Adopted Rules Title 31

TITLE 31. NATURAL RESOURCES AND CONSERVATION

SUBCHAPTER A. MANAGEMENT OF THE BEACH/DUNE SYSTEM

The General Land Office (GLO) adopts amendments to 31 Texas Administrative Code (TAC) §15.36, relating to Certification Status of the City of Galveston Dune Protection and Beach Access Plan (Plan), with changes to the text of the Rule. The GLO adopts amendments to subsection 15.36(d) and new section 15.36(e) to certify the amendments to the Plan as consistent with state law.

The rule amendment was published in the June 7, 2024, issue of the Texas Register (49 TexReg 4021) and will be republished.

Copies of the City's Plan can be obtained by contacting the City of Galveston Department of Development Services at 3015 Market St, Galveston, Texas 77550, 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 JUSTIFICATION

On March 21, 2024, the Galveston City Council passed Resolution No. 24-012, which authorized the City Manager to submit proposed amendments to the City's Plan to the GLO for certification. The amendments to the City's Plan were submitted to the GLO with proposed changes shown in redline, which included adopting a variance for the use of reinforced concrete in the area within 200 feet from the line of vegetation for a certain property partially behind the seawall, prohibiting vehicular beach access at Access Point 7 -- Sunny Beach Subdivision, reducing the size of the Restricted Use Area (RUA) at Access Point 1(C) by 1,000 linear feet, adding an ADA use area at Access Point 2 and additional vehicular beach access areas at Access Point 6 and Access Point 13, updating the Beach Access and Parking Plan in Appendix A, and modifications to the Beach Access Maps in Exhibit C. The document submitted to the GLO by the City included proposed changes to the Plan previously adopted in City Ordinance Numbers 23-030, 23-038, 23-039, and 23-071.

Some, but not all of the changes were later formally adopted as amendments to the City's Plan by City Council on October 2, 2024 in Ordinance No. 24-059, with changes in response to public comments. The amended Plan formally adopted by City Council did not include the reduction of the RUA by 1,000 linear feet, the addition of the new ADA-only vehicular beach area at AP 2, or the additional vehicular beach area at AP 6.

The City is a coastal community in Galveston County, located on Galveston Island and bordering West Bay, Galveston Bay and the Gulf of Mexico. The City's Dune Protection and Beach Access Plan was first adopted on August 12, 1993, and most recently amended to adopt a Beach User Fee (BUF) increase at Seawall Beach Urban Park, which was conditionally certified by the GLO as consistent with state law effective March 4, 2021. The conditional certification status was renewed on October 22, 2021 and June 3, 2022 in Texas Register postings. The amendments to adopt a BUF increase at Seawall Beach Urban Park were conditionally certified because the City was not in compliance with certain beach access requirements under its Plan. The City has since met the requirements, and those amendments regarding the BUF increase are now fully certified as consistent with state law. During the time its Plan was conditionally certified, the City continued to restore the public's ability to access and use the public beach. The noncompliance issues noted in the previous Compliance Plan have been resolved, and many of those resolutions are memorialized in the City's proposed amendments to Appendix A and Exhibit C of the Plan.

ANALYSIS OF PLAN AMENDMENTS AND GLO'S AMENDMENT TO 31 TAC §15.36.

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 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).

The amendments to the City's Plan include a variance from 31 TAC §15.6(f) that allows an exemption from the prohibition on the use of concrete under a structure located within 200 feet of the line of vegetation in an eroding area, under limited circumstances. To qualify for an exemption, the proposed or existing use of the structure is required to be multiple-family or commercial, and the structure must have an elevated, reinforced concrete deck at or above Base Flood Elevation. In addition, the proposed or existing structure must be designed, built, rented, or leased to be occupied as an attached, multiple-family residential living unit at least five stories in height, include multiple-family residential living units, be constructed at least in part behind the Galveston seawall, and utilize a stormwater detention system that mitigates peak water runoff on the development site. Exemption requests must be submitted to the Development Services Department and include stamped engineering drawings dated within 12 months of the submittal date, a statement of explanation for the request, documentation of the need to use reinforced concrete instead of fibercrete underneath the structure, and a demonstration that the above provisions will be met. The City will assess a special concrete maintenance fee to be used to pay for the clean-up of concrete from the public beach near the property, should the need arise.

The variance is limited in scope and application to only one potential property, which is located partially behind the seawall. The City is requesting an exemption to the prohibition on concrete beneath a structure within 200 feet of the line of vegetation in an eroding area because of demonstrated concerns that fibercrete would not provide adequate structural support for a robust stormwater detention system under the footprint of a large multiple-family or commercial structure. The City has indicated that the variance would allow for a proposed development on a single property to be constructed with appropriate stormwater detention in compliance with City stormwater detention criteria, which mandates one-acre-foot-per-acre in areas where detention is necessary. This equates to essentially one foot of water storage depth across the entire tract that is required to be stored on site while the receiving infrastructure drains out prior to site discharge. For the single property where the variance will apply, all site drainage will be required to be designed to collect under the building with sufficient depth that requires structurally adequate means of containing and storing that volume and water height. Fibercrete is unable to withstand lateral forces that a detention volume of this quantity would have on the structure and surrounding soil. A robust and effective stormwater detention system is a necessary component of coastal development and prevents further erosion of the beach and dune system, which is particularly important in areas adjacent to or partially behind a seawall or other hard structure.

