Law:Title 2. Public Domain. Subtitle E. Beaches And Dunes from Chapter 63. Dunes (Texas)

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Subtitle E. Beaches And Dunes

Contents

Chapter 63. Dunes

Subchapter A. General Provisions

Section  63.001.  Findings Of Fact.

The legislature finds and declares:

(1)  that the mainland gulf shoreline, barrier islands, and peninsulas of this state contain a significant portion of the state's human, natural, and recreational resources;

(2)  that these areas are and historically have been wholly or in part protected from the action of the water of the Gulf of Mexico and storms on the Gulf by a system of vegetated and unvegetated sand dunes that provide a protective barrier for adjacent land and inland water and land against the action of sand, wind, and water;

(3)  that certain persons have from time to time modified or destroyed the effectiveness of the protective barriers and caused environmental damage in the process of developing the shoreline for various purposes;

(4)  that the operation of recreational vehicles and other activities over these dunes have destroyed the natural vegetation on them;

(5)  that these practices constitute serious threats to the safety of adjacent properties, to public highways, to the taxable basis of adjacent property and constitute a real danger to natural resources and to the health, safety, and welfare of persons living, visiting, or sojourning in the area;

(6)  that it is necessary to protect these dunes as provided in this chapter because stabilized, vegetated dunes offer the best natural defense against storms and are areas of significant biological diversity;

(7)  that vegetated stabilized dunes help preserve state-owned beaches and shores by protecting against erosion of the shoreline; and

(8)  that different areas of the coast are characterized by dunes of various types and values, all of which should be afforded protection.

Acts 1977, 65th Leg., p. 2499, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 1, eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, Sec. 18, eff. June 7, 1991.



Section  63.002.  Definitions.

In this chapter:

(1)  "Commissioner" means the Commissioner of the General Land Office.

(2)  "Barrier island" means an island bordering on the Gulf of Mexico and entirely surrounded by water.

(3)  "Peninsula" means an arm of land bordering on the Gulf of Mexico surrounded on three sides by water.

(4)  "Recreational vehicle" means a dune buggy, marsh buggy, minibike, trail bike, jeep, or any other mechanized vehicle that is being used for recreational purposes, but does not include any vehicle not being used for recreational purposes.

(5)  "Mainland shoreline" means all shoreline fronting on the open Gulf of Mexico that is not located on a barrier island or a peninsula.

(6)  "Restoration" means the repair or replacement of dunes or dune vegetation.

Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 2, eff. Aug. 26, 1985.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 15, eff. September 1, 2007.



Section  63.003.  Effect Of Chapter.

The provisions of this chapter do not apply to any dune area not accessible by public road or common carrier ferry facility for as long as that condition exists.

Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 3, eff. Aug. 26, 1985.



Subchapter B. Dune Protection Line

Section  63.011.  Establishing Dune Protection Line.

(a) After notice and hearing, the commissioners court of each county that has within its boundaries mainland shoreline, a barrier island, or a peninsula located on the seaward shore of the Gulf of Mexico shall establish a dune protection line on any such shoreline, island, or peninsula within its boundaries for the purpose of preserving sand dunes.

(b)  A county may allow a municipality within the county to administer this chapter within its corporate limits and extraterritorial jurisdiction. On delegation by a county, a municipality may adopt and apply any appropriate ordinances within its extraterritorial jurisdiction to effect the purposes of this chapter.

(c)  Municipalities and counties may enter into interlocal cooperation contracts for the administration of dune permit programs under The Interlocal Cooperation Act (Article 4413(32c), Vernon's Texas Civil Statutes).

(d)  The land office may assist and advise counties and municipalities in establishing or altering dune protection lines.

Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 3, eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, Sec. 19, eff. June 7, 1991.



Section  63.012.  Location Of Dune Protection Line.

The dune protection line shall not be located further landward than a line drawn parallel to and 1,000 feet landward of the line of mean high tide of the Gulf of Mexico.

Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.



Section  63.013.  Notice.

(a) Notice of a hearing to consider establishing the dune protection line shall be published at least three times in the newspaper with the largest circulation in the county. The notice shall be published not less than one week nor more than three weeks before the date of the hearing.

(b)  Notice shall be given to the commissioner not less than one week nor more than three weeks before the hearing.

Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.



Section  63.014.  Map And Description Of Dune Protection Line.

