TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 4. SCHOOL LAND BOARD

CHAPTER 155. LAND RESOURCES

SUBCHAPTER A. COASTAL PUBLIC LANDS

31 TAC §§155.1, 155.3, 155.15

The School Land Board (Board) proposes amendments to §§155.1, 155.3, and 155.15 in Texas Administrative Code Title 31, Part 4, Chapter 155, Subchapter A, concerning Coastal Public Lands. The proposed amendments add a definition of living shorelines, clarify that living shorelines are the preferred method of shoreline stabilization, and streamline procedures for coastal leases for living shorelines. The proposed amendments also increase the fees for commercial leases, consistent with inflation and the practices of similar governmental entities. Other amendments are non-substantive corrections and edits.

Explanation of Proposed Amendments

Section 155.1(d), concerning General Provisions, includes definitions related to the Coastal Management Program (CMP). The proposed amendment to 155.1(d) adds a definition for "living shorelines" for consistency with terminology commonly used by other federal and state programs. It also clarifies that living shorelines are available in Texas for shoreline protection and briefly describes the types of projects that qualify as living shorelines. Use of the term "living shorelines" is consistent with federal programs and policies, including Army Corps of Engineer Nationwide Permits and National Oceanic and Atmospheric Administration (NOAA) programs, and is commonly used throughout the country by other states.

Proposed amendments to Section 155.3, concerning Easements, include adding "living shorelines" to §155.3(e)(7) so that the Commissioner of the General Land Office (GLO) may approve an easement application for a living shoreline project without Board approval. As reflected in long-standing Board policy and §155.3(e), the GLO Commissioner may authorize coastal easements without Board authorization for certain categories of projects that have minimal environmental impacts and no commercial or industrial activity. Due to their benefits to the environment, living shorelines are consistent with the type of project the GLO Commissioner authorizes without Board approval. According to NOAA, living shorelines not only protect shorelines from erosion but also have benefits such as providing habitat for fish and other living resources, improving water quality and storing nutrients, outperforming hardened shorelines during a storm, and attracting natural wildlife. By clarifying that no Board approval is required for living shoreline easements, this amendment would expedite the authorization process for such projects and promote the efficient administration of the coastal public land program. The proposed amendment to §155.3(f)(8)(A) would add "living shorelines" to indicate that they, along with vegetative cover, are the preferred methods of shoreline stabilization and must be used where practicable. An amendment to Section 155.3(f)(B) deletes the word "riprapping" and replaces it with the correct term, "riprap."

Section 155.15, concerning Rent and Fees, includes proposed amendments related to fees for the use of coastal public land. The proposed amendments to the fee tables in 155.15(b)(1)(C)(i)-(iv) add "living shorelines" as a structure that is covered under the easement category that currently includes riprap and vegetative cover, in each of the four types of easements. Easements in this category do not have any annual rent. Also proposed are the addition of a footnote to the breakwater category to indicate that breakwaters associated with living shorelines do not have any annual rent and revisions to the numbering of the other footnotes. To qualify for no rent, a breakwater must be directly associated with a living shoreline and be used for beneficial environmental purposes. A breakwater's association with a living shoreline project will be assessed by the GLO for eligibility for no annual rent. Breakwaters having a primary purpose other than preventing erosion do not qualify for no rent. For example, the primary purpose of a breakwater around a marina is to provide safe harbor, and it would not qualify for no rent. In addition, to qualify for no rent, a breakwater must have a substantial nature-based feature, such as vegetation or estuarine habitat. A qualifying breakwater would typically be no longer than the length of the living shoreline area. A qualifying breakwater would also be close enough to the shore that waves would not build up between the breakwater and the shore.

The proposed amendments to the fee table in §155.15(b)(1)(C)(iv) would also revise the applicable rent and fees for commercial coastal easements in order to account for inflation since 1995, which was the last time the rent and fees for commercial coastal easements were modified. These changes bring rates in line with current market rates for other Gulf Coast states such as Florida, Louisiana, Mississippi, and Alabama. Many of these states adjust annually for inflation and charge additional fees on top of their base rates. Texas currently has one of the lowest rental rates for commercial and industrial leases on state owned submerged lands. In addition, the amendment adjusts the annual minimum rent for commercial and industrial activity from $100 to $500. Under the amendment, fees for existing projects remain on the same 20% increase every five years schedule. If a project is modified outside of the current footprint, new the new rate change will take effect.

