(A) Required findings for issuance of permits. Before issuance of a dune protection permit, the city must make the following four affirmative findings:
(1) The proposed activity is not prohibited by Tex. Administrative Code Title 31, Part 1, Chapter 15, Subchapter A, § 15.4(c) or Tex. Administrative Code Title 31, Part 1, Chapter 15, Subchapter A, § 15.6;
(2) The proposed activity will not materially weaken dunes or materially damage dune vegetation applying the standards set forth in Tex. Administrative Code Title 31, Part 1, Chapter 15, Subchapter A, § 15.4(d);
(3) There are no practicable alternatives to the proposed activities and the impacts cannot be avoided as provided for in Tex. Administrative Code Title 31, Part 1, Chapter 15, Subchapter A, § 15.4(f)(l); and
(4) The applicant's mitigation plan will adequately minimize, mitigate and/or compensate for any unavoidable adverse effects, as provided for in Tex. Administrative Code Title 31, Part 1, Chapter 15, Subchapter A, § 15.4(f)(2)(5).
(B) Mitigation.
(1) The mitigation sequence shall be used by the city in determining whether to issue a permit, after the determination that no material weakening of dunes or material damage to dunes or dune vegetation will occur within critical dune areas or seaward of the dune protection line.
(2) The mitigation sequence consists of the following steps: avoiding the impact altogether by not taking a certain action or parts of an action; minimizing impacts by limiting the degree or magnitude of the action and its implementation; rectifying the impact by repairing, rehabilitating or restoring the affected environment; and compensating for the impact by replacing resources lost or damaged. If, for any reason, an applicant cannot demonstrate the ability to mitigate adverse effects on dunes and dune vegetation, the city shall not issue the permit. The city shall require a permittee to use the mitigation sequence as a permit condition if the city finds that an activity will result in any adverse effects on dunes or dune vegetation seaward of a dune protection line or on critical dune areas. When the city requires mitigation as a permit condition, it shall require that the permittee follow the order of the mitigation sequence as provided for in the following divisions.
(C) Avoidance. Avoidance means avoiding the effect on dunes and dune vegetation altogether by not taking a certain action or parts of an action. The city shall require permittees to avoid adverse effects on dunes and dune vegetation. The city shall not issue a permit allowing any adverse effects on dunes and dune vegetation located in critical dune areas or seaward of the dune protection line unless the applicant proves there is no practicable alternative to the proposed activity, proposed site or proposed methods for conducting the activity, and the activity will not materially weaken the dunes or dune vegetation. The city shall require permittees to include information as to practicable alternatives in the permit application. The city shall review the permit application to determine whether the permittee has considered all practicable alternatives and whether one of the practicable alternatives would cause no adverse effects on dunes and dune vegetation than the proposed activity. The city shall require permittees to employ construction methods which will have no adverse effects, unless the permittee can demonstrate that the use of the methods is not practicable. The city shall require that permittees undertaking construction in critical dune areas or seaward of a dune protection line use the following avoidance techniques.
(1) Routing of nonexempt pipelines. Nonexempt pipelines are any pipelines other than those subject to the exemption in Tex. Administrative Code Title 31, Part 1, Chapter 15, Subchapter A, § 15.3(s)(2)(A). The city shall not allow permittees to construct nonexempt pipelines within critical dune areas or seaward of a dune protection line unless there is no practicable alternative.
(2) Location of construction and beach access. The city shall require permittees proposing construction seaward of dune protection lines and within critical dune areas to locate all construction as far landward of dunes as practicable. The city shall not restrict construction which provides access to and from the public beach pursuant to this provision.
(3) Location of roads. The city shall require permittees constructing roads parallel to the beach to locate the roads as far landward of critical dune areas as practicable and shall not allow permittees to locate the roads within 200 feet landward of the natural vegetation line.
(4) Artificial runoff channels. The city shall not permit construction of new artificial channels, including stormwater runoff channels, unless there is no practicable alternative.
(D) Minimization. Minimization means minimizing effects on dunes and dune vegetation by limiting the degree or magnitude of the action and its implementation. The city shall require that permittees minimize adverse impacts to dunes and dune vegetation by limiting the degree or magnitude of the action and its implementation. If an applicant for a dune protection permit demonstrates to the city that adverse effects on dunes or dune vegetation cannot be avoided and the activity will not materially weaken dunes and dune vegetation, the city may issue a permit allowing the proposed alteration, provided that the permit contains a condition requiring the permittee to minimize adverse effects on dunes or dune vegetation to the greatest extent practicable.