The City also indicated that the proposed development will include a public beach access walkway and the addition of twenty-seven (27) public beach access parking spaces, which will enhance public beach access in this area.

In adopting the rule, the GLO considered the multitude of conditions that must be demonstrated for an exemption to be granted, the limited geographical scope of the variance, the requisite location partially behind the seawall, and the positive impact of a robust and effective stormwater detention system that minimizes impacts to the beach and dune system.

In addition to the variance, the amendments allow vehicles to be prohibited from 1,300 linear feet of beach at Access Point (AP) 7 - Sunny Beach Subdivision. Before vehicles can be prohibited from the beach, public beach access parking must be provided in the nearby public parking lot that will accommodate 92 cars (including 7 ADA spaces). In addition, 330 feet of overflow parallel parking (16 parking spaces, 7 of which will be ADA spaces) will be provided adjacent to the 8 Mile Road right-of-way between the parking lot and the beach. Pedestrian beach access from the parking areas will be via a sidewalk connecting the parking areas to the beach. In addition, a 100-foot-wide turnaround will be available on the beach at the seaward end of 8 Mile Road to allow beachgoers to drop off beach gear, non-motorized watercraft, fishing equipment, and people with mobility concerns.

The proposed modification to beach access meets the criteria in 31 TAC §15.7(h)(1), which states that when vehicles are prohibited from the beach, beach access and use is presumed to be preserved if parking on or adjacent to the beach is adequate to accommodate one car for each 15 linear feet of beach, ingress/egress access ways are no farther than 1/2 mile apart, and signs are conspicuously posted which explain the nature and extent of vehicular controls, parking areas, and access points, including access for persons with disabilities. The City has committed to providing the required beach access signage at this access point before vehicular prohibitions occur and will also conduct quarterly inspections of the signage and replace it as needed. The construction of the public parking lot and pedestrian access pathway to the beach are required to be authorized by a beachfront construction certificate and dune protection permit issued by the City, constructed and available to the public, and the required beach access signage must be conspicuously posted before the City implements the proposed vehicular prohibition at AP 7. The City is required to manage and maintain the off-beach parking and pedestrian access pathway in good condition for the beach to remain closed to vehicular traffic. The City is required to maintain the off-beach parking and pedestrian access pathway in perpetuity as long as the vehicular beach restriction remains in place, or the City must restore vehicular access to the beach.

The proposed amendments included a reduction to the size of the Restricted Use Area (RUA) at AP 1(C) by 1,000 linear feet and authorized a new ADA-only vehicular beach area at AP 2 and added additional vehicular beach areas at AP 6 and AP 13. The RUA is a 2,640-foot-long stretch of beach adjacent to the east end of Stewart Beach that is open to vehicles for persons with disabilities displaying an ADA placard, people who are fishing, or people who are launching non-motorized personal watercraft. The RUA is also accessible to pedestrians from an adjacent off-beach parking area. In response to public comments, the City has removed any proposed amendments to their Plan related to the reduction of the RUA by 1,000 linear feet, the addition of the new ADA-only vehicular beach area at AP 2 in Stewart Beach, and the additional vehicular beach area at AP 6 in their formal approval of the amended Plan. Therefore, in regard to the RUA, the City's Plan will remain unchanged.

The proposed Plan amendments still include the addition of a new 350-foot section of vehicular beach at AP 13 - Pocket Park #3. The conversion of a pedestrian-only beach to vehicular beach at AP 13 is in addition to the existing required off-beach parking lot with a minimum of 273 spaces at this access point.

Since the existing RUA is open to vehicles only as a special use area for persons with disabilities, saltwater fishermen, and the launching of non-motorized personal watercraft, an off-beach parking area and pedestrian beach access pathway area is already required and provided at AP 1(C) - Area west of the Islander East to eastern boundary of Stewart Beach Park. The City specifies in the amended Plan that 143 parking spaces are available at AP 1(C) and also made changes to the parking areas at AP 1(A) - Beachtown Development and AP 1(B) - Palisade Palms to reflect the actual, verified number and location of the parking spaces at these access points, and incorporated previous changes included in City Ordinance No. 11-037. Ordinance No. 11-037 was adopted by City Council on May 26, 2011 and consisted of on-beach and off-beach parking and pedestrian access requirements for AP 1(A), AP 1(B), and AP 1(C) that were necessary for GLO to certify the City of Galveston Beach Access Plan as consistent with state law at that time.

At AP 1(A), the Plan amendments add an on-beach parking area with a minimum width of 480 feet and a minimum number of 101 on-beach parking spaces, reduce the number of parking spaces in the off-beach parking lots from 295 spaces to 161 spaces to reflect the actual capacity of the parking lots, and add 46 off-beach parking spaces throughout the subdivision. Therefore, the number of parking spaces reflected in the Plan at AP 1(A) increased from 295 off-beach spaces to a total of 308 on-beach and off-beach spaces, combined. The number of off-beach parking spaces at AP 1(B) increased from 108 spaces to 116 spaces, and one off-beach parking area with a minimum of 143 spaces was added in the Plan to AP 1(C). City Ordinance No. 11-037 requires a total of 610 parking spaces at these access points. The Plan amendments provide a total of 567 parking spaces at APs 1(A), 1(B), and 1(C), which is 43 spaces short of the required number of spaces. To accommodate for this deficit, 50 additional parking spaces have been added to the free parking area at AP 2 - Stewart Beach Park. The City confirmed that they verified that the parking spaces proposed for APs 1(A), 1(B), 1(C), and in the free parking area at Stewart Beach Park are available on-the-ground. The free parking area at Stewart Beach must remain accessible year-round and include signage that easily identifies the area.

