PART 1. GENERAL LAND OFFICE
CHAPTER 15. COASTAL AREA PLANNING
SUBCHAPTER A. MANAGEMENT OF THE BEACH DUNE SYSTEM
The General Land Office (GLO) proposes amendments to 31 Texas Administrative Code (TAC) §15.7(h)(5), relating to Local Government Management of the Public Beach, and §15.34, relating to Certification Status of Village of Surfside Beach Dune Protection and Beach Access Plan (Plan). The GLO is proposing the amendment to §15.7(h)(5) to ensure consistency with related provisions in the TAC. The GLO is proposing new §15.34(e) to certify as consistent with state law Plan amendments proposed by the Village of Surfside Beach (Village). The proposed Plan amendments include increasing the beach user fee (BUF) and updating the Plan's beach access section.
Copies of the Village's proposed Plan can be obtained by contacting the Village of Surfside Beach City Secretary at 1304 Monument Drive, Surfside Beach, Texas 77541-9522, (979) 233-1531, or the GLO's Archives and Records Division, Texas General Land Office, P.O. Box 12873, Austin, Texas 78711-2873, (512) 463-5277.
BACKGROUND AND ANALYSIS OF THE PROPOSED AMENDMENT TO §15.7(h)(5)
GLO adopted amendments to 31 TAC Ch. 15, effective May 30, 2023. Some of the amendments were made with the goal of enhancing beach access for persons with disabilities. After the rule amendments were adopted, the GLO was made aware by the Texas Department of Licensing and Regulation (TDLR) and its Elimination of Architectural Barriers Program that a minor amendment to §15.7(h)(5) was necessary, which states in part, "For the purposes of vehicular restrictions only, beach access for persons is preserved if the following criteria are met...." Since the GLO does not have the authority to determine by rule whether access is preserved for persons with disabilities, the GLO is proposing an amendment to the subsection. The proposed amendment would add "with disabilities" and "presumed" to the text of the rule pertaining to vehicular restrictions to the beach and access for persons with disabilities. The amendment would make §15.7(h)(5) consistent with the rest of §15.7(h) by specifying that meeting the criteria in the rule creates a presumption that access is preserved, but that other evidence may be considered in making a final determination. The presumption is rebuttable given other evidence, existing and historical use of the beach, and circumstances particular to the vehicular restriction requested. The amended text as proposed is, "For the purposes of vehicular restrictions only, beach access for persons with disabilities is presumed to be preserved if the following criteria are met...." This change would make the rule consistent with the rest of §15.7(h), Preservation and Enhancement of Public Beach Use and Access.
BACKGROUND AND ANALYSIS OF THE PROPOSED AMENDMENT TO §15.34
Pursuant to the Open Beaches Act (Texas Natural Resources Code, Chapter 61) and the Texas Administrative Code (31 TAC §§15.3, 15.7, and 15.8), a local government with jurisdiction over Gulf Coast beaches must submit any proposed amendments to its Plan or Beach User Fee Plan (BUF Plan) to the GLO for certification. If appropriate, the GLO will certify that the Plan or BUF Plan is consistent with state law by amendment of a rule, as authorized in Texas Natural Resources Code (TNRC) §§61.011(d)(5) and 61.015(b). The certification by rule reflects the state's certification of the Plan; however, the text of the Plan is not adopted by the GLO, as provided in 31 TAC §15.3(o)(4).
On October 10, 2023, the City Council of the Village of Surfside Beach adopted Ordinance 2023-10-10 to adopt the proposed amendments to the Plan, which include increasing the BUF and updating the Plan's beach access section. The ordinance becomes effective upon the GLO's certification of the amendments to the Plan as consistent with state law. The Plan was submitted to the GLO in accordance with 31 TAC §15.3 and §15.8 and TNRC §61.022(c).
The Village is a coastal community in Brazoria County bordering the Gulf of Mexico. The Village is located on Follett's Island and is accessible from Galveston Island via County Road 257, and from the City of Freeport via State Highway 332. The Village includes approximately 3.8 miles of jurisdictional beach. The areas governed by the Plan include those beaches and adjacent areas within Village jurisdiction that border the Gulf of Mexico.
As provided in 31 TAC §15.8, local governments may request authorization to increase the BUF provided that the local government demonstrates that the increased BUF corresponds to increased costs of the local government for providing public services and facilities directly related to the public beach. Pursuant to 31 TAC §15.3 and §15.8, the Village adopted a new BUF and submitted a BUF Plan to the GLO with a request for certification that the BUF Plan is consistent with state law.
