    [From the U.S. Government Printing Office, www.gpo.gov]

    Texas Coastal

    Management
    Program
    Final Environmental
    Impact Statement/

    Prepared by:
    National Oceanic and Atmospheric Administration
    Office of Ocean and Coastal Resource Management
    State of Texas        A   'pmsOTP
    Coastal Coordination Council

    *   August 1996

            United States Department of Commerce

         Combined Coastal Management Program and
           Final Environmental Impact Statement for
                       the State of Texas

                          August 1996

                           Prepared by:

          Office of Ocean and Coastal Resource Management
          National Oceanic and Atmospheric Administration
                   U.S. Department of Commerce
                 1305 East-West Highway, N/ORM3
                  Silver Spring, Maryland 20910

                               and

                        The State of Texas
                    Stephen F. Austin Building
                     1700 N. Congress Avenue
                    Austin, Texas 78701-1495

    The preparation of this publication was financed by the Office of
          Ocean and Coastal Resource Management, NOAA.

     The Texas General Land Office does not discriminate on the basis of race, color, national
    origin, sex, religion, age or disability in employment or the provision of services. To request
    an accessible format, call 512-463-2613 or contact us through RELAY Texas at 1-800-735-
       2989 or write to 1700 N. Congress Ave., Austin, Texas 78701-1495. Reproduced on
                                          recycled paper.

                                           ABSTRACT

    DESIGNATION:         Final Environmental Impact Statement

    TITLE:               Proposed Federal Approval of the Texas Coastal Management Program

    ABSTRACT:            The State of Texas has submitted its Coastal Management Program to the
                         Office of Ocean and Coastal Resource Management for approval pursuant
                         to Section 306 of the Federal Coastal Zone Management Act of 1972 as
                         amended (CZMA), 16 U.S.C. 1451 et seq. Approval would allow
                         program administrative grants to be awarded to the State and would
                         require that Federal actions be consistent with the program. This
                         document includes a copy of the program, which is a comprehensive
                         management program for coastal land and water use activities. It consists
                         of numerous policies on diverse management issues which are
                         administered under Texas laws and is the culmination of several years of
                         program development. The Texas Coastal Management Program either
                         promotes the beneficial use of coastal resources, prevents their
                         impairment, or manages major activities that substantially affect numerous
                         resources. The program will enhance decision-making processes used for
                         determining the appropriateness of actions in the coastal area.

                         Approval and implementation of the program will enhance governance of
                         Texas's coastal land and water uses according to the coastal policies and
                         standards contained in Texas's statutes, authorities and rules. Federal
                         alternatives to program approval include delaying or denying approval, if
                         certain requirements of the Coastal Zone Management Act have not been
                         met. The State could modify parts of the program or withdraw its
                         application for Federal approval if either of the above Federal alternatives
                         results from circulation of this document.

    APPLICANT:           State of Texas, Texas General Land Office

    LEAD AGENCY:  U.S. DEPARTMENT OF COMMERCE
                         National Oceanic and Atmospheric Administration
                         Office of Ocean and Coastal Resource Management

    FEDERAL              Bill O'Beirne
    CONTACT:             Office of Ocean and Coastal Resource Management
                         NOAA - U.S. Department of Commerce
                         1305 East-West Highway, N/ORM3
                         Silver Spring, Maryland 20910
                         (301) 713-3109, ext. 160
                         E-mail: <bobeirne~coasts.nos.noaa.gov>

    STATE
    CONTACT:             Janet Fatheree
                        Secretary
                        Texas Coastal Coordination Council
                        Stephen F. Austin Building
                        1700 N. Congress Avenue
                       Austin, Texas 78701-1495
                        (512) 463-5385
                       E-mail: <jfathereeglo.state.tx.us>

    COMMENTS:            Comments on the Final Environmental Impact Statement are due to
                       NOAA 30 days after date published.

