Section 15.18 - [Effective until 11/6/2024] Emergency Provisions for Emergency Dune Restoration, Stabilization and Repair of Damaged Habitable Structures, and Repair and Shortening of Dune Walkovers(a) Purpose. The purpose of this section is to allow a local government to authorize a property owner to immediately undertake certain emergency repairs to restore dunes, to make minor emergency repairs to and shorten dune walkovers, and to stabilize and repair a habitable structure damaged as the result of Tropical Storm Alberto and Hurricane Beryl, so as to minimize further threat or damage to coastal residents and littoral property.(b) Applicability. This section applies only to emergency dune restoration projects, dune walkover emergency repairs and shortening, and emergency stabilization and repairs to habitable structures in jurisdictions that have authority to issue beachfront construction certificates and dune protection permits in Nueces County, Matagorda County, Brazoria County, and Galveston County. This section will be in effect for 120 days from the date of filing with the Office of the Secretary of State and may be extended once by the Land Commissioner for not longer than 60 days as necessary to protect public health, safety and welfare.(c) Definitions. The following words and terms, as used in this section, shall have the following meanings: (1) The Code--The Texas Natural Resources Code.(2) Habitable--The condition of the premises which permits the inhabitants to live free of serious threats to health and safety.(3) Habitable Structure--Structures suitable for human habitation including, but not limited to, single or multi-family residences, hotels, condominium buildings, and buildings for commercial purposes. Each building of a condominium regime is considered a separate habitable structure, but if a building is divided into apartments, then the entire building, not the individual apartments, is considered a single habitable structure.(4) Emergency dune restoration--Those immediate and authorized response measures that must be undertaken to construct a dune, repair a damaged dune, or stabilize an existing dune in order to minimize further threat or damage to coastal residents and littoral property.(5) Emergency repair--Those immediate and authorized response actions that must be undertaken to render a structure habitable, prevent further damage or loss of property to high tides, or to remove or repair a dune walkover that may impact public beach access or pose safety concerns.(6) Emergency stabilization--Those immediate and authorized response actions that must be undertaken to stabilize a habitable structure that is subject to imminent collapse or substantial damage as a result of erosion or undermining caused by waves or currents of water exceeding normally anticipated cyclical levels.(7) Restoration Area- (A) An area where dunes existed pre-storm;(B) An area no more than 10 feet seaward of a habitable structure if no dunes existed in the area before the storm;(C) In no case does the Restoration Area include the area seaward of the mean high tide line or an area where placement of restored dunes would result in substantial interference with the public's ability to access the beach at mean high tide; and(D) Local governments may not authorize perimeter fences, sand fences, or any fence-like structure or assembly of materials, including but not limited to post and rope, around or adjacent to the Restoration Area.(d) Local government authorization. The local governments with the authority to issue dune protection permits and beachfront construction certificates in Nueces County, Matagorda County, Brazoria County, and Galveston County may, in accordance with this section, authorize emergency dune restoration projects, the emergency stabilization and emergency repair of a habitable structure, or the emergency repair or shortening of a dune walkover damaged by Tropical Storm Alberto and Hurricane Beryl. The local government may not authorize sand fences, perimeter fences, or any fence-like structure or assembly of materials, including but not limited to post and rope, under this section.(1) The local government is responsible for assessing damage to dunes, structures and dune walkovers, determining whether the proposed dunes, structures and dune walkovers are eligible for restoration or emergency stabilization and emergency repair, and determining appropriate restoration methods and emergency stabilization and emergency repair procedures. Under this section, the local government may only authorize emergency dune restoration or emergency stabilization and emergency repair as necessary to eliminate the danger and threat to public health, safety, and welfare, or to minimize the danger and threat to coastal residents and littoral property.(2) Any proposed emergency dune restoration project or emergency stabilization and emergency repair of a habitable structure or emergency repair or shortening of a dune walkover must strictly comply with the standards and requirements provided in this section and §15.6(e). In order to be eligible for use of emergency rules for emergency repair or emergency stabilization, no portion of the habitable structure may be located seaward of mean high tide, the habitable structure must not have been damaged more than 50 percent or destroyed, and the habitable structure must not present an imminent threat to public health and safety.