The proposed amendment to the BUF Plan increases the annual permit fee amount from $12 to $30, expiring on December 31st of each year, and adds a new daily permit option of up to $15 per vehicle, valid until 12 a.m. (midnight) on the date of issue. The amendment also includes an off-season rate of up to $15 for annual permits sold January 1st through January 31st, expiring on December 31st of each year. The annual and daily permits allow for parking motor vehicles along the beach-facing side of Beach Drive, immediately adjacent to the beach, and driving onto the beach at designated access points. The permits will be available for purchase at the Village City Hall, local area businesses, and beach permit booths.
According to the Village, the BUF increase is necessary due to ongoing budget deficits from the management of increased beach visitation, increased expenditures on beach maintenance and safety, and damages from unpredictable seasonal storms, which may impact the beach, dune walkovers, beach accesses, and parking areas. In the short term, the Village indicates that additional revenue generated by the increased BUF will enable the Village to expand beach cleaning and maintenance activities by increasing beach maintenance personnel and by purchasing additional beach equipment, enhancing safety by increasing lifeguard and law enforcement presence, and installing educational beach maintenance signage. In the long term, the revenue from the BUF will be used to install a mobile command center to improve safety and emergency response; provide beach amenities such as showers, permanent restrooms, picnic areas, and vending areas; and further increase beach maintenance and safety personnel and equipment.
Based on the information and justification provided by the Village, the GLO has determined that the BUF increase is reasonable. The BUF does not exceed the necessary and actual cost of providing reasonable beach-related facilities and services, does not unfairly limit public use of and access to and from public beaches in any manner, and is consistent with §15.8 of the Beach/Dune Rules and the Open Beaches Act. Therefore, the GLO finds that the BUF Plan is consistent with state law.
The proposed amendments also modify vehicular access to the public beach with an updated parking inventory for off-beach parking areas. The proposed amendment prohibits on-beach vehicular access from Hwy 332 to Starfish Street, which is approximately 400 linear feet of beach. This prohibition is due to the narrow width of the beach, soft sand conditions that has made driving a hazard in this area for a number of years, and future groin locations. In order for the Village to close vehicular access in the area from Hwy 332 to the jetties, 27 additional parking spaces, in excess of the required number, were provided, and the Village demonstrated compliance in the updated parking inventory.
FISCAL AND EMPLOYMENT IMPACTS
Ms. Angela Sunley, Deputy Director of GLO's Coastal Resources Division, has determined that for each year of the first five years the proposed amended rules are in effect, there will be minimal fiscal implications for the state government or local economy as a result of enforcing or administering the amended rules. Ms. Sunley has determined that the proposed amendments will not affect the costs of compliance for small businesses or micro-businesses. The proposed Plan amendments relate to individual permits for on-beach and off-beach parking and are not related to the permitting or restriction of business activities. The impact of the BUF increase is mitigated by the existence of no-fee parking areas within the Village. The other Plan amendments will primarily affect the location of beach access and will have minimal impact on small businesses.
Ms. Sunley has determined that there will be minimal fiscal implications to the local government and no additional costs of compliance for large and small businesses or individuals resulting from the proposed amendment to §15.7(h)(5). GLO is providing funding for certain amenities, such as mobility mats and beach wheelchairs, to local governments to enhance access for persons with disabilities.
PUBLIC BENEFIT
Ms. Sunley has determined that the public will benefit from the proposed amendment to §15.7(h)(5) since there will be more options and flexibility for enhancing beach access for persons with disabilities.
Ms. Sunley has determined that the public will be affected by the increase of the Village's BUF since individuals will be required to pay larger daily and annual fees. However, the Plan includes no-fee areas of public beach parking and no-fee drivable areas of the beach, as required by 31 TAC §15.8(h), mitigating the impact of the BUF increase on individuals. The Village's Plan designates 675 free parking spaces within walking distance of the beach.
Ms. Sunley has determined that the BUF benefits the public and beachgoers because the increased fees will enable the Village to continue to fund and provide adequate and improved beach-related services to the public. The BUF specifically benefits the public and beachgoers by funding improved access and enhancing the safety of the public at the beach.
ENVIRONMENTAL REGULATORY ANALYSIS
The GLO has evaluated the proposed rulemaking action considering the regulatory analysis requirements of Texas Government Code §2001.0225 and determined that the action is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the statute. "Major environmental rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed amendments are not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The amendments are proposed under Texas Natural Resources Code §§61.011, 61.015(b), and 61.022 (b) & (c), and 61.070, which provide the GLO with the authority to adopt rules governing the preservation and enhancement of the public's right to use and have access to public beaches, imposition or increase of beach user fees, and certification of local government beach access and use plans as consistent with state law. The proposed amendments do not exceed federal or state requirements.
TAKINGS IMPACT ASSESSMENT
The GLO has evaluated the proposed rulemaking in accordance with Texas Government Code §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines to determine whether a detailed takings impact assessment is required. The GLO has determined that the proposed amendments do not affect private real property in a manner that requires real property owners to be compensated as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Article I, §17 and §19 of the Texas Constitution. GLO has determined that the proposed amendments would not affect any private real property in a manner that restricts or limits any owner's right to property or use of that property.
