31 Tex. Admin. Code § 155.3 - Easements
(a) Any easement granted to a littoral owner
will not be construed as recognition of a right existing in the littoral owner
incident to the ownership of littoral property.
(b) Permits from other agencies. In the event
the activity for which the easement is sought requires the littoral owner to
seek one or more permits from any other agency or department of government of
the state, the board may agree with such agency or department to issue a single
document incorporating all rights and privileges of the applicant.
(c) Mineral or surface interest owner. The
board may grant a channel easement to any surface or mineral interest holder
for purposes necessary or appropriate to the use of such interests.
(d) Consideration of application.
(1) Unless otherwise authorized by these
sections, the board will hold a meeting to evaluate, consider, and hear
testimony on an application. Upon receipt of an application and all requested
information, the board may issue, deny, or issue with qualifications, an
easement contract.
(2) Upon receipt
of all necessary application information, the board or the commissioner, as
provided by subsection (e) of this section, may issue, deny, or issue with
qualifications, an easement contract.
(e) The commissioner may approve an easement
application without board approval if the application is for any of the
following activities but not for commercial/industrial activity and is
consistent with the criteria for decision as set forth in subsection (f) of
this section:
(1) existing fill and
associated bulkhead, riprap, dredged areas, groins, breakwaters, or other
similar existing projects;
(2)
existing piers, docks, boatlifts, or other similar existing projects;
(3) proposed piers, docks, boatlifts, or
other similar projects provided such projects have been determined by the
General Land Office (GLO) staff to have minimal unavoidable environmental
impacts;
(4) proposed fill and
associated riprap or bulkheads provided such fill impacts less than two hundred
(200) square feet;
(5) proposed
riprap which impacts the minimum amount of coastal public land to prevent
erosion;
(6) renewals or
assignments of previously approved projects provided the project has not been
altered;
(7) habitat creation and/or
living shorelines that are less than 500 linear feet and not associated with
another project on coastal public land; or
(8) pipelines, fiber optic lines, electric
lines, and other uses authorized under Texas Natural Resources Code, Chapter
51.
(f) Criteria for
decision. Project proposals will be evaluated in accordance with the following
factors.
(1) Fill projects for the sole
purpose of land reclamation will not be approved; and
(2) Any project that is determined by the
board or the commissioner as unsafe or contrary to the established policies of
the board and/or the GLO will not be approved.
(3) Adverse impacts to coastal natural
resource areas must be avoided to the extent practicable and minimized where
unavoidable. Applicants may be required to provide appropriate mitigation, as
set forth in subsection (b) of this section, for those impacts which are
unavoidable. Where impacts to coastal natural resource areas are minimal, the
payment of a resource impact fee may be required in lieu of undertaking a
physical mitigation project where such project is not practicable.
(4) Docks, piers, and watercraft storage
facilities.
(A) Piers, docks, and watercraft
storage facilities will be limited to the minimum size necessary to serve the
purpose of the project and will be constructed in a manner that does not
interfere with navigation or other authorized uses.
(B) Piers, docks, and watercraft storage
facilities will be designed and constructed in a manner that avoids existing
marshes, oyster reefs, seagrass vegetation or shallow water capable of
supporting these habitats to the extent practicable. Impacts to sensitive
habitat that cannot be avoided will be minimized to the extent
practicable.
(C) When constructed
for private/residential use, only one pier or dock, with normal appurtenances,
two watercraft storage facilities (limited to one boathouse), and one
additional personal watercraft slip may extend from each defined parcel of
littoral property. Piers, docks, and watercraft storage facilities shall extend
perpendicular from a point on the shoreline which is not less than ten feet
from the adjacent littoral owner's property line, unless such a design would
obstruct navigation or would unreasonably interfere with an adjoining littoral
property owner's use of the waterfront.
