Timothy M. Mulvaney, J.D.

In the spring of 2008, the Texas General Land Office (GLO) proposed new regulations to address coastal erosion in an effort to implement certain provisions of 2005 legislation. As the public comment period is coming to a close on August 15, 2008, debate on the regulations amongst landowners, municipalities, geologists, environmentalists, and recreational users of the Gulf shore is reaching a climax over issues of shore protection funding, public access and the alleged taking of private property without the provision of just compensation.

Background
In accord with a common law principle emanating from Roman times known as the public trust doctrine, states and coastal municipalities share the responsibilities as trustee of certain natural resources for the general public. Originally, in response to beachfront owners impeding Texans’ longstanding practice of driving along the beach, the state legislature enacted the Open Beaches Act (OBA) in 1959.1 The OBA defines these common law rights by stating that, while a beachfront property owner may hold title to the dry sand beach, the beach seaward of the line of dune vegetation remains impressed with public rights of access and use if the public historically used the beach for those purposes (public access easement).

Amidst enforcement obstacles in light of intensifying coastal development, the legislature amended the OBA in 19912 to authorize the Commissioner of the GLO to promulgate regulations protecting these public rights.3 The amended OBA, as well as the state’s Dune Protection Program,4 is intended to assist landowners and coastal communities in protecting and preserving these rights for the benefit of all Texans. The amended OBA also seeks to respect the rights of private property owners, and to that end recognizes circumstances where it may be necessary to convert vehicular access to pedestrian only beaches. Current GLO regulations provide guidance to coastal cities and counties for adopting beach access plans to protect the access rights and maintain a functioning beach and dune system to reduce the erosion of the state’s beaches. The state reviews these local plans to assure they meet the minimum standards set forth in the GLO regulations.

   In light of a significant an­ nual erosion rate, and the resultant migration of both the seaward line of dune vegetation and the public access easement, many homes are now within the easement area. Indeed, along some stretches of coastline, waves lap up against the pilings of homes. Under the OBA, as amended in 1991 and following the expiration of a two-year enforcement moratorium in June of 2006, local governments have the authority to institute enforcement actions against the owners of these homes within the public easement area. When necessary to protect public health and safety, enforcement could result in removal or relocation of the homes on public beaches in erosion-prone areas.5

The Proposed Regulatory Changes
The proposed new regulations and regulatory amendments are divided into two major subsections. The first provides new procedures for local governments and the GLO to follow when processing beach construction certificates and dune protection permits, and when developing beach access and use plans. The second subsection offers guidelines for local governments that choose to adopt erosion response plans containing a building setback line that prevents building between that line and the water’s edge.

The proposed guidelines identify specific factors that local governments should consider when selecting a setback line, in an effort to encourage counties to plan aggressively for erosion prior to requesting state funding for costly erosion control projects and disaster response assistance.6 For example, the regulations recommend that local governmental entities adopt erosion response plans with a setback from the line of dune vegetation that is 60 times the annual erosion rate, or 300 feet landward of the mean high water line, whichever is greater. However, presumably in light of the United States Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Coun­ cil 7 declaring a categorical unconstitutional taking when government regulation destroys substantially all economic and beneficial use of property, the new regulations include an exception that allows building seaward of the setback line if no practicable alternative exists. In addition, any areas that are already developed or platted are exempt from the regulations, and homes that are destroyed by a destructive event such as storm or fire can be rebuilt within the footprint of the original structure.

Compliance with the regulations if adopted, would be voluntary, as Texas’s fourteen coastal counties adhere to their own beach management plans. However, those counties with standards lower than those set forth in the proposed regulations would risk losing state funding, distributed at the discretion of the Commissioner of the GLO, for erosion control projects such as shoreline stabilization and beach replenishment. Nueces County currently maintains the strictest coastal setback line in the state at 350 feet landward from the line of dune vegetation.8 On the other end of the spectrum, Galveston’s current setback requirement is just 25 feet from the line of dune vegetation.9 The GLO contends that transformation in the way beach construction is authorized are necessary to convince state legislators to continue utilizing state taxpayer money for erosion control projects, and could result in property owners qualifying for reduced insurance rates under National Flood Insurance Program.10

Moving Forward
The GLO held two public hearings on July 8, 2008 in Galveston County, where the provisions regarding increasing local setback lines faced considerable opposition. As of this publication’s editorial deadline, the GLO had not adopted the regulatory proposal. While coastal geologists and environmentalists applaud the proposed regulations as a prudent response to sea level rise associated with a changing climate and a reasonable measure to combat the degradation of public rights to natural resources through over-development, many shoreline residents and local officials are concerned that the regulations would significantly diminish home values and the associated tax base, daunt development, and provide insurance companies with justification to deny claims or increase premiums for weather-related insurance.11 Stay tuned to Water Log for continuing coverage of these proposed regulations, and please contact Water Log’s associate editor at tmulvane@olemiss.edu if similar public access or setback disputes have arisen in your community.

Endnotes
1.    1959 Tex. Sess. Laws Serv. page no. 108 (West).
2.    Tex. Nat. Res. Code Ann. A7 61.001 et seq.
3.    Id. A7 61.011(d).
4.    Id. A7 63.001 et seq.
5.    The State provides some financial compensation for removal and relocation. See, generally, Eddie R. Fisher and Angela L. Sunley, A Line in the Sand: Balancing the Texas Open Beaches Act and Coastal Development (July 22, 2007) (presentation at the Proceedings of Coastal Zone 2007, Portland, OR), available at http://www.csc.noaa.gov/cz/2007/Coastal_Zone_07_Proceedings/PDFs/Tuesday_Abstracts/2658.Fisher.pdf (noting that Commissioner of GLO has offered up to $50,000 for removal or relocation for homes 100% seaward of the line of dune vegetation).
6.    Leigh Jones, Surfside Shows Need for Setback Rules, The Galveston Daily News, June 28, 2008.
7.    505 U.S. 1003 (1992).
8.    Beth Wilson, Texas Prepares Rules on Beaches, Corpus-Christi Caller Times, April 13, 2008.
9.    Leigh Jones, Beach Building Rules Set Up Coastal Clash, The Galveston Daily News, June 22, 2008.
10.  Leigh Jones, Locals Still Suspicious on Beach Setback Rules, The Galveston Daily News, July 9, 2008.
11.  Jones, supra note 6.