    COASTAL
    COORDINATION
    COUNCIL:             Garry Mauro, Texas Land Commissioner, Chairman
                       John Barrett, Agriculture Representative
                       Lee Bass, Parks and Wildlife Commission
                       Bob Dunkin, Coastal Citizen Representative
                       Fred Heldenfels, Coastal Business Representative
                       David Laney, Texas Transportation Commission
                       William Madden, Texas Water Development Board
                       Barry McBee, Texas Natural Resource Conservation Commission
                       C.F. "Dick" Schendel, Texas State Soil and Water Conservation Board
                       Ed Stuart, Coastal Local Government Representative
                       Barry Williamson, Railroad Commission of Texas

    NOTE TO READERS

    The National Environmental Policy Act (NEPA) of 1969 requires that an environmental impact
    statement be prepared as part of the review and approval process by Federal government agencies
    of major actions which significantly affect the quality of the human environment. The Federal
    action contemplated is approval of the Texas Coastal Management Program under Section 306 of
    the Federal Coastal Zone Management Act of 1972, as amended (CZMA). It is the general
    policy of the Federal Office of Ocean and Coastal Resource Management (OCRM) to issue
    combined environmental impact statements and program documents.

    Part I of this Final Environmental Impact Statement (FEIS) was prepared jointly by the the
    National Oceanic and Atmospheric Administration's Office of Ocean and Coastal Resource
    Management (NOAA) and the State of Texas and provides summary information concerning the
    Texas Coastal Management Program (TCMP), including how the program addresses the
    requirements of the CZMA. Part II of the FEIS is a description of the TCMP and was prepared
    by the State. It has been reviewed by NOAA and is relied upon as a description of the proposed
    action for purposes of NEPA. Part III fulfills the remaining NEPA requirements for an FEIS and
    was prepared by NOAA with assistance from the State of Texas. Part VII contains public
    comments on the DEIS and NOAA's response to those comments.

    An immediate effect of federal approval of the Texas program is the qualification of the State to
    receive Federal matching funds for use in administering the program. The CZMA also requires
    Federal agencies to undertake activities consistent to the maximum extent practicable with
    federally approved state coastal management programs. In addition, upon program approval,
    entities within the State of Texas will be eligible to apply for deepwater port licenses from the
    U.S. Coast Guard, pursuant to the Deepwater Port Act of 1974 (33 U.S.C.A. � 1503).

    For purposes of reviewing this proposed action, the key questions are:

           *      whether the Texas program is consistent with the objectives and policies of the
                  national legislation;

           *      whether the award of Federal funds under Section 306 of the Federal Act will help
                  Texas to meet those objectives;

           � whether Texas management policies, authorities, and organizational structure are
                  adequate to implement the program; and

           *      whether there will be a net environmental gain as a result of program approval and
                  implementation.

    NOAA has made a preliminary determination that the answers to these questions are affirmative.
    NOAA wants the widest possible circulation of this document to all interested agencies and
    parties in order to receive the fullest expression of opinion on these questions. NOAA thanks
    those participating in the review of the TCMP and this FEIS.

                                                 iii

    iv

                        TEXAS COASTAL MANAGEMENT PROGRAM
                                              AND
                      FINAL ENVIRONMENTAL IMPACT STATEMENT

                                    TABLE OF CONTENTS

    Part I. OVERVIEW

    A. Summary of the Texas Coastal Management Program ................................... I-1
           1. Scope of the Program ....................................................... 1-2
          2. Program Goals and Policies .................................................. 1-3
           3. Program Organization and Implementation ...................................... 1-4
          4. Other Special Planning Requirements of the CZMA ............................... 1-9

    B. Changes the Program Will Make ................................................... 1-10
           1. Governmental Accountability, Responsiveness and Coordination ................... 1-10
          2. Dredging in Coastal Waters ................................................. 1-10
          3. Development on the Gulf of Mexico Shoreline ...................l............... -11
          4. Development of Coastal Wetlands and Other Critical Areas ........................ 1-12
          5. Program Objectives and Action Items ......................................... 1-12
          6. Effects of Federal Approval ................................................. 1-13

    C. The Federal Coastal Zone Management Act ........................................... 1-14

    D. Cross Reference to Program Requirements ........................................... 1-17

    Part H1. DESCRIPTION OF THE TEXAS COASTAL MANAGEMENT PROGRAM

       Chapter One - Introduction
          A. The Texas Coast ..........................................................1-1
          B. The Texas Coastal Management Program: A Cooperative Solution .................. 1-1
          C. Principal Issues of State Concern .............................................1-2
          D. Coastal Natural Resource Areas ..............................................1-4
          E. Uses to Be Managed ........................................................1-7
          F. Goals of the Texas Coastal Management Program ............................... 1-8
          G. A Strategy for the Texas Coast ..............................................1-8
          H. What the TCMP will Accomplish ............................................1-9