(D) In addition to the authorization granted
by subparagraph (C) of this paragraph, the board may, in its discretion,
authorize the construction of additional watercraft storage facilities for use
in connection with a private residence. Any such authorization must be
consistent with subparagraph (A) and (B) of this paragraph and will be subject
to the fee structure outlined in §
155.15 of this title (relating to
Fees).
(5) Dredged
areas.
(A) Propwashing is an unacceptable
method of dredging and will not be approved.
(B) Projects shall be limited to the minimum
size necessary to serve the project purpose. Joint use of access channels by
multiple littoral property owners is preferred and encouraged rather than
individual channels.
(C) Extension
of piers into deeper water is preferred to the dredging of access channels or
basins whenever practical.
(D) A
channel or basin should be designed to insure adequate flushing and should
prevent the creation of conditions which are likely to cause stagnant water
pockets.
(E) The alignment of a
channel or canal should make maximum use of a natural or existing channel.
Design and alignment should minimize disruption of natural sheetflow, water
flow, and drainage systems.
(F) A
channel proposed to be dredged through highly productive coastal public lands
is discouraged and will be approved only in unusual circumstances.
(G) Dredging should be conducted in a manner
that minimizes turbidity and dispersal of dredged material.
(6) Dredged material disposal
area.
(A) All dredged material should be
placed on and contained within suitable upland sites of relatively low
productivity above mean high water and where adverse effects of such disposal
are minimized.
(B) Dredge material
containing hazardous substances that presents a threat to public health, safety
or the environment, shall be disposed of only in compliance with federal, state
and local laws and regulations; further
(i)
dredge material shall not be disposed of in any place where such disposal would
adversely affect municipal water supplies, shellfish beds, fishery areas
(including spawning and breeding areas), wildlife, or recreational areas;
and
(ii) disposal of dredge
material shall be in accordance with §501.25 of this title (relating to
Policies for Dredging and Dredged Material and Placement).
(C) Open water disposal shall comply with
subparagraph (B) of this paragraph and shall be considered only if upland
alternatives are not available. Any disposal in open waters must be in
compliance with all federal, state and local laws and regulations and shall be
consistent with the goals and policies of the Texas Coastal Management
Program.
(D) Consideration of
habitat creation and improvement should be made when environmental damage
results.
(7) Jetty,
groin, and breakwater.
(A) No new jetties or
groins will be authorized except under the most compelling circumstances upon
request by a city, county, or other public entity for a public
purpose.
(B) Plans for construction
of a jetty, groin, or breakwater must be analyzed to insure that the structure
does not create adverse sediment transportation patterns that induce erosion or
undesirable shoaling in adjacent areas.
(C) Existing but unauthorized jetties or
groins may be authorized to remain in place until such jetties or groins are
destroyed or damaged in excess of fifty percent under the following conditions:
(i) no significant erosion of adjacent
property has occurred or is occurring as a result of the presence of the
jetties or groins;
(ii) no
significant adverse impacts to sensitive habitats have occurred nor are
sensitive habitats threatened by the presence of the jetties or
groins;
(iii) no unnatural
accumulation resulting in the deposition of sediments greater than five square
feet per linear foot of the affected shoreline; and
(iv) even if a jetty or groin causes
significant unnatural accumulation but the removal of the jetty or groin will
cause severe adverse impacts to sensitive natural resources, provided the
boundary between state-owned submerged land and the adjacent littoral property
is established by a Licensed State Land Surveyor. Non-compliance with any of
the conditions in this subparagraph will be sufficient cause for denial or
termination of authorization and for removal of a non-conforming
structure.
(D) In
addition to minimizing adverse physical effects, the owner of a jetty, groin,
or breakwater must ensure that the structure does not unduly interfere with
public use of submerged land or the shoreline.
(8) Shoreline stabilization projects.
(A) Living Shorelines and vegetative cover
are the preferred method of shoreline stabilization and shall be used where
practical. Impacts to sensitive habitat will be avoided whenever possible and
minimized and mitigated when unavoidable.