The GLO notified the City of numerous beach access and parking compliance concerns in 2018. Since that time, the City has been working to achieve compliance with the beach access provisions in its Plan. The City was required to develop a Compliance Plan that outlined the compliance issues and established timelines for resolution. After the City provided an adequate Compliance Plan and achieved partial compliance, the GLO conditionally certified the City's Plan and later renewed the conditional certification status on October 22, 2021 and June 3, 2022 in Texas Register postings. On February 1, 2023, the GLO notified the City that the outstanding compliance issues had been resolved since the City had demonstrated full compliance with all beach access and parking concerns noted in the Compliance Plan and submitted a Compliance Maintenance Plan requiring quarterly signage inspections and annual beach access and parking inspections. In addition to the amendments described above, the GLO fully certifies the amendments to the Plan that were published in the February 26, 2021 edition of the Texas Register. The Plan amendments include updates to the Beach Access Plan in Appendix A and to the Beach Access Maps in Exhibit C to reflect the actions taken by the City to resolve the compliance issues. The City is required to maintain the parking areas and pedestrian access pathways in the Beach Access Maps by conducting regular inspections and taking corrective action as needed, as agreed in the Compliance Maintenance Plan provided to the GLO on February 8, 2023.

The Plan amendments also specify that 1,993 public beach access parking spaces are available at AP 3 - Seawall Beach Urban Park, which is 266 spaces short of the 2,259 spaces previously required in the City's Plan. The size of the free parking area at AP 2 - Stewart Beach Park has been increased by an additional 300 spaces to accommodate for the required 266 spaces, bringing the total number of parking spaces in the free parking area to 600 spaces, which includes the 50 spaces added to the free parking area to accommodate the deficit of parking for APs 1(A), 1(B) and 1(C) as described above in reference to City Ordinance No. 11-037. In the future, 34 parking spaces are available in the free parking area at Stewart Beach for the City to relocate additional required parking from the Seawall Beach Urban Park as needed to make space on the seawall for beach access amenities and public safety.

The Plan amendments reduce the number of off-beach parking spaces at AP 9 - Pocket Park #2 from 352 spaces to 265 spaces to reflect the actual capacity of the parking lot. To accommodate the deficit in parking, 63 of the required spaces were relocated to AP 8 - Beachside Village, and 24 of the required spaces were relocated to AP 15(A) - Pirates Beach Subdivision. In total, 352 parking spaces are available in these three locations. The location of the off-beach public beach access parking at AP 8 - Beachside Village Subdivision was also changed from Butterfly Street to locations on streets throughout the subdivision.

The Plan amendments reduce the number of off-beach parking spaces at AP 12 - Bermuda Beach Subdivision from 211 spaces to 87 spaces, distributed on John Reynolds Road, John Reynolds Circle, and Jane Road to reflect the actual verified amount and location of the parking spaces determined during the compliance process. To accommodate the deficit in parking, the on-beach parking area at Pabst Road was expanded from 150 linear feet to a minimum of 564.2 linear feet, which accommodates a minimum of 124 parking spaces.

The Plan amendments also include administrative changes related to updating non-substantive language for consistency with 31 TAC Chapter 15.

RESPONSE TO PUBLIC COMMENTS

During the 30-day public comment period, at least 25 commenters requested a public hearing, which required the GLO conduct a public hearing pursuant to Texas Government Code §2001.029. The public hearing was originally scheduled for July 16, 2024, at 823 Rosenberg, 2nd Floor, Galveston, Texas, and the public comment period was extended until the conclusion of the public hearing. Notice of the public hearing and the public comment period extension was provided in the July 12, 2024, issue of the Texas Register (49 TexReg 5197). Due to Hurricane Beryl, the public hearing was postponed to August 6, 2024, at 823 Rosenberg, 2nd Floor, Galveston, Texas, and the public comment period was extended to 11:59 PM August 6th. Notice of the public hearing and public comment period extension was posted in the July 26th issue of the Texas Register (49 TexReg 5577) and on the City of Galveston's website and social media pages.

The GLO received 379 comments during the public comment period. Comments were received by residents and visitors of the City of Galveston, state of Texas and nationwide, and from groups such as the Surfrider Foundation Galveston Chapter and Texas Conservation Alliance. A majority of the comments objected to the proposed amendments, specifically the use of reinforced concrete in the area within 200 feet from the line of vegetation, the prohibition of vehicles from the beach access at Access Point 7 - Sunny Beach Subdivision and reducing the size of the Restricted Use Area at Access Point 1(C) by 1,000 linear feet.

243 commenters expressed concerns that the proposed amendments were intended to appease private developers and prioritize their economic gain over public beach access, and 40 commenters stated that the amendments were not in the best interest of the public. One commenter stated that City staff made statements that hotel developers would not proceed with construction unless the RUA in front of the proposed development was removed, and the beach was pedestrian-only. Pursuant to the Dune Protection Act (TNRC § 63), Open Beaches Act (TNRC § 61), and 31 TAC Chapter 15, local governments have the authority to amend their beach access and dune protection plans at their discretion as long as the amendments comply with TNRC §§ 61 and 63, and the GLO's Beach/Dune Rules (31 TAC § 15). The GLO does not have jurisdiction over the reasons why a local government may propose to remove vehicular beach access, as long as the appropriate parking, signage and perpendicular beach access are provided according to the presumptive beach access criteria in 31 TAC §15.7. GLO has reviewed the City's proposals and found that they comply with state rules. No change was made in response to these comments.

