TX NATURAL RESOURCES CODE

SUBTITLE B. SURVEYS AND SURVEYORS

CHAPTER 33. MANAGEMENT OF COASTAL PUBLIC LAND

SUBCHAPTER H. COASTAL EROSION


§ 33.601. DEFINITIONS.
     In this subchapter:
          (1) "Account" means the coastal erosion response account established under Section 33.604.
          (2) "Beach nourishment" means the placement of beach-quality sediment on an eroded beach to restore it as a recreational beach, provide storm protection for upland property, maintain a restored beach by the replacement of sand, or serve other similar beneficial purposes.
          (3) "Coastal erosion" means the loss of land, marshes, wetlands, beaches, or other coastal features within the coastal zone because of the actions of wind, waves, tides, storm surges, subsidence, or other forces.
          (4) "Critical coastal erosion area" means a coastal area that is experiencing historical erosion, according to the most recently published data of the Bureau of Economic Geology of The University of Texas at Austin, that the commissioner finds to be a threat to:
               (A) public health, safety, or welfare;
               (B) public beach use or access;
               (C) general recreation;
               (D) traffic safety;
               (E) public property or infrastructure;
               (F) private commercial or residential property;
               (G) fish or wildlife habitat; or
               (H) an area of regional or national importance.
          (5) "Erosion response project" means an action intended to address or mitigate coastal erosion, including beach nourishment, sediment management, beneficial use of dredged material, creation or enhancement of a dune, wetland, or marsh, and construction of a breakwater, bulkhead, groin, jetty, or other structure.
          (6) "Hard structure" means an erosion response structure such as a bulkhead, seawall, revetment, jetty, groin, or similar structure that is the functional equivalent of one of those structures.
          (7) "Institution of higher education" has the meaning assigned by Section 61.003, Education Code.
          (8) "Local government" means a political subdivision of this state.
          (9) "Project cooperation agreement" means a contract executed by the land office and a qualified project partner that explicitly defines the terms under which a study or project will be conducted.
          (10) "Public beach" has the meaning assigned by Section 61.013.
          (11) "Qualified project partner" means a local government, state or federal agency, institution of higher education, homeowners' association, or other public or private entity that enters into an agreement with the land office to finance, study, design, install, or maintain an erosion response project.
          (12) "Shared project cost" means a project cost identified by the commissioner and established in a project cooperation agreement that will be shared with a qualified project partner.

Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.602. COASTAL EROSION DUTIES AND AUTHORITY.
     (a) The land office shall implement a program of coastal erosion avoidance, remediation, and planning. The commissioner shall ensure that erosion avoidance, remediation, and planning protect the common law rights of the public in public beaches as affirmed by Subchapter B, Chapter 61.
     (b) The commissioner shall publish and periodically update a coastal erosion response plan. The commissioner shall develop the plan in coordination with state and federal agencies and local governments and provide for public input on the plan. The plan must identify critical coastal erosion areas and prioritize coastal erosion response studies and projects so that:
          (1) benefits are balanced throughout the coast;
          (2) federal and local financial participation is maximized;
          (3) studies and projects are scheduled to achieve efficiencies and economies of scale; and
          (4) the severity of erosion effects in each area is taken into account.
     (c) The commissioner may adopt rules necessary to implement this subchapter.
     (d) The commissioner shall adopt rules requiring that beach-quality sand dredged in constructing and maintaining navigation inlets and channels of the state be placed on eroding beaches or to restore eroding wetlands wherever practicable.

Added by Acts 1991, 72nd Leg., ch. 295, § 3, eff. June 7, 1991. Renumbered from § 33.601 and amended by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1405, § 1, eff. Sept. 1, 2001.