(B) Riprap is an acceptable method of
shoreline stabilization if composed of interlocking brick, rock large enough
not to be displaced by storms, or concrete rubble which is free of protruding
rebar. Where possible, sloping riprap should be used rather than a vertical
seawall or bulkhead. Riprap material may extend seaward from the shoreline only
as far as required to protect the shoreline.
(C) The use of tires, automobile bodies or
parts, appliances, trash and other unconsolidated material is not acceptable
and shall not be approved.
(D)
Except in special circumstances, a bulkhead or seawall should be located no
further seaward than the mean of the high water line, and, to the extent
practicable, designed so that reflected wave energy does not destroy stable
marine bottom or constitute a safety hazard.
(E) An application for the construction of a
bulkhead on a significant coastal public marsh or grassflat, where such will
lead to the destruction of this resource, will normally be denied. To avoid
this, extreme care should be taken as to the location and type of construction
planned for bulkheads in a wetland area.
(9) Marinas.
(A) Marinas should be located in areas where
the least dredging and maintenance will be required. Plans for a marina should
minimize the disruption of currents and the need for excavation of the shore
area. Dead end or deep canals without adequate flushing should be
avoided.
(B) Each marina shall
provide adequate facilities to its users for the reception of waste and/or
garbage. Failure to insure that the users of a marina have access to facilities
necessary for the proper and lawful disposal of waste and/or garbage on an
ongoing basis may subject the easement to termination and the easement holder
to any applicable civil and criminal penalties.
(10) Placement of fill.
(A) Placement of fill proposed in marshes and
submerged grass bed areas normally will be denied. Consideration will be given
to a fill proposal for a water dependent use or public use on relatively
unproductive coastal public lands.
(B) A shoreline fill should be designed and
located so that significant damage to existing ecological values or natural
resources, or alternation of natural currents will not occur.
(C) The perimeter of fills should be provided
with vegetation, retaining walls, riprap, or other mechanisms for erosion
prevention.
(D) Fill material
should be of such quality that it will not cause water quality degradation.
Submerged land should not be considered for a sanitary landfill or the disposal
of solid waste.
(g) Mitigation sequence. An applicant is
responsible for identifying practicable alternatives or available sites for a
proposed project with the fewest adverse impacts. For projects requiring
mitigation for unavoidable adverse impacts to natural resources, review shall
be based on the following sequence:
(1)
Avoidance. Projects must be designed to avoid critical area impacts to the
extent practicable. Critical areas include, but are not limited to, a coastal
wetland, an oyster reef, a hard substrate reef, submerged vegetation, or tidal
sand or mud flat.
(2) Minimization.
Unavoidable impacts shall be minimized to the extent practicable through the
use of structural or non-structural modifications.
(3) Mitigation and Compensation. Unavoidable
impacts or damages to coastal public land will require mitigation and/or a
resource impact fee as set forth in §
155.15(b)(6) of
this title. Mitigation for impacts to coastal public land must occur on coastal
public land.
(h)
Consideration of application by mineral interest holder. The board will review
and consider an application for a channel easement to a mineral interest holder
on coastal public lands to insure conformity with the policies, practices, and
procedures in these rules and regulations. Environmental recommendations for
certain development and production activities will be provided to the mineral
interest holder on bay tracts and certain other tracts in the notice of bids
booklet published by the GLO. Updates of these recommendations will be
furnished on request. Development activities conforming with these
environmental recommendations normally will receive favorable consideration by
the GLO.
(i) Approval criteria. An
easement, if granted by the board, will be approved subject to these rules in
addition to such terms and conditions as may be prescribed in the contractual
agreement. The board may waive a rule at its discretion. All structures on
coastal public lands will be subject to inspection at any time by the board or
their authorized representatives. Any easement contract will be for a specific
purpose. If a change in the contractual agreement is desired, an amendment
application must be filed. An applicant, by accepting an easement to occupy or
otherwise place a structure on coastal public lands or water surface areas,
agrees and consents to comply with the conditions of the contract.
Notes
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No prior version found.