232 commenters stated that the Plan amendments do not meet the requirement of Texas laws protecting and prioritizing public beach access, including the Texas Open Beaches Act and The Texas Constitution, Article 1 Section 33. A person representing the Surfrider Foundation Galveston Chapter also expressed concerns that private development proposal adjacent to the public beach often result in public access being relocated to off-beach parking areas and that vehicular access and on-beach parking may eventually be eliminated on many Galveston beaches, which does not align with the intent of the OBA and the Texas Constitution. The GLO disagrees with the comments that the proposed Plan amendments do not meet the requirements of Texas laws. Under The Texas Constitution, Article 1, Section 33(c), the legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments. TNRC §61.022(b) allows a local government to regulate vehicular traffic as long as such regulation is consistent with the OBA and 31 TAC Chapter 15. The procedures set forth in 31 TAC §15.7 provide that a local government, upon certification by the GLO following notice-and-comment rulemaking, can prohibit vehicular traffic on areas of the beach as long as the public's access to and use of the public beach is preserved or enhanced according to the presumptive criteria in 31 TAC §15.7(h). The criteria in 31 TAC §15.7(h)(1) are that when vehicles are prohibited from the beach, beach access and use is presumed to be preserved if parking on or adjacent to the beach is adequate to accommodate one car for each 15 linear feet of beach, ingress/egress access ways are no farther than 1/2 mile apart, and signs are conspicuously posted which explain the nature and extent of vehicular controls, parking areas, and access points, including access for persons with disabilities.

Prohibition of Vehicular Beach Access at Access Point 7

The following comments were provided specifically in response to the proposed prohibition of vehicular beach access at Access Point 7 - Sunny Beach Subdivision.

Sixty-two (62) commenters, mostly property owners in Beachside Village, were in support of the proposed Plan amendment and of the prohibition of vehicular beach access at Access Point 7 - Sunny Beach Subdivision. Some commenters support the prohibition of vehicular beach access at Access Point 7 due to concerns for safety and environmental damage caused by vehicular beach access.

One commenter expressed support for limiting how beachgoers access the beach and said that the City is not limiting use of the beaches, just access to them. The GLO disagrees with this comment because the City's Plan preserves the public's right to access and use the public beach through the availability of off-beach parking with pedestrian access in accordance with the requirements for preserving access in 31 TAC §15.7(h).

Three commenters stated that the proposed closure seems like a plan to limit public beach access and create private beaches, and one commenter stated that private property owners are not at liberty to restrict beach access or to cause beach access to be restricted to the public. Another commenter stated that the ability to use a vehicle on a beach is valued by both residents and tourists and sets Texas apart from other states. The GLO agrees that vehicular beach access is unique and valued, and that private property owners do not have the authority to restrict public access to the public beach. However, local governments have the ability to regulate vehicular beach traffic under 31 TAC §15.7 as long as such regulation is consistent with the OBA and Beach/Dune Rules. The GLO disagrees with the comments that the proposed closure is a plan to create private beaches because the City's Plan preserves and enhances the public's right to access and use the public beach through the availability of off-beach parking with pedestrian access.

One commenter stated that vehicular access adjacent to the beach provides the public with an opportunity to transport people and gear to the beach, and the proposed off-beach parking and drop-off point at Access Point 7 will not facilitate this same ease of access and is inconsistent with 31 TAC §15.7(h). Multiple commenters also stated that the proposal to replace public parking on the beach with an off-beach parking lot 700 feet from the beach fails to meet the legal requirements, was too far away, and that the parking spaces in the off-beach parking lot at Access Point 7 are too small. Other commenters also stated that the plan to restrict vehicular access at Access Point 7 does not preserve or enhance beach access, violates the Open Beaches Act, and will impact hundreds to thousands of beachgoers. The GLO disagrees with the comments that the proposed amendments do not preserve or enhance beach access and violate the OBA. The OBA (TNRC §61.022(c)) allows a local government to regulate vehicular traffic as long as such regulation is consistent with the OBA and the Beach/Dune Rules. The OBA (TNRC §61.011(d)(3)) also authorized the commissioner to promulgate rules regarding local government prohibitions of vehicular traffic on public beaches, provision of off-beach parking, and other minimum measures needed to mitigate for any adverse effect on public access and dune areas. The procedures set forth in 31 TAC §15.7 provide that a local government, upon certification by the GLO following notice-and-comment rulemaking, can prohibit vehicular traffic on areas of the beach as long as the public's access to and use of the public beach is preserved or enhanced according to the presumptive criteria in 31 TAC §15.7(h).

During the permitting process for the parking areas, the City will assess that the parking lot meets any applicable requirements. The City stated that they follow vehicular engineering standards outlined in the Institute of Transportation Engineering's Transportation Handbook to determine the appropriate size of parking spaces, and the City ensures standards to the best of its ability by containing information in City Ordinances and Land Development Regulations.