(a) The commissioners court or governing body of each municipality in establishing a dune protection line shall define the line by presenting it on a map or drawing, by making a written description, or by both. Each shall be designated appropriately and filed with the clerk of the county or municipality establishing the line and with the commissioner.

(b)  Notice of alterations in the dune protection line shall be filed with the clerk and with the commissioner, and the appropriate changes shall be made on the map, drawing, or description.

Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 20, eff. June 7, 1991.



Section  63.015.  Dune Protection Line Prohibited.

No dune protection line may be established within a state or national park area, wildlife refuge, or other designated state or national natural area; provided, however, any state-owned or other public land not specifically exempted by this section shall be subject to the same requirements as private lands except as provided in Sections 31.161 through 31.167 of this code.

Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 21, eff. June 7, 1991.



Subchapter C. Permits

Section  63.051.  Permit Requirement.

An owner of land or a person holding an interest in land under the owner who desires to perform or allow any of the acts prohibited in Section 63.091 of this code must apply for a permit from the appropriate commissioners court or municipal governing body.

Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 22, eff. June 7, 1991.



Section  63.052.  Permit Not Required.

No permit is required for the following activities:

(1)  grazing livestock;

(2)  production of oil and gas; and

(3)  recreational activity other than the operation of a recreational vehicle.

Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.



Section  63.053.  Fees.

(a) The commissioners court or governing body of the municipality may require a reasonable fee to accompany the application.

(b)  Any commissioners court or governing body of a municipality that has adopted a dune protection line and is administering this chapter and that has a certified beach access plan as provided for in Section 61.015 of this code is hereby authorized, subject to all requirements of Chapter 61 of this code, to charge reasonable fees that do not exceed the cost for the provision and maintenance of public beach related facilities and services necessary to implement such plans, including but not limited to parking, public health and safety, environmental protection and matters contained in the certified beach access plans, and that do not unfairly limit access to and use of such beaches.

Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 23, eff. June 7, 1991.



Section  63.054.  Review.

(a) The commissioners court or governing body of the municipality shall evaluate the permit application, and if the commissioners court or governing body of the municipality finds as a fact after full investigation that the particular conduct proposed will not materially weaken the dune or materially damage vegetation on the dune or reduce its effectiveness as a means of protection from the effects of high wind and water, it may grant the permit.

(b)  In determining whether or not to grant the permit, the commissioners court or governing body of the municipality shall consider the height, width, and slope of the dune, any significant environmental features of the dune, the feasibility and desirability of restoration of vegetation, and cumulative impacts and shall consider requirements for protection of critical dune areas.

(c)  Each county or municipality administering this chapter shall establish procedures and requirements governing the review and approval of dune permits, and these procedures and requirements shall be submitted to the commissioner for certification to determine whether the procedures and requirements are in compliance with rules and policies adopted under Section 63.121.  The commissioner shall act on a county or municipality's proposed dune protection plan not later than the 90th day after the date the plan is submitted by approving the plan or denying certification.  If certification is denied, the commissioner shall return the proposed plan to the originating local government with a statement of specific objections and the reasons for denial, along with suggested modifications.  On receipt, the county or municipality shall revise and resubmit the plan.  The commissioner must certify a county or municipality's procedures and requirements under this section in accordance with rules adopted under Section 63.121.

Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 24, eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, Sec. 7, eff. June 18, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 16, eff. September 1, 2007.



Section  63.055.  Terms And Conditions Of Permit.

The commissioners court or governing body of the municipality may include in a permit the terms and conditions it finds necessary to assure the protection of life, natural resources, and property.

Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 25, eff. June 7, 1991.



Section  63.056.  Notice To And Comments Of Commissioner On Permits.

(a) After receiving an application for a permit to perform any of the acts prohibited in Section 63.091 in connection with small-scale construction activity that includes 5,000 square feet or less or habitable structures two stories in height or less, the commissioners court or the governing body of the municipality shall notify the commissioner by sending, not less than 10 working days before the date of the public hearing on the application, notice of the hearing and a copy of the application.  After receiving an application for a permit to perform any of the acts prohibited in Section 63.091 in connection with large-scale construction activity that includes more than 5,000 square feet or habitable structures more than two stories in height, the commissioners court or the governing body of the municipality shall notify the commissioner by sending, not less than 30 working days before the date of the public hearing on the application, notice of the hearing and a copy of the application.

