HBA-NIK S.B. 1690 76(R)BILL ANALYSIS Office of House Bill AnalysisS.B. 1690 By: Bernsen Land & Resource Management 5/5/1999 Committee Report (Amended) 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 with which to shoes beach erosion along the Texas coast. Consequently, Texas does not receive federal funding for coastal erosion. S.B. 1690 creates an erosion fund out of which the land commissioner 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, Natural Resources Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Sets forth legislative findings regarding public beaches, and bays. SECTION 2. Amends Sections 33.136(a)-(e), Natural Resources Code, as follows: (a) Prohibits a person from undertaking, notwithstanding any law to the contrary, in the coastal zone, 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) (Section 33.004 (Definitions), Natural Resources Code), as applicable. 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) Makes conforming changes. (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 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 redefine "critical erosion area," to have the meaning assigned to "critical coastal erosion area" by Section 33.601 (Coastal Erosion Duties and Authority), rather than meaning an area designated by the land commissioner under Section 33.601(b). SECTION 4. Amends Subchapter H, Chapter 33, Natural Resources Code, as follows: SUBCHAPTER H. COASTAL EROSION Sec. 33.601. New title: 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. New title: 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 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, fees, 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) Creates Subdivisions (1)-(4) from existing text. (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 (Use and Maintenance of Public Beaches) or 63 (Dunes) 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 committed 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 include that another purpose of this subchapter (Payment of Costs and Damages) is to provide immediately available funds for erosion response projects. Provides that the coastal protection fund is established in the state treasury to be used by the commissioner as a nonlapsing revolving fund only for carrying out the purposes of this chapter (Oil Spill Prevention and Response Act of 1991) and of Subchapter H (Management of Coastal Public Land), Chapter 33. SECTION 6. Amends Section 40.152(a), Natural Resources Code, to authorize the money in the fund to be disbursed, in an amount not to exceed the interest accruing to the fund annually, for erosion response projects under Subchapter H, Chapter 33, among the other enumerated purposes. SECTION 7. Amends Section 40.153, Natural Resources Code, to provide that this section (Reimbursement) does not apply to sums expended under Section 40.152(a)(10) as amended in SECTION 6. SECTION 8. Amends Section 40.161, Natural Resources Code, by adding Subsection (c), to make a conforming change. SECTION 9. Amends Subsection (a), Section 61.025, Natural Resources Code, to provide that the statement included in an executory contract for the conveyance of coastal property state that the structures erected seaward of the vegetation line (or other applicable easement boundary) or that become seaward of the vegetation line as a result of natural processes such as shoreline erosion are subject to a lawsuit by the State of Texas to remove the structures. Adds text to provide that the purchaser should also determine the rate of shoreline erosion in the vicinity of the real property. SECTION 10. (a) Effective date: September 1, 1999, except as provided by SECTION 11 of this Act. (b) Provides that Subsection (d), Section 33.136, Natural Resources Code, applies only to a cause of action that accrues on or after September 1, 1999. Makes application of this Act prospective. (c) Provides that Section 33.609, Natural Resources Code, applies only to erosion response activity undertaken on or after September 1, 1999. (d) Provides that Section 33.611, Natural Resource Code, applies only to a cause of action that accrues on or after September 1, 1999. SECTION 11. Provides that this Act takes effect only if a specific appropriation for the implementation of this Act is provided in H.B. 1 (General Appropriations Act), Acts of the 76th Legislature, Regular Session, 1999. Provides that if no specific appropriation is provided in H.B. 1, General Appropriations Act, this Act has no effect. SECTION 12. Emergency clause. EXPLANATION OF AMENDMENTS Amendment #1: In SECTION 2, amends Section 33.136(a), Natural Resources Code, to add text providing 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.