One commenter expressed concerns that prohibiting vehicular access from the beach at Access Point 7 will create an access impediment to people with disabilities and other individuals who wish to access the water with non-motorized watercraft. However, the availability of a 100-foot-wide turnaround on the beach at the seaward end of 8 Mile Road will allow beachgoers to drop off beach gear, non-motorized watercraft, fishing equipment, and people with mobility concerns, and the City included this in their proposal to further accommodate access for people with disabilities and beachgoers launching non-motorized watercraft or fishing., In addition, the off-beach parking area includes seven ADA spaces and the overflow parallel parking includes an additional seven ADA spaces. In addition to these accommodations for persons with mobility concerns, the proposed modification to beach access meets the presumptive criteria for preserving beach access in 31 TAC §15.7(h)(1).

Removal of 1,000 linear feet from the RUA

Numerous comments were received specifically in response to the proposed reduction of the size of the Restricted Use Area (RUA) at Access Point 1(C) by 1,000 linear feet and the addition of an ADA-only use area at Access Point 2 and additional vehicular beach access areas at Access Point 6 and Access Point 13. These comments are summarized below and do not require a response since the City is no longer proposing to reduce the RUA at AP 1(C) by 1,000 linear feet or to add an ADA-only use area at AP 2 or an additional vehicular beach access area at AP 6. As the City is removing the proposed sections referenced above from their proposed Plan amendments, the GLO does not need to respond to each comment solely related to those proposed amendments.

Forty-one (41) commenters expressed concerns that the 500 feet of new vehicular beach access being added to Pocket Park 1 would be open to all vehicles and would not be restricted to only vehicles operating under restricted uses. Several commenters stated that people with disabilities would be losing their vehicular access and that the proposed changes would restrict access to areas crucial for people with disabilities or pose an undue burden for people with disabilities. Another commenter stated that the proposal violated 31 TAC §15.8(k) as the plan failed to establish, preserve, and enhance access for persons with disabilities and contravened the Texas Accessibility Guidelines.

One commenter requested that an additional 500 linear feet of access be added to the proposed ADA-only vehicular access area at Stewart Beach in addition to what was proposed to maintain a continuous and accessible beachfront for persons with disabilities. One commenter stated that their husband is disabled, and that AP 1(C) is the only access point they've been using and expressed concerns about being able to access other areas. One commenter asked the GLO to consider if the proposed amendments include any potential violations to the Americans with Disabilities Act (ADA).

Several commenters expressed concerns about the lack of ADA accessible amenities at Pocket Park 1 not being an adequate substitute for the accessible amenities (mobi-mats, beach wheelchairs, and restrooms) located at Stewart Beach adjacent to the RUA. One commenter also expressed concerns about the lack of new amenities provided by the City at Pocket Park 1. One commenter stated that they spoke to over 300 people who indicated that off-beach parking and a mat would not replace on-beach access for persons with disabilities.

One commenter stated that existing beach users are aware of the location of the RUA and that it is easily accessed by road. Another commenter stated that the addition of vehicular areas at Stewart Beach and Pocket Park 1 without clear signage or improvements does not enhance beach access.

Several commenters expressed concerns regarding the flooding, erosion, and soft sand within the area where the ADA-only vehicular beach area would be located at AP 2. One commenter stated that the area is located near channeled runoff from the Seawall and is often underwater at high tide. Another commenter stated that locating the ADA parking area in an area subject to flooding would result in reduced days of the year for access.

Several commenters expressed concerns about the reasoning behind splitting up the RUA and stated that it seems like a plan to force local beachgoers further away from developed areas or privatize the beach. One commenter stated that there is not any available public parking behind the current RUA.

Forty-two (42) commenters expressed concerns that the 500 feet of proposed ADA-only vehicular beach area at Access Point 2 - Stewart Beach would not allow people who are fishing or launching motorized personal watercraft. Three commenters also emphasized the importance of the RUA as a safe area for unloading equipment associated with water sports or fishing, and another commenter expressed concerns about people that are fishing or launching non-motorized watercraft merging with other beachgoers as a potential safety risk.

Several commenters stated that police reports do not show any incidents involving vehicles and pedestrians at the RUA within the past five years, and that the City's proposal to reduce the linear footage of the RUA was based on biased surveys. Another commenter said the City stated that the RUA is being reduced because beach users are driving on and destroying dunes, there are safety concerns with pedestrians, and off-beach parking and mats can replace access for persons with disabilities. The commenter further stated that this stretch of beach is one of the safest due to its location adjacent to Stewart Beach and East Beach and close proximity to medical support facilities.

One commenter provided information regarding the usage of the RUA according to Park Board visitor logs from March 2022 to May 2023 and stated that over a period of 62 logged days, 688 vehicles accessed the RUA, which consisted of 97 disabled veterans, 547 people with disabilities, 357 people fishing, and 25 people launching non-motorized watercraft. This commenter also stated that on Memorial Day in 2023, approximately 300 people used the RUA while only 160 beach goers visited the pedestrian-only beach between Stewart Beach and East Beach Park.

One commenter stated that the GLO's August 4, 2023 letter to the City said that the entire linear footage of the RUA must be preserved and/or relocated to another area of east beach to ensure continued access for persons with disabilities, saltwater fisherman, and launching of non-motorized personal watercraft. The commenter asked the GLO to stand by this prior response, and to explain how the GLO's stance may have changed.

