without first obtaining the written consent of the school land board; or on private property, other than that encumbered by the common law rights of the public affirmed by Chapter 61, without first obtaining the written consent of the property owner. (b) Provides that if the commissioner cannot determine the identity of or locate a property owner, consent is considered to have been given if the commissioner publishes a notice of the project at least once a week for two consecutive weeks in the newspaper having the largest circulation in the county in which the project is located; and the property owner does not object on or before the 20th day after the last date notice is published under Subdivision (1). Sec. 33.610. REMOVAL OF SUBMERGED LAND FROM APPRAISAL AND TAX ROLLS. (a) Authorizes the commissioner to notify in writing the appraisal district that appraises the land for ad valorem tax purposes and each taxing unit that imposes taxes on the land if the commissioner determines that land has become submerged by erosion or subsidence and as a result is dedicated to the permanent school fund. Provides that the notice must include a legal description of the land. (b) Requires the appraisal district, on receipt of notice under Subsection (a), to remove the land from the appraisal roll, and requires each taxing unit to remove the land from its tax roll. Sec. 33.611. IMMUNITY. (a) Provides that this state, the commissioner, and land office staff are immune from suit for damages and from liability for an act or omission related to: (1) the approval, disapproval, funding, or performance of a coastal erosion response activity, including an erosion response study or project or a survey; or (2) the failure of an erosion response project undertaken by the commissioner under this subchapter to fulfill its intended purpose. (b) Provides that the immunity granted by this section does not apply to an act or omission that is intentional, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others. Sec. 33.612. JUDICIAL REVIEW. (a) Provides that judicial review of rights affected by an action of this state, the commissioner, or land office staff under this subchapter is under the substantial evidence rule. Provides that a person seeking review must prove, in order to prevail, that the action complained of was arbitrary, capricious, or otherwise not in accordance with law. (b) Provides that the venue for an action relating to this subchapter is in Travis County. SECTION 5. Amends Sections 40.151(a) and (b), Natural Resources Code, to provide that the coastal protection fund is established to be used by the commissioner as a nonlapsing revolving fund for the purposes of Subchapter H (Coastal Erosion), Chapter 33, Natural Resources Code. Makes conforming and nonsubstantive changes. SECTION 6. Amends Section 40.152(a), Natural Resources Code, by amending Section 40.152(a)(10) to include erosion response projects under Subchapter H, in an amount not to exceed the interest accruing to the fund annually, on the list for which money in the fund is authorized to be disbursed. Makes conforming changes. SECTION 7. Amends Section 40.153, Natural Resources Code, to provide this section does not apply to sums expended under Section 40.152(a)(10). SECTION 8. Amends Section 40.161, Natural Resources Code, by adding Subsection (c), to provide that this section does not apply to a sum expended under Section 40.152(a)(10). SECTION 9. Amends Section 61.025(a), Natural Resources Code (relating to a statement that must be included in a contract for the sale or conveyance of an interest, other than mineral, leasehold, or security interest, in real property located seaward of the Gulf Coast Intracoastal Waterway) to make a conforming change. SECTION 10. (a) Effective date: September 1, 1999. (b) Makes application of Section 33.136(d), Natural Resources Code, as amended by this Act, prospective. (c) Makes application of Section 33.609, Natural Resources Code, as added by this Act, prospective. (d) Makes application of Section 33.611, Natural Resources Code, as added by this Act, prospective. SECTION 11. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 2560 differs from the original bill in SECTION 1 by redesignating SECTION 1 of the original as SECTION 2 in the substitute. The new SECTION 1 sets forth legislative intent. SECTION 2 of the substitute differs from the original by prohibiting a person from undertaking an action on or immediately landward of a public beach or submerged land, including state mineral lands, rather than an action in the coastal zone related to erosion response that will cause or contribute to shoreline erosion before meeting certain conditions. This substitute differs from the original bill in SECTION 2 by adding the provision that a person is not required to obtain a lease or other instrument from the commissioner or board if the action is confined to land owned by a navigation district or municipality. The substitute differs from the original bill by removing the proposed language: "If a lease, easement, or other instrument was issued by the commissioner or board in connection with the erosion response activity, the. . ." from the notice statement required for the survey. This substitute differs from the original bill by redesignating SECTION 2 of the original bill as SECTION 3, and modifying that section by not including the proposed amendment to