HBA-EVB, NLM H.B. 2560 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2560 By: Gray Land & Resource Management 4/12/1999 Introduced BACKGROUND AND PURPOSE There are 389 miles of Texas coastline, all of which is open to the public as public beach. Currently, there is no permanent fund to aid in beach erosion along the Texas coast. Consequently, Texas does not receive federal funding for coastal erosion. H.B. 2560 creates an erosion fund out of which the land commissioner may initiate erosion plans and local communities may receive grants to help fight erosion. H.B. 2560 is funded through an appropriations request, but if that fails it would invoke two funding mechanisms, a deed recording fee not to exceed $5 in catastrophic windpool counties, and a fee not to exceed 75 cents on license plate applications and renewals statewide. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority previously delegated to the commissioner of the General Land Office is modified in SECTION 2 ( Section 33.602(c), Natural Resources Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 33.136(a)-(e), Natural Resources Code, as follows: (a) Prohibits a person from undertaking, notwithstanding any law to the contrary, in the coastal zone, rather than on the public beach (as defined in Section 61.001(8), Natural Resources Code), an action relating to erosion response that will cause or contribute to shoreline alteration before the person has conducted and filed a coastal boundary survey in the same manner as the survey of public land required by Chapter 21(Surveys and Field Notes), Natural Resources Code, and any applicable rule of the commissioner of the General Land Office (commissioner), and has obtained any required lease or other instrument from the commissioner or the School Land Board (board) (Section 33.004 (Definitions), Natural Resources Code), as applicable. Provides that, on filing of the survey, the shoreline depicted on the survey is a fixed line for the purpose of locating a shoreline boundary, subject to movement, rather than erosion, landward of that line. (b) Provides that the survey must add the following sentence to the required statement: "If a lease, easement, or other instrument was issued by the commissioner or board in connection with the erosion response activity, the line depicted on this survey fixes the shoreline for the purpose of locating a shoreline boundary, subject to movement, rather than erosion, landward as provided by Section 33.136, Natural Resources Code." Deletes reference in the survey to erosion response activity on the public beach. Makes conforming changes. (c) Requires the commissioner to provide notice of the approval of a coastal boundary survey, rather than the commissioner's action, within 30 days after the date the commissioner approves a coastal boundary survey, rather than a coastal boundary survey fixing the location of the shoreline, under this section by publication for two consecutive weeks in a newspaper of general circulation in the county or counties in which the land depicted in the survey is located; and filing a copy of the approval, rather than the commissioner's decision, in the archives and records division of the land office. (d) Provides that a person who claims title to permanent school fund land as a result of accretion, reliction, or avulsion in the coastal zone on or after September 1, 1999, must, in order to prevail in the claim, prove that certain enumerated conditions exist. Makes conforming changes relating to the public beach in an area where the shoreline was or may have been changed by an action relating to erosion response. (e) Makes a conforming change. SECTION 2. Amends Sections 33.203(1) and (10), Natural Resources Code, to include critical coastal erosion areas, rather than critical erosion areas; and to provide that "critical coastal erosion area" has the meaning assigned by Section 33.601 (Coastal Erosion Duties and Authority), rather than an area designated by the land commissioner under Section 33.601(b). SECTION 3. Amends Subchapter H, Chapter 33, Natural Resources Code, as follows: SUBCHAPTER H. COASTAL EROSION Sec. 33.601. DEFINITIONS. Defines "account," "beach nourishment," "coastal erosion," "critical coastal erosion area," "erosion response project," "hard structure," "institution of higher education," "local government," "project cooperation agreement," "public beach," "qualified project partner," and "shared project cost." Sec. 33.602. COASTAL EROSION DUTIES AND AUTHORITY. (a) Requires the land office to implement a program, rather than act as the lead agency for the coordination, of coastal erosion avoidance, remediation, and planning. Redesignated from existing Section 33.601. Makes a nonsubstantive change. (b) Requires the commissioner to publish and periodically update a coastal erosion response plan. Requires the commissioner to develop the plan in coordination with state and federal agencies and local governments and provide for public input on the plan. Provides that the plan must, rather than requires the commissioner to, identify critical coastal erosion areas and prioritize coastal erosion response studies and projects, so