One commenter presented a photograph of dunes with apparent damage from vehicular traffic and stated that the photograph was taken at the entrance to the Grand Preserve where golf carts drive over the dunes. Under 31 TAC §15.7(h)(5)(B), in areas where vehicles are prohibited from driving on and along the beach, golf carts must also be prohibited. Golf carts are only authorized to drive on the beach in the RUA if they are for an authorized restricted use or show an ADA placard. Any damages to dunes without a permit issued by the local government are a violation of the Dune Protection Act. According to the City, the Police Department and Marshall's office routinely patrol this area to ensure all vehicles within the RUA are operating under one of the allowable restricted uses. Violations of the DPA or the RUA should be immediately reported to the police department.

One commenter referenced the terms of the judgement issued on June 5, 1964, in the matter of Galveston East Beach, Inc. v State of Texas (Cast Number 97,893, in the District Court of Galveston County, Texas 10th Judicial District)(the "1964 Judgement"), and stated that the 1964 Judgement includes standards for this area of beach that may be superior to and take precedence over certain conflicting or limiting provisions in the City's Plan and ordinances. The commenter stated that the 1964 Judgement fully protects vehicular traffic, which is being restricted in this area, and that the 1964 Judgement predates and could be superior to the TAC provisions allowing the restrictions. The commenter requested the GLO revisit the implications of the 1964 Judgement and suggested the City's Plan be modified to eliminate any provisions contrary to the Judgement and to include certain provisions of the Judgement not currently included within the Plan.

The commenter also stated that camping and boating are both fully protected in the 1964 Judgement and objected to their restrictions through other City ordinances.

Variance for the use of reinforced concrete

One commenter, in support of the exemption, stated that the purpose of the variance is to create a uniform set of rules that will apply to the entire property, since reinforced concrete is already allowable in the half of the site behind the seawall. GLO made no change in response to this comment.

The following comments were provided in response to the proposed variance from 31 TAC §15.6(f) that would allow an exemption from the prohibition on the use of concrete under a structure located within 200 feet of the line of vegetation in an eroding area.

Numerous commenters stated that this is the fastest eroding beachfront on Galveston Island and adding concrete further threatens this beach and will cause or accelerate erosion rates at this property and adjacent properties, and 232 commenters suggested that the development footprint could be decreased instead of locating the development in an area subject to exacerbated erosion. Several commenters expressed concerns that the variance will allow another large complex structure to be built on a highly sensitive, eroding beach, where erosion is exacerbated by the end of the seawall. Two commenters also expressed concerns about the variance negatively impacting nearby beach nourishment projects. The GLO agrees with commenters that the area of beach where the exemption would apply has the highest erosion rate on Galveston Island based on the data from the Bureau of Economic Geology. However, GLO notes that the exemption included in the City's Plan only allows a variance from 31 TAC §15.6(f) to allow reinforced concrete instead of fibercrete in an eroding area within 200 feet of the line of vegetation under certain limited conditions. The TAC currently allows development within 200 feet of the line of vegetation; only the type of material (reinforced vs. unreinforced concrete) to be placed under the footprint of the structure is being considered with this variance.

Four commenters referenced the City of Galveston's 2011 Comprehensive Plan, which states that most of Galveston's beachfront shoreline west of Stewart Beach is eroding at rates of 5-10 feet per year on average. The commenters suggested that the City respond proactively and ensure future development is sustainable and resilient and said that adding concrete in this area does not seem sustainable or resilient, which are the stated goals of the City. Another commenter suggested that the City consider if the proposed exemption is sustainable given the impacts of sea level rise and climate change on beach erosion, high tides, and flooding in Galveston. Several commenters expressed concerns about this variance setting a precedent for allowing large high-rises to continue spreading westward and for future developer requests for these types of variances. GLO shared these comments with the City and they relayed that all ordinances and resolutions were reviewed and approved by City Council members and all applicable City departments. Any future proposed variances will be evaluated individually by the GLO in accordance with the requirements of 31 TAC §15.3(o)(5).

Several commenters questioned the reasoning behind the City proposing this variance. Two commenters stated that it doesn't seem equitable to make an exception for one developer and to overlook the good of the public to benefit one individual. Another commenter questioned deviating from the existing Plan for one property when the rules and regulations of the TAC are written to protect natural resources and protect public health. The GLO has no involvement in determining why a local government may propose to amend their beach access plan, but instead is required to determine if the amendment proposed by the City is consistent with state law.

Twelve commenters stated that the GLO is required to protect the public beach from erosion and adverse effects on public access by regulating beachfront construction and expressed concerns about the proposed variance being contrary to the stated purposes of the Beach/Dune Rule and TNRC §§ 61 and 63. One commenter stated that the proposed exemption is inconsistent with TNRC §61.011(d)(2) which mandates that the Commissioner will promulgate rules for the protection of the public easement from erosion or reduction caused by development or other activities on adjacent land and beach cleanup and maintenance. The GLO has determined that the proposed variance meets the requirements of state rules since the City provided a reasoned justification in writing in accordance with 31 TAC §15.3(o)(5) demonstrating that the variance is equal to or more protective of the goals and policies in 31 TAC §15.1. In adopting the rule, the GLO considered the multitude of conditions that must be demonstrated for an exemption to be granted, the limited geographical scope of the variance, the requisite location partially behind the seawall, and the positive impact of a robust and effective stormwater detention system that minimizes impacts to the beach and dune system. In addition, the City will assess a special concrete maintenance fee to be used to pay for the clean-up of concrete from the public beach near the property, should the need arise.