      Chapter Two - Texas Coastal Management Procram Boundarv
          A. Introduction ..............................................................2-1
          B. General Description of the Coastal Zone Boundary ...............................2-1
          C. Legal Description of the Coastal Zone Boundary ..................................2-2
            (1) The Inland Boundary .....................................................2-2
            (2) The Seaward Boundary ...................................................2-5
            (3) The Interstate Boundary with the State of Louisiana ............................2-5
            (4) The Boundary with the Republic of Mexico ...................................2-5
            (5) Excluded Federal Lands ..................................................2-5
          D. Delineation of the Coastal Management Boundary ................................2-7

                                               V

      Chapter Three - Organizational Structure For Implementation
           A. Implementation ...........................................................3-1
              1. Coastal Coordination Council .............................................3-1
              2. Implementation Mechanisms ..............................................3-2
                a. Executive Committee of the Council ......................................3-2
                b. Permitting Assistance Group ............................................3-3
                c. Interagency Coordination Groups ........................................3-3
                d. Maintenance Dredging Memorandum of Agreement .........................3-4
                e. Trans-Texas Program Policy Management Committee .......................3-4
                f. Advisory Committee ..................................................3-4
                g. Corps of Engineers Preapplication Process .................................3-5
              3. Texas General Land Office-Lead State Coastal Agency ........................3-5
              4. Networked State Agencies and Subdivisions Responsible for Implementation . .....3-6
           B. Compliance Monitoring ...................................................3-7
               1. Coastal Coordination Council .............................................3-7
              2. Texas General Land Office ...............................................3-8
               a. Monitoring Mechanisms and Procedures ...................................3-8
               b. Administrative Monitoring Capacity .......................................3-9
              3. Networked State Agencies and Subdivisions Responsible for Monitoring .    ..........3-9
           C. Enforcement .............................................................3-9
              1. Coastal Coordination Council .............................................3-9
              2. Attorney General ......................................................3-10
              3. Texas General Land Office ..............................................3-10
              4. Networked State Agencies and Subdivisions Responsible for Enforcement .   .......3-10
           D. Local Government Involvement .............................................3-11

    Chapter Four - Procram Goals and Policies
          A. Introduction .............................................................. 4-1
          B. TCMP Goals .............................................................4-2
          C. Coastal Natural Resource Areas (CNRAs) ......................................4-3
          D. Enforceable Policies of the TCMP ............................................4-6
              1. Construction of Electric Generating and Transmission Facilities .................4-6
              2. Construction, Operation and Maintenance of Oil and Gas Exploration
                  and Production Facilities ................................................4-9
              3. Discharges of Wastewater and Disposal of Waste from Oil and Gas
                  Exploration and Production Activities ....................................4-13
              4. Construction and Operation of Solid Waste Treatment, Storage, and
                 Disposal Facilities ....................................................4-16
              5. Prevention, Response, and Remediation of Oil Spills .........................4-19
              6. Discharge of Municipal and Industrial Wastewater to Coastal Waters ............4-20
              7. Nonpoint-Sources of Water Pollution .................................... 4-25
              8. Development in Critical Areas ..........................................4-29
              9. Construction of Waterfront Facilities and Other Structures on
                  Submerged Lands ....................................................4-46
             10. Dredging and Dredged Material Disposal and Placement ......................4-57
             11. Construction in the Beach/Dune System ...................................4-77
             12. Development in Coastal Hazard Areas ....................................4-82
             13. Development within Coastal Barrier Resource System Units
                 and Otherwise Protected Areas on Coastal Barriers ..........................4-83

                                                vi

    Chapter Four - Program Goals and Policies (Cont.)

              14. Development in State Parks, Wildlife Management Areas, or
                  Preserves ...........................................................4-87
              15. Alteration of Coastal Historic Areas ......................................4-89
              16. Transportation .......................................................4-92
              17. Emission of Air Pollutants ..............................................4-95
              18. Appropriations of Water ...............................................4-96
              19. Levee and Flood Control Projects .......................................4-102
             20. Major Actions ......................................................4-105
             21. Administrative Policies ...............................................4-106
           E. Advisory Policies ........................................................4-107