(e) Procedures. The permit and certificate application requirements and procedures of § 15.3(s)(5) of this title (relating to Administration) are not applicable to emergency dune restoration projects, emergency stabilization and emergency repair of habitable structures or emergency repair or shortening of dune walkovers that are authorized under this rule. However, any person eligible to undertake an emergency dune restoration project, emergency stabilization and emergency repair of a habitable structure, or emergency repair or shortening of a dune walkover must receive prior approval for such actions from the local government officials responsible for approving such actions. Any action that is not necessary for the emergency dune restoration, emergency stabilization and emergency repair of habitable structures, or emergency repair or shortening of dune walkovers under this section must undergo the standard application and approval process before such action is undertaken. An authorization issued by a local government under this section shall be valid only for six months from the date of issuance, after which it will expire. A local government shall not renew an authorization issued under this section.(f) Written Record. The local government authorizing emergency dune restoration, emergency stabilization and emergency repair of habitable structures, or emergency repair or shortening of dune walkovers shall compile and maintain a written record of the names and addresses of the property owners that receive such authorization. For each emergency dune restoration authorization, the local government must maintain a written record of the actions that it authorized, including the location of the dune and pictures of the emergency dune restoration project before and after completion of the authorized activities. For each emergency stabilization and emergency repair of a habitable structure, the local government must maintain a written record of the actions that it authorized, including the address of the structure, a description of the repairs, and pictures of the structure before and after completion of the authorized activities. For each emergency repair or shortening of a dune walkover, the local government must maintain a written record of the actions that it authorized, including the address of the dune walkover, a description of the repairs or shortening, and pictures of the dune walkover before and after repairs or shortening. The local government will make such record available for inspection by the General Land Office upon request. Within one week of the expiration of this rule, the local government shall submit to the General Land Office copies of the complete written record of all actions authorized under this section.(g) Authorized emergency dune restoration. The local government shall require persons to locate restored dunes in the restoration area, as defined in subsection (c)(7). The local government may authorize the restoration of dunes only under the following conditions: (1) if the restored dunes would not substantially restrict or interfere with access points or public access to or use of the public beach at normal high tide, including causing pedestrian or vehicular traffic to enter the water in order to traverse the beach at normal high tide;(2) if the placement of sand or other authorized materials will be above the mean high tide line; and(3) if derelict structures and debris have been removed from the area before placement of allowable materials.(h) Authorized methods and materials for emergency dune restoration. The local government may allow persons to use the following methods or materials for emergency dune restoration:(1) beach-quality sand having similar grain size and mineralogy as the surrounding beach;(2) organic brushy material including seaweed, dune vegetation and hay bales; and(3) and obtained by scraping accreting beaches only if the scraping is approved by the local government and the areas where scraping is authorized is monitored to determine any effect on the public beach, including, but not limited to, increased erosion of the public beach.(i) Prohibitions regarding emergency dune restoration. The local government shall not allow any person to undertake dune restoration projects using any of the following materials:(1) materials such as bulkheads, sandbags, riprap, concrete, asphalt rubble, building construction materials, and any non-biodegradable items;(2) materials such as sand fencing, perimeter fencing or any fence-like structure or assembly of materials, including but not limited to post and rope;(3) sediments containing the hazardous substances listed in Appendix A to §302.4 in Volume 40 of the Code of Federal Regulations, Part 302 in concentrations which are harmful to people, flora, and fauna as determined by applicable, relevant, and appropriate requirements for toxicity standards established by the local, state, and federal governments;(4) sand obtained by scraping or grading dunes or beaches unless otherwise authorized under these rules; or(5) sand that is not beach-quality sand or an acceptable mineralogy and grain size when compared to the sediments found in the beach/dune system.(j) Authorized Stabilization and Repair of Damaged Habitable Structures. The local government may authorize emergency stabilization and repair of a habitable structure only if the local government determines that the proposed action is necessary to render the structure habitable, to prevent further damage, or to protect public health, safety and welfare.