Two commenters also stated that the proposed exemption is unreasonable and inconsistent with TNRC §61.011(c), which provides that the commissioner shall strictly and vigorously enforce the prohibition against encroachments on and interferences with the public beach easement, and that the proposed exemption will knowingly cause a loss of public resources for short-term private benefit. The GLO disagrees with the commenters since the proposed variance does not allow or authorize an encroachment or interference with the public beach easement.

One commenter stated that the proposed stormwater detention measures at the site are insufficient as mitigation, as it will not stop or slow the continued erosion caused by storm surge, wave runup, or sea level rise from the Gulf. In the City's reasoned justification for the proposed variance, the stated purpose of the stormwater detention system was not to stop or slow erosion caused by the Gulf, but rather to detain and redirect the flow of stormwater runoff away from the beach to protect the dune and beach profile. According to the City's formal Plan amendment submission dated June 16, 2023, the use of fibercrete would not be structurally sufficient to adhere to the stormwater detention requirements for a multi-story building. The City's June 16th submission further states that the site is being required to collect, detain, and redirect stormwater at a volume of one acre foot per acre, which is a requirement under City of Galveston stormwater detention criteria.

Numerous commenters expressed concerns about a storm washing reinforced concrete onto the public beach and threatening public access and safety. Two commenters also expressed concerns about taxpayers needing to pay for cleanup costs when the concrete ends up on the public beach. Under TNRC §61.067, it is the duty of the GLO to clear debris from a public beach located in an area where there is a declared disaster if the debris is the result of the event that is the subject of the disaster declaration. In addition, the amendments include a special concrete maintenance fee to be used to help pay for the clean-up of concrete from the public beach near the property, should the need arise.

Two commenters stated that a storm could damage the entire building and wash it onto the beach, and one commenter expressed concerns about erosional structural damage to any development authorized under the exemption and subsequent seawall damage. One commenter stated that concrete could end up as debris on the road, making it hard for residents to access their homes after a storm. One commenter provided a photograph of the Riviera Condominiums, and stated that its concrete foundation has been compromised and that they anticipate this being a similar issue if another development is constructed in a highly eroding area. One commenter stated that when structural development is located in eroding areas and the structure fails, it negatively impacts beach habitat and recreational public beach resources, which are preserved in the public trust for all Texans. The commenter also stated that erosion will impact the proposed development during its economic lifespan, resulting in encroachment towards the Gulf, loss of the public beach seaward of the development and structural failure of the proposed concrete. The GLO agrees that construction in eroding areas is more vulnerable and has a greater potential to negatively impact the beach and dune system. Under TNRC §33.067 and 31 TAC §15.17, local governments were required to develop Erosion Response Plans to reduce public expenditures for erosion and storm damage losses to public and private property. All construction within city limits must adhere to the building set-back line requirements under the City's Erosion Response Plan, which were implemented to help mitigate storm damage due to erosion. The proposed variance does not change where development can be located in eroding areas. Rather, it allows a different type of material (reinforced concrete instead of unreinforced fibercrete) to be used within 200 feet of the line of vegetation under certain limited circumstances.

Nine commenters, including the Texas Conservation Alliance, stated that this stretch of beach is important habitat for Galveston's genetically unique ghost wolves, along with other area wildlife, and expressed concerns that allowing variances such as this will further threaten wildlife access to this habitat. Another commenter stated that the proposed variance will rob sea turtles of their right to life, safe haven, and nesting sites. The Beach Dune rules do not include provisions for habitat protections for endangered species or other species of concern.

One commenter stated that the area to which the exemption would apply is located in a high hazard area according to the National Flood Insurance Program (NFIP), and that construction in high hazard areas is guided by the International Building Code (IBC), and the City adopted the IBC as its construction standard in 2023. According to the commenter, the IBC requires concrete slabs used for parking, floors of enclosures, landings, decks and walkways to be structurally independent of buildings, not more than 4 inches thick, with no turned-down edges, no reinforcing, isolated from pilings and columns, and with control or construction joints spaced no more than 4 feet apart. Alternatively, slabs must be self-supporting capable of remaining intact under flood conditions. The commenter expressed concerns that the proposed variance from 31 TAC §15.6(f) is also a variance from IBC construction standards and that engineering safety implications are being neglected with this proposed exception. According to the City, structures located within a VE Special Flood Hazard Area are evaluated by both the City of Galveston's Coastal Resources Division and Building Division to ensure that the construction is compliant with all FEMA regulations and the City of Galveston's flood zone ordinances. The City has stated that the Building Division will ensure all applicable IBC requirements contained in city ordinances are met by issuing appropriate building permits and conducting required inspections.

One commenter expressed concerns that the proposed variance from 31 TAC §15.6(f) will potentially result in a substantial increase in flood insurance rates for island property owners. Under 31 TAC §15.6(e)(2), a local government is required to inform the GLO and FEMA regional representative before it issues any variance from FEMA regulations or allows an activity done in variance of FEMA's regulations found in Volume 44 of the Code of Federal Regulations, Parts 59-77, as variances may affect a local government's participation in the National Flood Insurance Program. In the City's formal Plan amendment submission dated November 22, 2023, the City stated that the City's Floodplain Manager has determined that the requested variance from 31 TAC §15.6(f) would not be a variance of the regulations found in Volume 44 CFR, Parts 59-77 and that the proposal is not in conflict with the Galveston Flood Plan Management ordinance.

Miscellaneous Public Comments

Additional comments received during the public comment period are summarized below.