(1) Routing of nonexempt pipelines. Nonexempt pipelines are any pipelines other than those subject to the exemption in Tex. Administrative Code Title 31, Part 1, Chapter 15, Subchapter A, § 15.3(s)(2)(A). If a permittee demonstrates that there is no practicable alternative to crossing critical dune areas, the city may allow a permittee to construct a pipeline across previously disturbed areas, such as blowout areas. Where use of previously disturbed areas is not practicable, the city shall require the permittee to avoid adverse effects on or disturbance of dune surfaces and shall require the mitigation sequence if the adverse effects are unavoidable.
(2) Location of construction and beach access.
(a) The city shall require permittees to minimize construction and pedestrian traffic on or across dune areas to the greatest extent practicable, taking into account trends of dune movement and beach erosion in that area.
(b) The city may allow permittees to route private and public pedestrian beach access to and from the public beach through washover areas or over elevated walkways in their approved dune protection and beach access plans. All pedestrian access routes and walkways shall be clearly and conspicuously marked with permanent signs by the city if the beach access is public.
(c) The city shall minimize proliferation of excessive private access by permitting only the minimum necessary private beach access points to the public beach from any proposed subdivision, multiple dwelling or commercial facility. In some cases, the minimum beach access points may be only one access point. In determining the appropriate grouping of access points, the city shall consider the size and scope of the development.
(d) The city and the owners and operators of commercial facilities, subdivisions and multiple dwellings shall post signs in areas where pedestrian traffic is high, explaining the functions of dunes and the importance of vegetation in preserving dunes.
(3) Location of roads.
(a) Wherever practicable, the city may require permittees to locate beach access roads in washover areas, blowout areas or other areas where dune vegetation has already been disturbed. The city shall require permittees to build the roads along the natural land contours, to minimize the width of the roads, and where possible, to improve existing access roads with elevated berms near the beach that prevent channelization of floodwaters. Where practicable, the city shall require permittees to locate roads at an oblique angle to the prevailing wind direction.
(b) Wherever practicable, the city shall provide vehicular access to and from beaches by using existing roads or from roads constructed in accordance with divisions (C)(3) and (D)(3)(a) of this section. The city shall not apply this provision in a manner which restricts public beach access.
(c) The city shall include in any permit authorizing the construction of roads a permit condition prohibiting persons from using or parking any motor vehicle on, through or across dunes in critical dune areas except for the use of vehicles on designated access ways.
(4) Artificial runoff channels. The city shall only authorize construction of artificial runoff channels (that direct stormwater flow) if the channels are located in a manner which avoids erosion and unnecessary construction of additional channels. The city shall require that permittees make maximum use of natural or existing drainage patterns, whenever practicable, when locating new channels and storm water retention basins. However, if new channels are necessary, the city shall require that permittees direct all runoff inland and not to the Gulf of Mexico through critical dune areas, where practicable.
(E) Mitigation. Mitigation means repairing, rehabilitating or restoring affected dunes and dune vegetation. The city shall require permittees, as a condition of the permit, to mitigate all adverse effects to dunes and dune vegetation which will occur after a permittee has avoided and minimized the adverse effects to the greatest extent practicable. The city shall require the permittee to mitigate damage to dunes and dune vegetation so as to provide, when compared to the pre-existing dunes and dune vegetation, an equal or greater area of vegetative cover and dune volume, an equal or greater degree of protection against damage to natural resources, and an equal or greater degree of protection against flood and erosion damage and other nuisance conditions to adjacent properties. When determining the appropriate mitigation method, the city shall consider the recommendations of the General Land Office, federal and state natural resource agencies and dune vegetation experts.
(1) Mitigation standards for dunes. The city may allow a permittee to mitigate adverse effects on dunes using vegetative or mechanical means. The city shall require that a permittee proposing to restore dunes use the following techniques:
(a) Restore dunes to approximate the naturally formed dune position or location, contour, volume, elevation, vegetative cover and sediment content in the area;
(b) Allow for the natural dynamics and migration of dunes;
(c) Use discontinuous or continuous temporary sand fences or an approved method of dune restoration, where appropriate, considering the characteristics of the site; and
(d) Restore or repair dunes using indigenous vegetation that will achieve the same protective capability or greater capability as the surrounding natural dunes.
(2) Stabilization of critical dune areas. The city shall give priority for stabilization to blowouts and breaches when permitting restoration of dunes. Before permitting stabilization of washover areas, the city shall:
(a) Assess the overall impact of the project on the beach and dune system;
(b) Consider any adverse effects on hydrology and drainage which will result from the project; and
(c) Require that equal or better public beach access be provided to compensate for impairment of any public beach access previously provided by the washover area.
(F) Compensation. Compensation means compensating for effects on dunes and dune vegetation by replacing or providing substitute dunes and dune vegetation. Compensation may be undertaken both on-site and off-site; however, off-site compensation may only be allowed as provided in division (F)(2) below.