GOVERNMENT GROWTH IMPACT STATEMENT
The GLO prepared a Government Growth Impact Statement for this proposed rulemaking. Since the proposed amendment to §15.34 simply certifies as consistent with state law the amendments to Village of Surfside Beach Dune Protection and Beach Access Plan (Plan), it will not affect the operations of the GLO. The proposed amendment to §15.7(h)(5) amends the standard for preserving beach access for persons with disabilities and will not affect the operations of the GLO. The proposed rulemaking does not create or eliminate a government program, will not require an increase or decrease in future legislative appropriations to the agency, will not require the creation of new employee positions nor eliminate current employee positions at the agency, nor will it require an increase or decrease in fees paid to the General Land Office. The proposed rule amendments do not create, limit, or repeal existing agency regulations, but rather clarify an existing rule and certify the amendments to the Village's Plan as consistent with state law. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability. The proposed amendments to §15.7 and §15.34 will not affect the economy in the State of Texas.
CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM
The proposed rulemaking is subject to the Coastal Management Program (CMP) as provided for in the Texas Natural Resources Code §33.2053, and 31 TAC §29.11(a)(1)(J) and §29.11(c) (relating to Actions and Rules Subject to the CMP). GLO has reviewed this proposed action for consistency with the CMP goals and policies in accordance with the regulations and has determinate that the proposed action is consistent with the applicable CMP goals and policies. The applicable goals and policies are found at 31 TAC §26.12 (relating to Goals) and §26.26 (relating to Policies for Construction in the Beach/Dune System).
The proposed amendments are consistent with the CMP goals outlined in 31 TAC §26.12(5). These goals seek to balance the benefits of economic development and multiple human uses, protecting, preserving, restoring, and enhancing CNRAs, and the benefits from public access to and enjoyment of the coastal zone. The proposed amendments are consistent with 31 TAC §26.12(5) as they provide the Village with the ability to enhance public access and enjoyment of the coastal zone, protect and preserve and enhance the CNRA, and balance other uses of the coastal zone. The proposed rules are also consistent with CMP policies in §26.26(a)(4) by enhancing and preserving the ability of the public, individually and collectively, to exercise its rights of use of and access to and from public beaches.
PUBLIC COMMENT REQUEST
To comment on the proposed rulemaking or its consistency with the CMP goals and policies, please send a written comment to Mr. Walter Talley, Texas Register Liaison, Texas General Land Office, P.O. Box 12873, Austin, Texas 78711, facsimile number (512) 475-1859 or email to walter.talley@glo.texas.gov. Written comments must be received no later than 5:00 p.m., thirty (30) days from the date of publication of this proposal.
STATUTORY AUTHORITY
The amendment is proposed under Texas Natural Resources Code §§61.011, 61.015(b), and 61.022 (b) & (c), and 61.070, which provide the GLO with the authority to adopt rules governing the preservation and enhancement of the public's right to access and use public beaches, imposition or increase of beach user fees, and certification of local government beach access and use plans as consistent with state law.
The GLO hereby certifies that the section as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority.
§15.7.Local Government Management of the Public Beach.
(a) - (g) (No change.)
(h) Preservation and enhancement of public beach use and access. A local government shall regulate pedestrian or vehicular beach access, traffic, and parking on the beach only in a manner that preserves or enhances existing public right to use and have access to and from the beach. A local government shall not impair or close an existing access point, close a public beach to pedestrian or vehicular traffic, or modify public beach parking without prior approval from the General Land Office. The General Land Office may approve and certify a local government's modification to their beach access and use plan based upon the General Land Office's affirmative finding that such modifications preserve or enhance the public's right to use and access the public beach.
(1) - (4) (No change.)
(5) A local government may not restrict vehicular traffic from a public beach unless it preserves or enhances beach access for persons with disabilities. For the purposes of vehicular restrictions only, beach access for persons with disabilities is presumed to be preserved if the following criteria are met:
(A) - (E) (No change.)
(i) - (o) (No change.)
§15.34.Certification Status of Village of Surfside Beach Dune Protection and Beach Access Plan.
(a) - (d) (No Changes.)
(e) The General Land Office certifies that the Beach User Fee and the Beach User Fee Plan adopted by the City Council of the Village of Surfside Beach in Ordinance 2023-10-10 on October 10, 2023, is consistent with state law. The Plan adopts a Beach User Fee of up to $15.00 a day and an annual fee of up to $30.00. The amendments also update the beach access section of the Plan.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on November 29, 2023.
TRD-202304400
Mark Havens
Chief Clerk
General Land Office
Earliest possible date of adoption: January 14, 2024
For further information, please call: (512) 475-1859