40 commenters stated that the City of Galveston did not hold its traditional public comment period for this amendment. According to the City, the amendment requests were taken in front of the Galveston City Council on April 27, 2023, May 13, 2023, May 25, 2023, October 27, 2023, March 21, 2024 and October 2, 2024, and in front of the Planning Commission on October 3, 2023 and March 5, 2024. The City stated that the Planning Commission and City Council meetings provided an opportunity for public comments, which ensured compliance with the Texas Open Meetings Act.

One commenter stated that the free parking area at Access Point 2 - Stewart Beach is inaccessible due to the surrounding drainage feature and that there is a lack of signage and formal parking. Another commenter stated that the free parking area is routinely flooded and that beachgoers are unable to park without getting stuck. The GLO requested the City respond directly to these comments and according to the City, a footpath is present across the drainage channel south of the Stewart Beach free parking area and signage is currently in place identifying the free parking area. The City is required to maintain the parking areas and signage identifying the parking areas included in the City's beach access plan by conducting regular inspections and taking corrective action as agreed to in the Compliance Maintenance Plan provided to the GLO on February 8, 2023. According to the Compliance Maintenance Plan, the City will conduct an on-site verification of public signage and ensure access points and parking areas are in place and effectively providing access, and will attempt to implement any necessary corrective actions and replace any missing signage within 90 days of the inspections report. The GLO will monitor compliance with the Plan.

Some comments did not directly relate to this rulemaking, and no changes were made in response to these comments. One commenter suggested using signs warning of rattlesnakes in the dunes. Another commenter asked if the elimination of seasonal access between Access Points 33 and 34 and if the elimination of vehicular access at Access Point 33 was included in the proposed Plan amendment. The proposed amendments do not include any changes to vehicular beach access at Access Points 33 and 34. No changes were made in response to these comments.

One commenter asked if beach user fee revenues are used to maintain the beach, such as trash pickup, or if they only cover the expenses for added amenities and improvements. Under 31 TAC §15.8, local governments may only charge beach user fees in exchange for providing beach-related services, which is defined in 31 TAC §15.2(10) as including sanitation and litter control and beach maintenance.

One commenter stated that charging fees to access restricted areas at Stewart Beach raises questions about compliance with beach access plan, and that public beaches are meant to be open and accessible without fees. This comment is not directly related to this rulemaking as a new beach user fee is not proposed. Under 31 TAC §15.8, local governments may charge beach user fees in exchange for providing beach-related services if the local government has a state approved dune protection and beach access plan that includes a beach user fee plan. The City's Plan includes an approved beach user fee plan, and the City is allowed to charge beach user fees in accordance with their Plan.

One commenter stated that the closure of facilities on the seawall during daylight hours in the summer inconveniences beach users and that there is a lack of tangible improvements on the seawall despite increased fees, aside from installed lighted bollards. This comment is not directly related to this rulemaking as the operating hours of beach facilities is not included in the City's Plan and the proposed amendments do include a change to the City's beach user fee plan.

STATUTORY AUTHORITY

The amendments are adopted under Texas Natural Resources Code §§33.602, 33.607, 61.011, 61.015(b), 61.022 (b) & (c), 63.091, and 63.121, 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 and certification of local government beach access and dune protection plans as consistent with state law.

Texas Natural Resources Code §§33.602, 33.607, 61.011, 61.015(b), 61.022 (b) & (c), 63.091, and 63.121 are affected by the proposed amendments. 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.

§15.36.Certification Status of City of Galveston Dune Protection and Beach Access Plan

(a) The City of Galveston (City) has submitted to the General Land Office a dune protection and beach access plan which was adopted on August 12, 1993 and amended on February 9, 1995, June 19, 1997, February 14, 2002, March 13, 2003, January 29, 2004, February 26, 2004, and April 12, 2012. The City's plan is fully certified as consistent with state law.

(b) The General Land Office certifies as consistent with state law the City's Erosion Response Plan as an amendment to the Dune Protection and Beach Access Plan.

(c) The General Land Office certifies as consistent with state law the City's Beach and Dune Plan as amended on January 15, 2016 by Ordinance 16-003 to increase the daily beach user fee to a maximum of $15.00 and season passes to a maximum of $50 at Stewart Beach, R.A. Apffel Park, Dellanera Park, and Pocket Parks Nos. 1-3.

(d) The General Land Office certifies as consistent with state law amendments to the City of Galveston's Dune Protection and Beach Access Plan as amended on January 24, 2019 by Ordinance No. 19-012. The amendments include an increase in the Beach User Fee on the Seawall, the adoption of updated maps in Exhibit B, and a variance for certain in-ground pools. The amendments were adopted by City Council in Ordinance No. 19-012 on January 24, 2019, which incorporated previously adopted Ordinance No. 18-005.

(e) The General Land Office certifies as consistent with state law amendments to the City of Galveston's Dune Protection and Beach Access Plan in accordance with City Ordinance No. 24-059 dated October 2, 2024. The amendments include a variance for the use of reinforced concrete, prohibit vehicular access at Access Point 7, add additional vehicular beach access area at Access Point 13 and update the Beach Access and Parking Plan in Appendix A and Beach Access Maps in Exhibit C.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 18, 2024.

TRD-202404915

Jennifer Jones

Chief Clerk and Deputy Land Commissioner

General Land Office

Effective date: November 7, 2024

Proposal publication date: June 7, 2024

For further information, please call: (512) 475-1859