    Chapter Five - Ensurina Comnliance With Propram Policies
           A. Introduction ..............................................................5-1
           B. Consistency of Agency Rules: The Council's Primary Tool ........................5-1
               1. Incentives for Rule Certification: Thresholds ................................5-1
               2. Rule Certification Procedures ............................................5-2
               3. Ensuring Compliance: Decertification .....................................5-3
           C. Consistency of Permits and Other Individual Actions .............................5-4
               1. Means of Ensuring Consistency of Individual Actions .........................5-4
               2. Action by Networked Agency or Subdivision ...............................5-5
               3. Action by a Non-Networked Agency or Subdivision ..........................5-6
               4. Council Review of Individual Actions .....................................5-6
               5. Third Party Action ....................................................5-9
          D. City and County Management of the Beach/Dune System ........................5-11
          E. Federal Consistency Review ...............................................5-11
               1. Introduction .........................................................5-11
               2. Federal Decisions Covered by TCMP .....................................5-12
               3. General Process for Federal Consistency Review ............................5-15
               4. Federal Activities and Development Projects ...............................5-16
                  a. Federal Activities: Negative Determinations ..............................5-17
                  b. Federal Activities: General Consistency Determinations ....................5-17
                  c. Consistency Determinations for Proposed Development Projects .............5-18
                  d. Federal Activities: Determinations for Activities Initiated Prior
                    to Federal Approval of the TCMP ......................................5-18
                  e. Federal Activities: Council Referral and Review Procedures ................5-18
                  f. Special Consistency Review Process for Development Projects
                   for which an Interagency Coordination Group is Formed ....................5-19
               5. Federal Agency Actions ................................................5-21
                 a. Federal Agency Actions: Council Referral and Review Procedures ............5-23
                 b. Federal Agency Actions: General Concurrence ...........................5-24
               6. Outer Continental Shelf (OCS) Plans .....................................5-24
                 a. OCS Plans: Council Referral and Review Process .........................5-25
                 b. Amended or New OCS Plans ..........................................5-26
                 c. Compliance with OCS Plans ..........................................5-27
               7. State and Local Government Applications for Federal Assistance ...............5-28
                 a. Federal Assistance: Council Referral and Review Procedures ................5-28
               8. Mediation of Disputes by the Secretary of Commerce .........................5-29

                                                vii

            9. Secretarial Review Related to the Objectives or Purposes of the Act
              and National Security Interests......................5-29
           10. Review by the Assistant Administrator on Behalf of Interested Parties.......5-30
    Chapter Six - Special Plannine Elements..........................6-1
         A. Shorefront Planning
           1. Access to Gulf Beaches ..........................6-1
           2. Access to Bayshores and Coastal Waters....................6-2
           3. Enforceable Policies and Legal Authorities...................6-3
           4. Funding Programs.............................6-3
         B. Shoreline Erosion Response ..........................6-4
           1. Introduction ...............................6-4
           2. Identifying and Assessing Shoreline Erosion ..................6-5
           3. Management of Eroding Areas........................6-5
           4. Enforceable Policies and Legal Authorities...................6-6
           S. Funding.................................6-7
         C. Energy Facility Siting ............................6-8
           1. Introduction ...............................6-8
           2. Energy Facilities Likely to Locate on the Texas Coast...............6-9
           3. Procedures for Assessing the Suitability of Sites ................6-10
           4. Enforceable State Policies, Authorities, and Techniques for Managing
            Energy Facilities and their Impacts......................6-10
           5. Public and Private Party Participation in the Energy Facility Planning
            and Siting Process ............................6-12
         D. Coastal Wetlands Management ........................6-14
           1. Introduction...............................6-14
           2. Status and Trends.............................6-14
           3. Probable Causes of Loss and Degradation...................6-14
           4. State-Owned Coastal Wetlands Conservation Plan and Other Wetland
            Management Efforts ...........................6-17
              a. Inventories .............................6-17
              b. Restoration .............................6-18
              c. Relative Sea-Level Rise and the Sediment Budget .............6-19
              d. Freshwater Inflow ..........................6-20
              e. Nonpoint-Source Pollution.......................6-21
              f. Acquisition.............................6-22
              g. Education .............................6-23
              h. Local Government Participation.....................6-23
              i. Coordination of Enforceable State Policies and Authorities ..........6-24
              j. The TCMP: Improving Coordination Through Uniform
                Policies and Consistency Review ....................6-25
              k. Long-Range Navigational Dredging and Dredged Material
                Disposal Plan ............................6-26
         E. Areas for Preservation and Restoration.....................6-27
           1. Texas Parks and Wildlife Department.....................6-27
              a. State Parks .............................6-27
              b. State Recreation Areas.........................6-27
              c. State Natural Areas .........................6-27
              d. State Fishing Piers ..........................6-28
              e. State Natural Landmarks ........................6-28
              f. Wildlife Management Areas.                                                      .....................6-28