Fiscal and Employment Impacts

For the amendments to §§155.1, 155.3, and 155.15(b)(1)(C)(i)-(iii), David Green, Senior Deputy Director, Coastal Protection, has determined that for each of the first five years that the proposed amendments are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules. Mr. Green has determined that the proposed amendments will not have an adverse economic effect on small or large businesses, micro-businesses, rural communities, or individuals since the amendments would decrease costs to persons required to comply with the rules. Accordingly, an economic impact statement or regulatory flexibility analysis is not required.

For the amendments to §155.15(b)(1)(C)(iv), Brian Carter, Senior Deputy Director of Asset Enhancement has determined that during the first five-year period the proposed amended rule is in effect, there will be no negative fiscal implications for state or local government as a result of enforcing or administering the amended section. Mr. Carter has also determined that during the first five-year period the proposed amended rule is in effect, there will be increased economic costs to entities that seek a new easement or lease for commercial or industrial activity or renew an existing easement or lease for commercial or industrial activity. The current average coastal lease is $7,750 annually, which will increase to an average of $9,300 per year. Of the existing commercial leases, 98 of the 311 pay the minimum annual rent. These leases will have an increase from $100 a year to $500 a year in rent. This group represents thirty-two percent of the commercial leases and currently generate a total revenue of approximately $27,000 annually. By increasing the minimum rate to $500, annual revenue from this source will be increased to $49,000.

Out of the 311 existing coastal leases, 208 will be affected by the rate change. Total annual revenue would increase from $1.62 million to $2 million. Current rates are well below industry standards, and an increase is necessary for the Permanent School Fund to receive fair compensation for the use of its land. The proposed increases would result in the GLO's rates and fees rising squarely within the spectrum of those charged by comparable landowners.

The proposed rulemaking will have no adverse local employment impact that requires an impact statement pursuant to Texas Government Code §2001.022.

Public Benefit

Mr. Green has determined that the proposed amendments will benefit the public by promoting greater efficiency in the administration of the coastal public land program, reducing the time and effort required to authorize certain projects on coastal public land, providing incentives for environmentally beneficial projects, and providing the public with greater clarity regarding the process.

Mr. Carter has determined that the public will benefit from the proposed amendments because of the additional revenue deposited into the Permanent School Fund, which ultimately benefits kindergarten through 12th grade school children in Texas. The proposed rule would also increase general revenue deposited with the state.

Environmental Regulatory Analysis

The Board has evaluated the proposed amendments in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that this rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. A major environmental rule means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed amendments are not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

Government Growth Impact Statement

The Board has evaluated the proposed amendments in accordance with Government Code, §2001.0221. For each of the first five years that the proposed amendments are in effect, the amendments will not: create or eliminate a government program; create or eliminate any employee positions; require an increase or decrease in future legislative appropriations; create a new regulation; increase or decrease the number of individuals subject to applicability of the rules; or adversely affect the state's economy.

The proposed rule amendments will result in an increase in fees paid to the agency, are expected to increase the state's revenue to an amount that reflects the inflation rate since 1995, and bring the state's rates in line with those of other Gulf Coast states. The increase has the potential to result in a positive impact on the state's economy since it will result in more money going to the Permanent School Fund. This proposal amends current rules.

Takings Impact Assessment

The Board has evaluated the proposed amendments to determine whether Texas Government Code, Chapter 2007, is applicable and a detailed takings assessment is required. The Board has determined that the proposed amendments do not affect private real property in a manner that requires real property owners to be compensated as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Article I, Sections 17 and 19 of the Texas Constitution. Therefore, a detailed takings assessment is not required.

Coastal Management Program Analysis

The Board has reviewed the proposed amendments for consistency with the Texas Coastal Management Program (CMP), in accordance with Texas Natural Resources Code, §33.2051(d), and 31 Texas Administrative Code §505.11(a)(1), relating to Actions and Rules Subject to the Coastal Management Program. The Board determined that since this rulemaking is procedural in nature and would have no substantive effect on agency actions subject to the CMP, the rulemaking is consistent with the applicable CMP goals and policies.