that benefits are balanced throughout the coast; federal and local financial participation is maximized; studies and projects are scheduled to achieve efficiencies and economies of scale; and the severity of erosion effects in each area is taken into account. Transfers rulemaking authority to Subsection (c). Makes conforming changes. (c) Authorizes the commissioner to adopt rules necessary to implement this subchapter. Sec. 33.603. COASTAL EROSION STUDIES AND PROJECTS. (a) Requires the General Land Office (GLO) to undertake coastal erosion studies, demonstration projects, and response projects if GLO receives legislative appropriations or other funding for that purpose. Requires GLO, if reasonable and appropriate, to 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. Redesignated from existing Section 33.602. Makes conforming changes. (b) Requires the studies and projects to address enumerated issues. (c) Provides that an agreement between the commissioner and a qualified project partner to undertake a coastal erosion response study or project must require the qualified project partner to pay at least 25 percent of the shared project cost before completion of the project or following completion of the project, in accordance with a schedule provided by the agreement. Authorizes such an agreement to contain other terms governing the study or project. (d) Provides that this chapter does not authorize the construction of a hard structure on or landward of a public beach. Sec. 33.604. COASTAL EROSION RESPONSE ACCOUNT. (a) Authorizes the appropriation of the coastal erosion response account, an account in the general revenue fund, only to the commissioner and authorizes this fund to be used only for the purpose of implementing this subchapter. (b) Provides that the account consists of a specified list of monies, fees, and grants. (c) Requires the comptroller to notify, not later than August 1 preceding that state fiscal biennium, each entity otherwise obligated to impose the fees described by Subsection (b) that the entity may not impose the fees during that state fiscal biennium if the legislature appropriates at least $15 million for the purposes of this subchapter for a state fiscal biennium. Sec. 33.605. USES OF ACCOUNT. (a) Authorizes the money in the account to be used for any action authorized by this subchapter. (b) Provides that the commissioner must approve an expenditure from the account. Requires the commissioner to consider, in determining whether to approve an expenditure for a study or project: (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. Sec. 33.606. GRANTS AND GIFTS. Redesignated from Section 33.603, Natural Resources Code. Sec. 33.607. COASTAL EROSION PUBLIC AWARENESS AND EDUCATION. (a) Makes no change. (b) Requires the commissioner, in consultation with the Bureau of Economic Geology of The University of Texas at Austin and coastal county and municipal governments, on an ongoing basis, to monitor historical erosion rates at each location along the shore of the Gulf of Mexico. Makes conforming changes. (c) Requires the commissioner to make historical erosion data accessible, through the Internet and otherwise, to the public and persons receiving the notice required under Section 61.025 (Disclosure to Purchaser of Property), Natural Resources Code. (d) Encourages a local government subject to Chapter 61 or 63 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, rather than a 50-year shoreline retreat. Requires the local government to 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. Redesignated from Section 33.604. Deletes requirement to report back to the legislature with recommendations. Makes conforming changes. Sec. 33.608. REPORT TO LEGISLATURE. Requires the commissioner to submit to the legislature, each biennium, a report listing certain enumerated information related to erosion. Sec. 33.609. LANDOWNER CONSENT. (a) Prohibits the commissioner from undertaking a coastal erosion response project on permanent school fund land without first obtaining the written consent of the school land board; or on 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) Provides that if the commissioner cannot determine the identity of or locate a property owner, consent is considered to have been given if 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 the property owner does not object on or before the 20th day after the last date notice is published under Subdivision (1). Sec. 33.610. REMOVAL OF SUBMERGED LAND FROM APPRAISAL AND TAX ROLLS. (a) Authorizes the commissioner to 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 if the commissioner determines that land has become submerged by erosion or subsidence and as a result is dedicated to the permanent school fund. Provides that the notice must include a legal description of the land. (b) Requires the appraisal district, on receipt of notice under Subsection (a), to remove the land from the appraisal roll, and requires each taxing unit to remove the land from its tax roll. Sec. 33.611. IMMUNITY. Provides that 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; (2) the failure of an erosion response project undertaken