                                     Viii

    Chapter Six - Special Planniniz Elements (Cont.)

                g. Scientific Areas.                                                                 ..........................6-28
              2.Txas Historical Commission.........................6-28
                a. State Historical Areas .........................6-28
                b. State Archeological Landmarks .....................6-29
            3. General Land Office and Texas Parks and Wildlife Department .         .       .       ........6-29
                a. Coastal Preserves.                                                                .........................6-29
                b. Coastal Wetlands...........................6-30
            4.General Land Office.............................6-30
                a. Refuges and Scientific Areas ......................6-30
                b. Critical Erosion Areas .........................6-30
          F. Plan Coordination ..............................6-33
            1. Identified Plans..............................                                        6-33
            2. Other Agencies Contacted ..........................6-34

    Chapter Seven - Consideration of the National Interest and Activities of Regvional Benefit
          A. Consideration of the National Interest......................7-1
            1. Identification of Facilities of National Interest .................7-2
            2. Management of Facilities of National Interest..................7-2
            3. How the National Interest is Addressed by the TCMP...............7-3
                a. Defense and Aerospace Facilities and Activities ...............7-3
                b. Energy Exploration, Production and Transmission Facilities and Activities ....7-3
                c. Transportation Facilities and Activities...................7-4
                d. Water Resources Development Facilities and Activities............7-4
               e. Water, Air, and Land Pollution Control Facilities and Activities.........7-4
               f. Management of Natural and Technological Hazards..............7-4
               g. Recreational Facilities and Activities ...................7-5
               h. Coastal Natural Resources........................7-5
            4. Summary of National Interest Statements Received from Federal Agencies......7-6
             a. U.S. Department of Agriculture.......................7-6
             b. U.S. Department of Commerce.......................7-6
             c. U.S. Department of Defense.........................7-6
             d. U.S. Department of Energy .........................7-7
             e. U.S. Department of the Interior .......................7-7
             f. Federal Emergency Management Agency ...................7-8
             g. U.S. Geological Survey...........................7-8
             h. Federal Energy Regulatory Commission ....................7-8
             i. U.S. Nuclear Regulatory Commission .....................7-8
             k. U.S. Department of Transportation ......................7-9
             1. Department of Health and Human Services ...................7-9
             mn. U.S. Environmental Protection Agency ....................7-9
         B. Activities of Regional Benefit..........................7-10
            1. Identification of Activities of Regional Benefit.................7-10
            2. Management Authority ..........................7-11

    Chapter Eight - Public Particination and Federal A~encv Consultation
         A. Background ................................8-1
         B. Direct Public Participation During Program Development..............8-1
            1. Executive Committee of the Coastal Coordination Council ............8-1
            2. Focus Groups ..............................8-2

                                         ix

             3. Public Meetings, Workshops, and Presentations ...............................8-2
             4. Public Participation in Rulemaking .........................................8-3
           C. Public Participation During Program Implementation ............................8-5
           D. Public Information on the TCMP .............................................8-6
              1. Publications ............................................................8-6
             2. Information Packets ......................................................8-7
             3. Media .................................................................8-7
             4. Exhibits ...............................................................8-8
           E. Federal Agency Consultation ................................................8-8

    Part Ill.   ENVIRONMENTAL IMPACT STATEMENT

    A. Purpose and Need for Action ......................................................HI-I

    B. Alternatives Including the Proposed Action ..........................................111-2
           1. Alternative #1: Approve the TCMP (Preferred Alternative) ........................111-2
          2. Alternative #2 Deny Approval of the TCMP ..................................111-7
          3. Alternative #3: Delay Approval of the TCMP ..................................m11-8
          4. Programmatic Reasons for Denying or Delaying Approval ........................111-8