Request for Public Comment

Written comments should be submitted to Walter Talley, Office of General Counsel, Texas General Land Office, 1700 N. Congress Avenue, Austin, Texas 78701, or faxed (512) 463-6311 or emailed to walter.talley@glo.texas.gov, no later than 30 days following publication.

Statutory Authority

The amendments are proposed under Texas Natural Resources Code (TNRC) §33.064, providing that the Board may adopt procedural and substantive rules which it considers necessary to administer, implement, and enforce Chapter 33, Texas Natural Resources Code. Texas Natural Resources Code §§33.101 - 33.136 are affected by the proposed amendments.

§155.1.General Provisions.

(a) - (c) (No change.)

(d) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (33) (No change.)

(34) Living shorelines--Alternatives to traditional armoring shoreline stabilization techniques such as bulkheads. Living shorelines incorporate substantial natural or nature-based features, potentially combined with hard structural components as approved by the Texas General Land Office, to provide shoreline protection and stabilization while maintaining shoreline ecosystem functions.

(35) [(34)] Maintenance dredging--Re-dredging an authorized channel to a previously authorized depth. The same limitations and conditions that applied to the initial dredging will apply to the maintenance dredging.

(36) [(35)] Marina--A combination of docks or piers floating or constructed on pilings, extending onto or over coastal public lands, which is used for purposes of storing or docking boats, watercraft, shrimp boats, and similar structures and is available to the public and charges are made for any of its services, and which do not constitute wharves, docks, or piers as defined in this section.

(37) [(36)] Mineral interest holder--Holder of a state mineral lease who plans to dredge on coastal public land outside the state leasehold tract to obtain access to the state leasehold tract.

(38) [(37)] Mitigation sequence--The series of steps which must be taken to prevent or reduce impacts to sensitive habitat while planning or evaluating a project.

(39) [(38)] New dredged area--An excavated area which is not under current permit with the GLO. The new dredged area rate is charged for the first year, and the fee for maintaining the dredged area is charged for each subsequent year of the easement term.

(40) [(39)] Oversized personal watercraft slip--A personal watercraft slip that exceeds 120 square feet in overall area.

(41) [(40)] Person--Any individual, firm, partnership, association, corporation (public or private, profit or nonprofit), trust, or political subdivision or agency of the state.

(42) [(41)] Personal watercraft--A small boat or other craft for water transportation or recreation typically made for use/occupancy by no more than two people at one time.

(43) [(42)] Personal watercraft slip--A small area designed for the docking and/or storage of personal watercraft; includes boat slips and boat skids; limited to a maximum of 120 square feet.

(44) [(43)] Pier and dock--Structures of timber or other material built onto or over coastal public lands which are used for fishing and recreational boating purposes.

(45) [(44)] Private non-profit use--A private activity which does not contemplate the generation of any revenue.

(46) [(45)] Public activity--Activity which is performed in the public interest, as defined by the board, and is not designed to enhance or accommodate a profit-making venture, nor is it primarily associated with a revenue generating activity.

(47) [(46)] Public entity--City, county, state agency, board or commission, or any other political subdivision of the state.

(48) [(47)] Residential use, Category I--One single-family residential dwelling and accessory building(s) on one defined lot or parcel of land; both land and improvements are typically under the same ownership.

(49) [(48)] Residential use, Category II--Multi-family residential units per defined lot or parcel of land; land and individual units may be separately owned; includes uses by condominium developments and homeowners associations acting for and on behalf of owners of a multi-family residential development, but does not include time-share developments or any use that includes commercial activities.

(50) [(49)] Residential use, Category III--One single family residential dwelling and accessory building(s) on one defined lot or parcel of land that is being used for (in part or whole) short-term residential rental--i.e. daily, weekly, monthly, seasonal; both land and improvements are typically under the same ownership.

(51) [(50)] Resource Impact Fee--A one-time fee assessed for proposed projects that impact seagrass, emergent marsh, or oyster reef, for which there is no separate mitigation requirement.

(52) [(51)] Return on investment--A number used in the basin, fill, and industrial activity formulas that reflects a financial return expectation. The return on investment rate will be set by the Board.

(53) [(52)] Riprap--Hard substrate material placed seaward of the shoreline to reduce wave energy.