(1) On-site compensation. On-site compensation consists of replacement of the affected dunes or dune vegetation on the property where the damage to dunes and dune vegetation occurred and seaward of the local dune protection line. The city shall require permittees to undertake compensation on the construction site, where practicable. The city shall require a permittee to follow the requirements provided in division (E)(1) above of this section and the information required by divisions (F)(3)(c) and (F)(3)(d) below when replacing dunes or dune vegetation.
(2) Off-site compensation. Off-site compensation consists of replacement of the affected dunes or dune vegetation in a location outside the boundary of the property where the damage to dunes and dune vegetation occurred. The landward limit of allowable off-site mitigation is the local dune protection line. The city shall require that a permittee's compensation efforts take place on the construction site unless the permittee demonstrates the following facts to the city:
(a) On-site compensation is not practicable;
(b) The off-site compensation will be located as close to the construction site as practicable;
(c) The proffered off-site compensation has achieved a one to one ratio of proposed adverse effects on successful, completed and stabilized restoration prior to beginning construction; and
(d) The permittee has notified FEMA, Region 6, of the proposed off-site compensation.
(3) Information required for off-site compensation. The city shall require permittees to provide the following information when proposing off-site compensation:
(a) The name, address, phone number and fax number, if applicable, of the owner of the property where the off-site compensation will be located;
(b) A legal description of property intended to be used for the proposed off-site compensation;
(c) The source of sand and the dune vegetation;
(d) All information regarding permits and certificates issued for the restoration of dunes on the compensation site;
(e) All relevant information regarding the success, current status and stabilization of the dune restoration efforts on the compensation site;
(f) Any increase in potential flood damage to the site where the adverse effects on dunes and dune vegetation will occur and to the public and private property adjacent to that site; and
(g) The proposed date of initiation of the compensation. The city shall include a condition in each permit authorizing off-site compensation which requires permittees to notify the city in writing of the actual date of initiation within ten working days after compensation is initiated. If the permittee fails to begin compensation on the date proposed in the application, the permittee shall provide the city with the reason for the delay. The city shall take this reason into account when determining whether a permittee has violated the compensation deadline.
(G) Compensation for adverse effects on dune vegetation; mitigation or compensation deadline. The city shall require that permittees compensate for adverse effects on dune vegetation by planting indigenous vegetation on the affected dunes and shall consider the recommendations of the General Land Office, federal and state natural resource agencies and dune vegetation experts. The city may allow a permittee to use temporary sand fencing or another approved method of dune restoration. The city shall prohibit a permittee from compensating for adverse effects on dune vegetation by removing existing vegetation from private or state-owned property unless the permittee has received prior written permission from the property owner or the state. In addition to the requirement that permission be obtained from the property owner, all persons are prohibited from removing vegetation from a critical dune area or seaward of a dune protection line unless specifically authorized to do so in a dune protection permit. The city shall include conditions in the permits requiring the permittee to provide a copy of the written permission for vegetation removal and to identify the source of any sand and vegetation which will be used to compensate for adverse effects on dunes and dune vegetation in the mitigation plan contained in the permit application.
(1) Initiation of compensation. The city shall require permittees to begin compensation for any adverse effect(s) to dunes and dune vegetation prior to or concurrent with the commencement of construction. If compensation is not completed prior to commencement of construction, the city shall require that the permittee provide the city with proof of financial responsibility in an amount equal to that necessary to complete the mitigation. This can be done in the form of an irrevocable letter of credit, performance bond or any other instrument acceptable to the city.
(2) Completion of compensation. The city shall require permittees to conduct compensation efforts continuously until the repaired, rehabilitated and restored dunes and dune vegetation are equal or superior to the pre-existing dunes and dune vegetation. These efforts shall include preservation and maintenance pending completion of compensation.
(3) The city's determination of completion of compensation. The city shall determine a compensation project complete when the dune restoration project's position, contour, volume, elevation and vegetative cover matches or exceeds the surrounding naturally formed dunes.
(4) State agency notification of compensation certification. The city shall provide written notification to the General Land Office after determining that the compensation is complete. The General Land Office may conduct a field inspection to verify compliance with this division. If the city does not receive an objection from the General Land Office regarding the completion of compensation within 30 working days after the General Land Office is notified in writing, the city may certify that the compensation is complete.
(5) Violation of compensation deadline. The General Land Office recognizes that the time necessary to restore dimes and dune vegetation varies with factors such as climate, time of year, soil moisture, plant stability and storm activity. The permittee shall be deemed to have failed to achieve compensation if a one to one ratio has not been achieved within three years after beginning compensation efforts.
(Ord. 663, passed 2-22-2005)