(1) Repairs may include: (A) repairs solely to make the structure habitable or prevent further damage, including reconnecting the structure to utilities;(B) placing fill material under the footprint of habitable structures if it consists only of beach quality sand or a sandy clay mixture. Sandy clay may be placed to fill voids only directly under the footprint of a residential structure; provided, however, that sandy clay used for this purpose must be covered with beach quality sand, where practicable, to a depth of at least 12 inches. Such actions are only authorized in situations where stabilization of the structure is required to prevent foreseeable undermining of habitable structures in the event of future storms and high tide events;(C) repairing or constructing an enclosed space under a habitable structure if it is constructed of breakaway walls or louvered walls and is consistent with the local dune protection and beach access plan and the National Flood Insurance Program;(D) construction of wooden decking or stairs under or directly adjacent to the footprint of the habitable structure only as necessary to make the house accessible;(E) installation of new pilings or repair of existing pilings; and(F) placement of beach-quality sand on the lot in the area up to ten feet seaward of a habitable structure where necessary to prevent further erosion due to wind or water. The sand must remain loose and cannot be placed in bags. Placement of loose beach quality sand is authorized in situations where protection of the land immediately seaward of a habitable structure is required to prevent foreseeable undermining of habitable structures in the event of such erosion.(2) Repairs may not include:(A) increasing the footprint of the habitable structure;(B) the use of impervious material, including but not limited to concrete or fibercrete;(C) the repair or construction of a bulkhead, retaining wall, other erosion response structure, or structural shore protection project;(E) repairs that occur seaward of mean high tide;(F) placement of beach-quality sand or sandy clay seaward of the mean high tide line; and(G) materials such as sand fencing, perimeter fencing or any fence-like structure or assembly of materials, including but not limited to post and rope.(k) Authorized Repair and Shortening of Dune Walkovers. The local government may authorize the removal or shortening of dune walkovers to remove any potential impacts to public use of the beach. The local government may authorize emergency repairs of a dune walkover only under the following conditions: (1) Repairs to damaged dune walkovers may include:(A) removing, replacing and/or stabilizing exposed damaged pilings;(B) removing and/or replacing the seaward ramp or stairs; and(C) removing and/or replacing damaged handrails or deck boards.(2) Repairs to damaged dune walkovers may not include:(A) increasing the existing footprint of the dune walkover, including widening the existing walkover or altering its height;(B) extending the dune walkover further seaward;(C) the use of concrete or impervious materials to stabilize pilings or for other reasons;(D) adverse impacts to dunes or dune vegetation; and(E) repairs that occur seaward of mean high tide.(l) Repair of structures subject to ongoing enforcement. Any repairs to structures that are subject to an ongoing enforcement action under this subchapter, the Open Beaches Act (Texas Natural Resources Code, Chapter 61), the Dune Protection Act (Texas Natural Resources Code, Chapter 63), or a local government beach access and dune protection plan must go through standard permitting process.(m) Repair of sewage or septic systems. If the Texas Commission on Environmental Quality or its designated local authority, the Texas Department of Health, or a local health department has made a determination that a sewage or septic system located on or adjacent to the public beach poses a threat to the health of the occupants of the property or public health, safety or welfare, and requires removal of the sewage or septic system, the sewage or septic system shall be located in accordance with § 15.4(b)(10) of this title (relating to Dune Protection Standards, § 15.5(b)(1) of this title (relating to Beachfront Construction Standards) and § 15.6(b) and § 15.6(e)(1) of this title (relating to Concurrent Dune Protection and Beachfront Construction Standards).(n) This emergency rule does not authorize the placement of materials seaward of the mean tide line.(o) The local government is not authorized under this rule to allow the use of concrete or the construction, maintenance, or repair of bulkheads or other erosion response structures, or allow the construction or repair of a structural shore protection project. This rule does not prohibit a local government from authorizing the removal of portions of damaged bulkheads that threaten public health safety and welfare.(p) Effect on actions for removal. This section does not create a property right of any kind in the littoral property owner. Houses eligible for repairs to maintain habitability under this section may also be encroachments on and interferences with the public beach easement. The right of the commissioner, the attorney general, a county attorney, district attorney, criminal district attorney or local authority to file suit in the future to pursue enforcement or obtain an injunction, to remove a house from the public beach is preserved regardless of whether the house is eligible for emergency stabilization and repairs under this section.31 Tex. Admin. Code § 15.18
Adopted by Texas Register, Volume 49, Number 29, July 19, 2024, TexReg 5211, eff. 7/10/2024, exp. 11/6/2024 (Emergency)