(b)  The commissioner may submit any written or oral comments regarding the effect of the proposed activity on the dunes that protect state-owned land, shores, and submerged land.

Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 26, eff. June 7, 1991.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 17, eff. September 1, 2007.



Section  63.057.  Permit For Certain Activity Prohibited.

(a) No permit may be issued that allows the operation of a recreational vehicle on a sand dune seaward of the dune protection line.

(b)  No permit may be issued that allows any activity in a critical dune area inconsistent with rules promulgated by the commissioner for protection of critical dune areas.

Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 27, eff. June 7, 1991.



Subchapter D. Prohibitions

Section  63.091.  Conduct Prohibited.

Unless a permit is properly issued authorizing the conduct, no person may damage, destroy, or remove a sand dune or portion of a sand dune seaward of a dune protection line or within a critical dune area or kill, destroy, or remove in any manner any vegetation growing on a sand dune seaward of a dune protection line or within a critical dune area.

Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 3, eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, Sec. 28, eff. June 7, 1991.



Section  63.093.  Prohibited Operation Of Recreational Vehicles.

No person may operate a recreational vehicle on a sand dune seaward of the dune protection line in any county in which a dune protection line has been established.

Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.



Subchapter E. Critical Dune Areas

Section 63.121.  Identification Of Critical Dune Areas; Rules.

(a) The commissioner, in his role as trustee of the public land of this state, shall identify the critical dune areas within 1,000 feet of mean high tide that are essential to the protection of state-owned land, public beaches, and submerged land.

(b)  The commissioner shall promulgate rules for:

(1)  the identification and protection of critical dune areas; and

(2)  the certification of procedures and requirements governing the review and approval of dune permits by a county or municipality.

Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 30, eff. June 7, 1991.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 18, eff. September 1, 2007.



Section  63.122.  Notice To Counties.

After the commissioner has identified the critical dune areas, notice of the critical dune areas and the rules for their protection shall be given to the commissioners court of each county and the governing body of each municipality in which one or more of these areas is located.

Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 30, eff. June 7, 1991.



Subchapter F. Appeals

Section  63.151.  Appeal By Littoral Owner.

A littoral owner aggrieved by a decision of the commissioners court or governing body of the municipality under this chapter may appeal to a district court in that county.

Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 31, eff. June 7, 1991.



Section  63.152.  Appeal By Commissioner.

The commissioner may appeal to a district court of that county any decision of the commissioners court or governing body of the municipality that the commissioner determines to be a violation of this chapter.

Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 31, eff. June 7, 1991.



Subchapter G. Penalties

Section  63.181.  Enforcement.

(a) Any county attorney, district attorney, or criminal district attorney, or the attorney general at the request of the commissioner, shall file in a district court of Travis County or in the county in which the violation occurred a suit to obtain either a temporary or permanent court order or injunction to prohibit and remedy any violation of this chapter or any rule, permit, or order under this chapter and to collect damages to natural resources injured by the violation and to recover civil penalties.

(b)  A person who violates this chapter or any rule, permit, or order under this chapter is liable for a civil penalty of not less than $50 nor more than $2,000. Each day that a violation occurs or continues constitutes a separate offense.  A violation of Section 63.091 is considered to be a continuing violation from the date of the initial unauthorized conduct until the earlier of:

(1)  the date on which a proper permit is issued authorizing the conduct; or

(2)  the date on which restoration of dunes or dune vegetation damaged by the violation is completed.

Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 32, eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, Sec. 8, eff. June 18, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 19, eff. September 1, 2007.



Section 63.1811.  Administrative Penalty.

The commissioner may assess an administrative penalty for a violation of Section 63.091 or any rule, permit, or order issued under this chapter in the amount established by Section 63.181(b) for a civil penalty.  In determining the amount of the penalty, the commissioner shall consider:

(1)  the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or damage caused thereby;

(2)  the degree of cooperation and quality of response;

(3)  the degree of culpability and history of previous violations by the person subject to the penalty;

(4)  the amount necessary to deter future violations; and

(5)  any other matter that justice requires.

Added by Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 20, eff. September 1, 2007.



Section 63.1812.  Enforcement Provisions Cumulative.

This subchapter is cumulative of all other applicable penalties, remedies, and enforcement and liability provisions.

Added by Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 20, eff. September 1, 2007.



Section 63.1813.  Mitigation For Damage, Destruction, Or Removal Of Dune Or Dune Vegetation Without Permit.

