HBA-EVB, NLM C.S.H.B. 2560 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2560
By: Gray
Land & Resource Management
4/23/1999
Committee Report (Substituted)



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 help control
beach erosion along the Texas coast. Consequently, Texas does not receive
federal funding for coastal erosion. C.S.H.B. 2560 creates an erosion fund
out of which the land commissioner of the General Land Office may initiate
erosion plans and local communities may receive grants to help fight
erosion. 

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. Sets forth legislative intent.

SECTION 2.   Amends Section 33.136(a)-(e), Natural Resources Code, as
follows: (a) Prohibits a person from undertaking, notwithstanding any law
to the contrary, an action on or immediately landward of a public beach or
submerged land, including state mineral lands, 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), as applicable. Provides that a person is not
required to obtain a lease or other instrument from the commissioner or
board if the action is confined to land owned by a navigation district or
municipality. 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) Deletes reference in the survey to movement, rather than erosion,
landward. 

(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 by deleting
language 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 3.  Amends Section 33.203(10), Natural Resources Code, to define
"critical erosion area." 

 SECTION 4.  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 or
funding 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 and
grants. 

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. (a) 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; or 
(2)  the failure of an erosion response project undertaken by the
commissioner under this subchapter to fulfill its intended purpose. 

(b)  Provides that the immunity granted by this section does not apply to
an act or omission that is intentional, wilfully or wantonly negligent, or
performed with conscious indifference or reckless disregard for the safety
of others.  

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 5. Amends Sections 40.151(a) and (b), Natural Resources Code, to
provide that the coastal protection fund is established to be used by the
commissioner as a nonlapsing revolving fund for the purposes of Subchapter
H (Coastal Erosion), Chapter 33, Natural Resources Code. Makes conforming
and nonsubstantive changes. 

SECTION 6. Amends Section 40.152(a), Natural Resources Code, by amending
Section 40.152(a)(10) to include erosion response projects under Subchapter
H, in an amount not to exceed the interest accruing to the fund annually,
on the list for which money in the fund is authorized to be disbursed.
Makes conforming changes. 

SECTION 7. Amends Section 40.153, Natural Resources Code, to provide this
section does not apply to sums expended under Section 40.152(a)(10). 

SECTION 8. Amends Section 40.161, Natural Resources Code, by adding
Subsection (c), to provide that this section does not apply to a sum
expended under Section 40.152(a)(10). 

SECTION 9. 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 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. 


SECTION 11.  Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2560 differs from the original bill in SECTION 1 by redesignating
SECTION 1 of the original as SECTION 2 in the substitute. The new SECTION 1
sets forth legislative intent.  

SECTION 2 of the substitute differs from the original by prohibiting a
person from undertaking  an action on or immediately landward of a public
beach or submerged land, including state mineral lands, rather than an
action in the coastal zone related to erosion response that will cause or
contribute to shoreline erosion before meeting certain conditions. This
substitute differs from the original bill in SECTION 2 by adding the
provision that a person is not required to obtain a lease or other
instrument from the commissioner or board if the action is confined to land
owned by a navigation district or municipality. The substitute differs from
the original bill by removing the proposed language: "If a lease, easement,
or other instrument was issued by the commissioner or board in connection
with the erosion response activity, the. . ." from the notice statement
required for the survey. 

This substitute differs from the original bill by redesignating SECTION 2
of the original bill as SECTION 3, and modifying that section by not
including the proposed amendment to Section 33.203(1) from the original.
Accordingly, SECTION 3 of the substitute amends Section 33.203(10), Natural
Resources Code, defines "critical erosion area" as having the meaning
assigned to the term "critical coastal erosion area" by Section 33.601.
SECTION 3 of the original bill is redesignated as SECTION 4 of the
substitute. 