§ 33.603. COASTAL EROSION STUDIES AND PROJECTS.
     (a) The land office shall undertake coastal erosion studies, demonstration projects, and response projects if the land office receives legislative appropriations or other funding for that purpose. If reasonable and appropriate, the land office shall 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.
     (b) The studies and projects shall address:
          (1) assessment of the feasibility, cost, and financing of different methods of avoiding, slowing, or remedying coastal erosion;
          (2) beneficial placement of dredged material where appropriate to replenish eroded public beach, bay shore, marsh, and dune areas;
          (3) public beach, bay shore, and marsh nourishment or restoration projects using sediments other than material from navigational or other dredging projects;
          (4) guidelines on grain size and toxicity level;
          (5) the economic, natural resource, and other benefits of coastal erosion projects;
          (6) the protection, revegetation, and restoration of dunes;
          (7) the planting of vegetation as a means of inhibiting bay shore erosion and projects developing and cultivating disease-resistant vegetation adapted to local conditions;
          (8) the construction or retrofitting of dams, jetties, groins, and other impoundment structures, provided that the structures include sediment bypassing systems;
          (9) estimating the quantity and quality of sediment trapped by reservoirs, navigation channels, and placement areas and identification of other sediment sources;
          (10) the use of hard or soft structures on bay shorelines as a method of avoiding, slowing, or remedying erosion;
          (11) storm damage mitigation, post-storm damage assessment, debris removal, and removal and relocation of structures from public beaches;
          (12) structural shoreline protection projects that use innovative technologies designed or engineered to minimize beach scour; and
          (13) other studies or projects the commissioner considers necessary or appropriate to implement this subchapter.
     (c) An agreement between the commissioner and a qualified project partner to undertake a coastal erosion response study or project:
          (1) must require the qualified project partner to pay a specified percentage of the shared project cost that is not less than the minimum amount prescribed by Subsection (e):
               (A) before completion of the project; or
               (B) following completion of the project, in accordance with a schedule provided by the agreement; and
          (2) may contain other terms governing the study or project.
     (d) Except as provided by Subsections (b)(8) and (12), this chapter does not authorize the construction or funding of a hard structure on or landward of a public beach.
     (e) A qualified project partner must pay:
          (1) not less than 25 percent of the shared project cost if the project is a beach nourishment project on a public beach or bay shore; and
          (2) not less than 40 percent of the shared project cost if the project is any other coastal erosion response study or project, including:
               (A) a marsh restoration project; or
               (B) a bay shoreline protection project other than a beach nourishment project.
     (f) Notwithstanding Subsections (c) and (e), each biennium the commissioner may undertake one large-scale beach nourishment project on a public beach without requiring a qualified project partner to pay a portion of the shared project cost if the cost of the project does not exceed one-third of the total amount appropriated to the land office for coastal erosion planning and response.
     (g) Notwithstanding Subsection (d), each biennium the commissioner may undertake or provide funding for one or more erosion response demonstration projects if the state's portion of the shared project cost does not exceed one-tenth of the total amount appropriated to the land office for coastal erosion planning and response.
     (h) Notwithstanding Subsection (e), the commissioner may determine the percentage of the shared project cost a qualified project partner must pay for a project undertaken pursuant to Subsection (b)(11) for removal of debris or structures, or relocation of structures from the public beach; provided, however, that no money in the account may be used for a project undertaken pursuant to Subsection (b)(11) to purchase real property or reimburse a property owner for the purchase of real property.

Added by Acts 1991, 72nd Leg., ch. 295, § 3, eff. June 7, 1991. Renumbered from § 33.602 and amended by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1404, § 1, eff. June 16, 2001; Acts 2003, 78th Leg., ch. 874, § 1, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 304, § 1, eff. Sept. 1, 2005.

§ 33.604. COASTAL EROSION RESPONSE ACCOUNT.
     (a) The coastal erosion response account is an account in the general revenue fund that may be appropriated only to the commissioner and used only for the purpose of implementing this subchapter.
     (b) The account consists of:
          (1) all money appropriated for the purposes of this subchapter;
          (2) grants to this state from the United States for the purposes of this subchapter; and
          (3) all money received by this state from the sale of dredged material.

Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.605. USES OF ACCOUNT.
     (a) Money in the account may be used for any action authorized by this subchapter, except for a restoration project authorized by Section 33.613.
     (b) The commissioner must approve an expenditure from the account. In determining whether to approve an expenditure for a study or project, the commissioner shall consider:
          (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.

Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999. Amended by Acts 2005, 79th Leg., ch. 867, § 2, eff. June 17, 2005.

§ 33.606. GRANTS AND GIFTS.
     The commissioner may apply for, request, solicit, contract for, receive, and accept gifts, grants, donations, and other assistance from any source to carry out the powers and duties provided by this subchapter.