Section 33.203(1) from the original. Accordingly, SECTION 3 of the substitute amends Section 33.203(10), Natural Resources Code, defines "critical erosion area" as having the meaning assigned to the term "critical coastal erosion area" by Section 33.601. SECTION 3 of the original bill is redesignated as SECTION 4 of the substitute. SECTION 4 of the substitute differs from SECTION 3 of the original bill by defining "hard structure" (proposed Section 33.601(6), Natural Resources Code) as an erosion response structure such as a bulkhead, seawall, revetment, jetty or groin or a similar structure, rather than a hard or rigid shoreline structure built to protect upland property including a jetty, groin, bulkhead, seawall, riprap, rubble mound, or revetment or similar structure. SECTION 4 of the substitute differs from SECTION 3 of the original bill in proposed Section 33.603, Natural Resources Code, by providing that this chapter (Chapter 33, Natural Resources Code) does not authorize the construction or funding, rather than construction, of a hard structure on or landward of a public beach. Also in SECTION 4, Section 33.604 (Coastal Erosion Response Account) in the substitute differs from Section 33.604 in the original by deleting Subsection (b)(3), which provided that the coastal erosion response account consists of fees remitted to the comptroller under Section 118.017, Local Government Code, and Sections 521.425(b) and 522.029(i), Transportation Code. Subdivision (4) of the original is redesignated as Subdivision (3). Deletes proposed Subdivision (5) which provided that the coastal erosion response account consists of all money received by the comptroller or commissioner from any other source for the purposes of this subchapter. Section 33.604 in the substitute also differs from Section 33.604 in the original by deleting Subsection (c), which required the comptroller to notify, not later than August 1 preceding that state fiscal biennium, each entity otherwise obligated to impose the fees described by Subsection (b)(3) that the entity may not impose the fees during that state fiscal biennium if the legislature appropriates at least $15 million for the purposes of this subchapter for a state fiscal biennium. Makes a conforming change. SECTION 4 of the substitute differs from SECTION 3 of the original bill by amending proposed Section 33.611 (Immunity) to delete the subdivision that sets forth that this state, the commissioner, and land office are immune from suit for damages and from liability for an act or omission related to any other matter related to erosion response by the commissioner provided by this subchapter; and adding the provision that the immunity granted by this section does not apply to an act or omission that is intentional, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others. This substitute differs from the original bill by deleting SECTIONS 5 through 9 of the original. SECTION 5 of the original bill authorized the county clerk of a county to collect a certain fee. SECTION 6 of the original bill created a coastal erosion response fee. SECTION 7 of the original bill required each applicant for issuance or renewal of a driver's license, in addition to other fees, to pay a coastal erosion response fee, and prohibited the department from imposing the fee during a state fiscal biennium if the department received a certain notice. SECTION 8 of the original bill required the department to remit the coastal erosion response fee, less certain costs, to the comptroller to the credit of the coastal erosion response account. SECTION 9 of the original bill required each applicant for issuance or renewal of a commercial driver's license, in addition to other fees, to pay a coastal erosion response fee, and prohibited the department from imposing the fee during a state fiscal biennium if the department received a certain notice. SECTION 9 of the original bill also required the department to remit the coastal erosion response fee, less certain costs, to the comptroller to the credit of the coastal erosion response account. SECTION 5 of the substitute amends Sections 40.151(a) and (b), Natural Resources Code, to provide that the coastal protection fund is established to be used by the commissioner as a nonlapsing revolving fund for the purposes of Subchapter H (Coastal Erosion), Chapter 33, Natural Resources Code. Makes conforming and nonsubstantive changes. SECTION 6 of the substitute amends Section 40.152(a), Natural Resources Code, by adding Section 40.152(a)(10) to include erosion response projects under Subchapter H, in an amount not to exceed the interest accruing to the fund annually, on the list for which money in the fund is authorized to be disbursed. Makes conforming changes. SECTION 7 of the substitute amends Section 40.153, Natural Resources Code, to provide that this section does not apply to sums expended under Section 40.152(a)(10). SECTION 8 of the substitute amends Section 40.161, Natural Resources Code, by adding Subsection (c), to provide that this section does not apply to a sum expended under Section 40.152(a)(10). SECTION 9 of the substitute is redesignated from SECTION 4 of the original bill. SECTION 10 of the substitute differs from SECTION 10 of the original by deleting Subsections (e) and (f) to make conforming changes related to fees required in sections of the original bill that do not appear in the substitute.