(a) The commissioner may order restoration for the damage, destruction, or removal of a sand dune or a portion of a sand dune or the killing, destruction, or removal of any vegetation growing on a sand dune seaward of the dune protection line or within a critical dune area in violation of this chapter or any rule, permit, or order issued under this chapter.

(b)  The decision to require restoration under this section is discretionary with the commissioner.  This section does not impose a duty on the state to order restoration.

(c)  The commissioner may contract for the restoration required under this section and may pay the costs of restoration from money appropriated by the legislature.

Added by Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 20, eff. September 1, 2007.



Section 63.1814.  Notice Requirements; Orders And Hearings.

(a) The commissioner shall assess an administrative penalty and pursue restoration in accordance with this section.

(b)  Before the commissioner may order restoration under Section 63.1813 or assess an administrative penalty under Section 63.1811, the commissioner must give written notice to a person who is taking or has taken actions that violate Section 63.091 or any rule, permit, or order issued under this chapter.  The notice must state:

(1)  the specific conduct that violates Section 63.091 or any rule, permit, or order issued under this chapter;

(2)  that the person who is engaged in or has been engaged in the conduct that violates Section 63.091 or any rule, permit, or order issued under this chapter must perform restoration for the damage caused by the violation not later than the 60th day after the date on which the notice is served;

(3)  that failure to perform restoration for the damage caused by the violation in accordance with the commissioner's order may result in liability for a civil penalty under Section 63.181(b) in an amount specified, restoration contracted or undertaken by the commissioner and liability for the costs of restoration, or any combination of those remedies; and

(4)  that the person who is engaging in or has engaged in conduct that violates Section 63.091 or any rule, permit, or order issued under this chapter may submit, not later than the 60th day after the date on which the notice is served, a written request for a hearing.

(c)  A person is considered to be engaging in or to have engaged in conduct that violates Section 63.091 or any rule, permit, or order issued under this chapter for purposes of this section if the person is the person who most recently owned, maintained, controlled, or possessed the real property on which the conduct occurred.

(d)  The notice required by Subsection (b) must be given:

(1)  by service in person, by registered or certified mail, return receipt requested, or by priority mail; or

(2)  if personal service cannot be obtained or the address of the person responsible is unknown, by posting a copy of the written notice at the site where the conduct was engaged in and by publishing notice in a newspaper with general circulation in the county in which the site is located at least two times within 10 consecutive days.

(e)  The commissioner by rule may adopt procedures for a hearing under this section.

(f)  The commissioner must grant a hearing before an administrative law judge employed by the State Office of Administrative Hearings if a hearing is requested.  A person who does not request a hearing within 60 days after the date on which the notice is served waives all rights to judicial review of the commissioner's findings or orders and shall immediately initiate mitigation and pay any penalty assessed.  If a hearing is held, the commissioner may issue a final order approving the proposal for decision submitted by the administrative law judge concerning mitigation and payment of a penalty.  The commissioner may change a finding of fact or conclusion of law made by the administrative law judge, or may vacate or modify an order issued by the administrative law judge in accordance with Section 2001.058, Government Code.

(g)  A person may seek judicial review of a final order of the commissioner under this section in a Travis County district court under the substantial evidence rule as provided by Subchapter G, Chapter 2001, Government Code.  The trial courts of this state shall give preference to an appeal of a final order of the commissioner under this section in the same manner as provided by Section 23.101(a), Government Code, for an appeal of a final order of the commissioner under Section 51.3021 of this code.

(h)  If the person who is engaged in or has been engaged in conduct that violated Section 63.091 or any rule, permit, or order issued under this chapter does not pay assessed penalties, mitigation costs, and other assessed fees and expenses on or before the 60th day after the date of entry of a final order assessing the penalties, costs, and expenses, the commissioner may:

(1)  request that the attorney general institute civil proceedings to collect the penalties, costs of restoration, and other fees and expenses remaining unpaid; or

(2)  use any combination of the remedies prescribed by this section, or other remedies authorized by law, to collect the unpaid penalties, costs of restoration, and other fees and expenses assessed because of unauthorized conduct and its mitigation by the commissioner.

(i)  Penalties or costs collected under this section shall be deposited in the coastal erosion response account established under Section 33.604.

Added by Acts 2007, 80th Leg., R.S., Ch. 1256, Sec. 20, eff. September 1, 2007.


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