(54) [(53)] Seaward--The direction away from the shore and toward the body of water bounded by such shore.

(55) [(54)] Sensitive habitat--An area of submerged or emergent vegetation or reefs.

(56) [(55)] Sewage--Refuse liquids or waste (including human waste) matter typically carried off by sewers or stored in septic tanks.

(57) [(56)] Shoreline stabilization project--Vegetative cover or rip-rap consisting of concrete block, concrete rubble, rock, brick, sack crete or similarly stable material approved by the GLO and utilized to control shoreline erosion. Projects that consist of only shoreline stabilization will be treated as a residential use, Category I project.

(58) [(57)] Structure--As defined in §33.004, Texas Natural Resources Code.

(59) [(58)] Submerged lands--As defined in §33.004, Texas Natural Resources Code.

(60) [(59)] Submerged land discount--60% discount used in formulas when the easement is commercial, 70% discount used in formulas when the easement is industrial.

(61) [(60)] Waste and/or garbage--Includes discarded food, refuse, human waste, and unwanted man-made degradable and non-degradable items such as containers, equipment, and other rubbish.

(62) [(61)] Watercraft--A boat or other craft for water transport or recreation. Included, but not limited to, motorboat, personal watercraft, and sailboat.

(63) [(62)] Watercraft storage facility--A boathouse, boatlift, boat ramp, boat-skid, boat slip or personal watercraft slip to accommodate long term or temporary watercraft use.

(64) [(63)] Wharf--A structure of timber, cement, masonry, earth, or other material built onto or over coastal public lands, so that vessels can receive and discharge cargo, products, goods, any paying passengers, etc. This definition applies only to structures or portions thereof which are directly connected with and used for the loading and unloading of water borne commerce but specifically excludes such structures used only for commercial fishing purposes.

(e) - (f) (No change.)

§155.3.Easements.

(a) - (d) (No change.)

(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) - (6) (No change.)

(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) (No change.)

(f) Criteria for decision. Project proposals will be evaluated in accordance with the following factors.

(1) - (7) (No change.)

(8) Shoreline stabilization projects.

(A) Living Shorelines and vegetative [Vegetative ] cover are [is] the preferred method of shoreline stabilization and shall be used where [its use is] 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 [riprapping] 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) - (E) (No change.)

(9) - (10) (No change.)

(g) - (i) (No change.)

§155.15.Fees.

(a) (No change.)

(b) Board fees and charges. The board is authorized and required under the Texas Natural Resources Code, Chapter 33, to collect the fees and charges set forth in this subsection where applicable. The board will charge the following coastal lease and coastal easement fees for use of coastal public land, and will charge the following structure registration and permit fees. The board charge will be based on either the fixed fee schedule or the alternate commercial, industrial, residential, and public formulas as delineated in paragraph (1)(C) of this subsection. The greater of the fixed fee or formula rate will be charged except in the calculation of fees for residential use, Category II and residential use, Category III, where only the fixed rate method will be used. The board may adopt an escalation schedule that will allow for escalation of annual fees based on the term of a coastal lease or coastal easement.

(1) Rental and Fees.

(A) - (B) (No change).

(C) The following tables list the rental fees for easements and permits on coastal public land.

(i) Residential Use, Category I.

Figure: 31 TAC §155.15(b)(1)(C)(i) (.pdf)

[Figure: 31 TAC §155.15(b)(1)(C)(i)]

(ii) Residential Use, Category II.

Figure: 31 TAC §155.15(b)(1)(C)(ii) (.pdf)

[Figure: 31 TAC §155.15(b)(1)(C)(ii)]

(iii) Residential Use, Category III.

Figure: 31 TAC §155.15(b)(1)(C)(iii) (.pdf)

[Figure: 31 TAC §155.15(b)(1)(C)(iii)]

(iv) Commercial and Industrial Activity.

Figure: 31 TAC §155.15(b)(1)(C)(iv) (.pdf)

[Figure: 31 TAC §155.15(b)(1)(C)(iv)]

(v) (No change.)

(2) - (7) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101231

Mark A. Havens

Deputy Land Commissioner and Chief Clerk

School Land Board

Earliest possible date of adoption: May 9, 2021

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