Added by Acts 1991, 72nd Leg., ch. 295, § 3, eff. June 7, 1991. Renumbered from § 33.603 by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.607. COASTAL EROSION PUBLIC AWARENESS AND EDUCATION.
     (a) The land office shall be responsible for and shall
      coordinate with other agencies to increase public awareness through public education concerning:
          (1) the causes of erosion;
          (2) the consequences of erosion;
          (3) the importance of barrier islands, dunes, and bays as a natural defense against storms and hurricanes; and
          (4) erosion avoidance techniques.
     (b) On an ongoing basis, the commissioner, in consultation with the Bureau of Economic Geology of The University of Texas at Austin and coastal county and municipal governments, shall monitor historical erosion rates at each location along the shore of the Gulf of Mexico.
     (c) The commissioner shall make historical erosion data accessible, through the Internet and otherwise, to the public and persons receiving the notice required under Section 61.025.
     (d) The Bureau of Economic Geology of The University of Texas at Austin shall make historical erosion data relating to a critical coastal erosion area available to each state agency, local government, or other person responsible for, or with jurisdiction over, the area.
     (e) A local government subject to Chapter 61 or 63 is encouraged 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. The local government shall 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.

Added by Acts 1991, 72nd Leg., ch. 295, § 3, eff. June 7, 1991. Renumbered from § 33.604 and amended by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.608. REPORT TO LEGISLATURE.
     Each biennium, the commissioner shall submit to the legislature a report listing:
          (1) each critical erosion area;
          (2) each proposed erosion response study or project;
          (3) an estimate of the cost of each proposed study or project described by Subdivision (2);
          (4) each coastal erosion response study or project funded under this subchapter during the preceding biennium;
          (5) the economic and natural resource benefits from each coastal erosion response study or project described by Subdivision (4);
          (6) the financial status of the account; and
          (7) an estimate of the cost of implementing this subchapter during the succeeding biennium.

Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.609. LANDOWNER CONSENT.
     (a) The commissioner may not undertake a coastal erosion response project on:
          (1) permanent school fund land without first obtaining the written consent of the school land board; or
          (2) 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) If the commissioner cannot determine the identity of or locate a property owner, consent is considered to have been given if:
          (1) 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
          (2) the property owner does not object on or before the 20th day after the last date notice is published under Subdivision (1).

Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.610. REMOVAL OF SUBMERGED LAND FROM APPRAISAL AND TAX ROLLS.
     (a) If the commissioner determines that land has become
      submerged by erosion or subsidence and as a result is dedicated to the permanent school fund, the commissioner may 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. The notice must include a legal description of the land.
     (b) On receipt of notice under Subsection (a):
          (1) the appraisal district shall remove the land from the appraisal roll; and
          (2) each taxing unit shall remove the land from its tax roll.

Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.611. IMMUNITY.
     (a) 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) 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.

Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.612. JUDICIAL REVIEW.
     (a) 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. In order to prevail, a person seeking review must prove that the action complained of was arbitrary, capricious, or otherwise not in accordance with law.
     (b) Venue for an action relating to this subchapter is in Travis County.

Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.

§ 33.613. PROPERTY RIGHTS;
     RESTORATION BY BEACHFRONT OWNER OF PRIVATE PROPERTY AFFECTED BY COASTAL EROSION. (a) This section applies to land that:
          (1) on December 31, 1955, was privately owned and not submerged or owned by the School Land Board; and
          (2) fronts on a bay and not the Gulf of Mexico.
     (b) In accordance with land office rules, the owner of property immediately landward of a public beach or submerged land, including state mineral lands, that has been affected by coastal erosion shall restore the affected land to its original boundaries as evidenced in a residential subdivision plat for residential lots of one acre or less filed in the real property records of each county in which the affected land is located. The owner shall use only private resources and money for restoration authorized by this section. After restoration the owner owns the restored land in fee simple, subject to:
          (1) the common law rights of the public in public beaches as affirmed by Subchapter B, Chapter 61; and
          (2) the rights of a public school land lessee holding a lease on the property on September 1, 2005.
     (c) In accordance with land office rules, the owner shall build bulkheads on the restored land to prevent further erosion of the restored land.
     (d) The land office shall adopt reasonable rules to govern the restoration of land under this section, including rules that:
          (1) prescribe the type and quality of materials that may be used to backfill or build a bulkhead;
          (2) require maintenance of backfill and bulkheads;
          (3) authorize land office maintenance or removal of abandoned or dilapidated structures;
          (4) require consideration of any adverse effects on adjacent property owners; and
          (5) establish penalties for the violation of this section or rules adopted under this section.
     (e) State money may not be used to restore land under this section.

Added by Acts 2005, 79th Leg., ch. 867, § 3, eff. June 17, 2005.