SECTION 4 of the substitute differs from SECTION 3 of the original bill by
defining "hard structure" (proposed Section 33.601(6), Natural Resources
Code) as an erosion response structure such as a bulkhead, seawall,
revetment, jetty or groin or a similar structure, rather than a hard or
rigid shoreline structure built to protect upland property including a
jetty, groin, bulkhead, seawall, riprap, rubble mound, or revetment or
similar structure. SECTION 4 of the substitute differs from SECTION 3 of
the original bill in proposed Section 33.603, Natural Resources Code, by
providing that this chapter (Chapter 33, Natural Resources Code) does not
authorize the construction or funding, rather than construction, of a hard
structure on or landward of a public beach.  

Also in SECTION 4, Section 33.604 (Coastal Erosion Response Account) in the
substitute differs from Section 33.604 in the original by deleting
Subsection (b)(3), which provided that the coastal erosion response account
consists of fees remitted to the comptroller under Section 118.017, Local
Government Code, and Sections 521.425(b) and 522.029(i), Transportation
Code. Subdivision (4) of the original is redesignated as Subdivision (3).
Deletes proposed Subdivision (5) which provided that the coastal erosion
response account consists of all money received by the comptroller or
commissioner from any other source for the purposes of this subchapter.
Section 33.604 in the substitute also differs from Section 33.604 in the
original by deleting Subsection (c), which required 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)(3) 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. Makes a conforming
change. 

SECTION 4 of the substitute differs from SECTION 3 of the original bill by
amending proposed Section 33.611 (Immunity) to delete the subdivision that
sets forth that this state, the commissioner, and land office are immune
from suit for damages and from liability for an act or omission related to
any other matter related to erosion response by the commissioner provided
by this subchapter; and adding the provision that the immunity granted by
this section does not apply to an act or omission that is intentional,
wilfully or wantonly negligent, or performed with conscious indifference or
reckless disregard for the safety of others. 

This substitute differs from the original bill by deleting SECTIONS 5
through 9 of the original. SECTION 5 of the original bill authorized the
county clerk of a county to collect a certain fee. SECTION 6 of the
original bill created a coastal erosion response fee. SECTION 7 of the
original bill required each applicant for issuance or renewal of a driver's
license, in addition to other fees, to pay a coastal erosion response fee,
and prohibited the department from imposing the fee during a state fiscal
biennium if the department received a certain notice. SECTION 8 of the
original bill required the department to remit the coastal erosion response
fee, less certain costs, to the comptroller to the credit of the coastal
erosion response account. SECTION 9 of the original bill required each
applicant for issuance or renewal of a commercial driver's license, in
addition to other fees, to pay a coastal erosion response fee, and
prohibited the department from  imposing the fee during a state fiscal
biennium if the department received a certain notice. SECTION 9 of the
original bill also required the department to remit the coastal erosion
response fee, less certain costs, to the comptroller to the credit of the
coastal erosion response account. 

SECTION 5 of the substitute amends Sections 40.151(a) and (b), Natural
Resources Code, to provide that the coastal protection fund is established
to be used by the commissioner as a nonlapsing revolving fund for the
purposes of Subchapter H (Coastal Erosion), Chapter 33, Natural Resources
Code. Makes conforming and nonsubstantive changes. 

SECTION 6 of the substitute amends Section 40.152(a), Natural Resources
Code, by adding Section 40.152(a)(10) to include erosion response projects
under Subchapter H, in an amount not to exceed the interest accruing to the
fund annually, on the list for which money in the fund is authorized to be
disbursed. Makes conforming changes. 

SECTION 7 of the substitute amends Section 40.153, Natural Resources Code,
to provide that this section does not apply to sums expended under Section
40.152(a)(10). 

SECTION 8 of the substitute amends Section 40.161, Natural Resources Code,
by adding Subsection (c), to provide that this section does not apply to a
sum expended under Section 40.152(a)(10). 

SECTION 9 of the substitute is redesignated from SECTION 4 of the original
bill. 

SECTION 10 of the substitute differs from SECTION 10 of the original by
deleting Subsections (e) and (f) to make conforming changes related to fees
required in sections of the original bill that do not appear in the
substitute.