by the commissioner under this subchapter to fulfill its intended purpose; or (3) any other matter related to erosion response by the commissioner provided for by this subchapter. Sec. 33.612. JUDICIAL REVIEW. (a) Provides that 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. Provides that a person seeking review must prove, in order to prevail, that the action complained of was arbitrary, capricious, or otherwise not in accordance with law. (b) Provides that the venue for an action relating to this subchapter is in Travis County. SECTION 4. Amends Section 61.025(a), Natural Resources Code (relating to a statement that must be included in a contract for the sale or conveyance of an interest, other than mineral, leasehold, or security interest, in real property located seaward of the Gulf Coast Intracoastal Waterway) to make a conforming change. SECTION 5. Amends Section 118.011 (Fee Schedule), Local Government Code, by adding Subsection (e), as follows: (e) Authorizes the county clerk of a county located in a seacoast territory under Article 21.49 (Catastrophe Property Insurance Pool Act), Insurance Code, to collect the following fee for services rendered to any person: Coastal Erosion Response (Sec. 118.017) $5.00 SECTION 6. Amends Subchapter B, Chapter 118 (Fees Charged by County Officers), Local Government Code, by adding Section 118.017, as follows: Sec. 118.017. COASTAL EROSION RESPONSE FEE. (a) Provides that the fee for "Coastal Erosion Response" under Section 118.011 is for filing and recording, including indexing, in the real property records in the office of the county clerk a document that is subject to the fee for "Real Property Records Filing" under that section. Provides that the fee is in addition to any other fee authorized by this chapter or other law. (b) Prohibits the county clerk from collecting the fee during a state fiscal biennium if the county clerk receives a notice under Section 33.604(c), Natural Resources Code. (c) Requires the county clerk to keep separate records of money collected as fees under this section and requires the county clerk to deposit the money in the county treasury. (d) Requires the county clerk to remit the money, monthly, to the comptroller in the manner and with the report required by the comptroller. (e) Requires the comptroller to deposit money received under this section to the credit of the coastal erosion response account. Authorizes money in the account to be used only for the purposes prescribed by Section 33.605, Natural Resources Code. SECTION 7. Amends Section 521.421 (License Fees; Examination Fees), Transportation Code, by adding Subsection (g), to require each applicant for issuance or renewal of a driver's license to pay, in addition to the fee imposed under another subsection of this section, a coastal erosion response account fee of 75 cents. Prohibits the department from imposing the fee during a state fiscal biennium if the department receives a notice under Section 33.604(c), Natural Resources Code. SECTION 8. Amends Section 521.425 (Remittance of Fees and Charges), Transportation Code, to require the department to remit the amount of the coastal erosion response account fee imposed under Section 521.421(g), less an amount equal to the department's administrative costs, to the comptroller for deposit to the credit of the coastal erosion response account established under Section 33.604, Natural Resources Code. SECTION 9. Amends Section 522.029 (Operation of Motor Vehicle by New State Residents), Transportation Code, by adding Subsections (h) and (i), as follows: (h) Requires each applicant for issuance or renewal of a commercial driver's license or commercial driver learner's permit, in addition to the fee imposed under another subsection of this section, to pay a coastal erosion response account fee of 75 cents. Prohibits the department from imposing the fee during a state fiscal biennium if the department receives a notice under Section 33.604(c), Natural Resources Code. (i) Requires the department to remit the amount of the coastal erosion response account fee imposed under Subsection (h), less an amount equal to the department's administrative costs, to the comptroller for deposit to the credit of the coastal erosion response account established under Section 33.604, Natural Resources Code. SECTION 10. (a) Effective date: September 1, 1999. (b) Makes application of Section 33.136(d), Natural Resources Code, as amended by this Act, prospective. (c) Makes application of Section 33.609, Natural Resources Code, as added by this Act, prospective. (d) Makes application of Section 33.611, Natural Resources Code, as added by this Act, prospective. (e) Provides that the fee required by Section 118.017, Local Government Code, as added by this Act, applies only to a document filed on or after the effective date of this Act. (f) Provides that the fees required by Sections 521.421(g) and 522.029(h), Transportation Code, as added by this Act, apply only to the issuance or renewal of a driver's license, commercial driver's license, or commercial driver learner's permit on or after the effective date of this Act. SECTION 11. Emergency clause.