    C. Description of the Affected Environment ...........................................111-14
           1. Physical Environment ....................................................111-14
          2. Natural Resources .......................................................111- 15
               a. Waters of the Open Gulf of Mexico .....................................111-15
               b. Waters under Tidal Influence ...........................................H1-16
               c. Submerged Lands ....................................................HI-17
               d. Coastal Wetlands ....................................................111-18
               e. Submerged Aquatic Vegetation .........................................111-19
               f. Tidal Sand or Mud Flats ...............................................1H-19
               g. Oyster Reefs ........................................................1HI-19
               h. Hard Substrate Reefs .................................................11-19
               i. Coastal Shore Areas .................................................. 111-20
              j. Gulf Beaches ........................................................HI-20
               k. Critical Dune Areas ..................................................HI-21
               1. Coastal Hazard Areas .................................................111-21
              m. Special Hazard Areas .................................................111-22
              n. Critical Erosion Areas .................................................HI-22
               o. Coastal Barriers .....................................................HI-22
              p. Historic Coastal Areas ................................................111-23
               q. Coastal Preserves ....................................................HI-23
          3. Human Environment/Environmental Quality ...................................111-25
              a. Mineral Exploration and Related Activities ...............................111-25
              b. Federal Outer Continental Shelf Activities ................................HI-26
              c. Chemical and Petrochemical Manufacturing and Waste Management ...........111-27
              d. Municipal and Industrial Wastewater .....................................111-28
              e. Emission of Air Pollutants .............................................111-28
              f. Navigation .........................................................111-28
              g. Commercial and Recreational Fishing/Boating .............................HI-32
              h. Dredging ...........................................................HI-35
              i. Shipping and Operational Activities .....................................111-36

                                                x

                            j. Shoreline Development ................................................111-37
                            k. Industrial/Commercial Development .....................................111-37
                            1. Residential Development ..............................................111-40
                            m. Public Beach Access .................................................111-41
                            n. Erosion Response ....................................................111-42
                            o. Storms, Hurricanes, and Flooding .......................................111-43
                            p. Subsidence .........................................................111-43
                            q. Infrastructure ....................................................... 111-45
                            r. Water Development ...................................................III-45
                            s. Transportation ......................................................111-46
                            t. Public Utilities / Public Facilities ........................................111-48
                            u. Agriculture .........................................................111-48
                            v. Aquaculture .........................................................111-49
                            w. Coastal Tourism and Recreation ........................................111-49

                 D. Environmental Consequences ....................................................111-52
                           1. Introduction ..........................................................111-52
                           2. Direct Effects ........................................................111-52

                 E. Unavoidable Adverse Environmental Effects ........................................111-59

                 F. Relationship between Short-Term Uses of the Environment and the
                 Maintenance and Enhancement of Long-Term Productivity ...............................111-60

                 G. Irreversible and Irretrievable Commitments of Resources ..............................111-61

                 Part IV.    LIST OF PREPARERS

                 Part V.    LIST OF AGENCIES, ORGANIZATIONS, AND INDIVIDUALS
                               RECEIVING COPIES OF FEIS

                 Part VI.   REFERENCES-FEIS

                 Part VII.  PUBLIC COMMENTS ON DEIS AND RESPONSES TO
                               COMMENTS

                                                         APPENDICES

                        Appendix A ......................................................... Acronyms

                        Appendix B ..............................................Coastal Coordination Act

                        Appendix C ........................... Coastal Coordination Act Implementation Rules
                               Appendix Cl ............................ Rules For Program Goals and Policies
                               Appendix C2 ...................................Rules for the TCMP Boundary
                               Appendix C3 ...................... Rules for State and Local Consistency Review
    is Appendix C4 ............................ Rules for Federal Consistency Review

                                                            xi

          Appendix D ............................ List of Networked Agency Statutory Authorities

          Appendix E ..............................................Memoranda of Agreement
                 Appendix El ...................Council and U.S. Army Corps of Engineers MOA
                 Appendix E2 .........................State Agency MOAs on Rule Certification

          Appendix F ........................ Narrative Boundary Description and Boundary Maps

          Appendix G .....................Description of Texas Coastal Nonpoint-Source Program

          Appendix H ..................................Summary of National Interest Statements

                                         FIGURES

    1.  Texas Coastal Management Program Boundary ....................... Part II 2-3
    2.  Proposed Federal Consistency Time Lines ........................... Part II 5-14
    3.  Navigable Channels on the Texas Gulf Coast .......................... Part 111-30
    4. Texas Gulf Intracoastal Waterway ................................... Part 111-31
    5.  Percent Composition of Texas's Beach Debris ......................... Part 111-38
    6.    Percentage of Spills per Region, Calendar Year 1992 .................... Part 111-39
    7. Texas Gulf Coast Index Map .................................... Appendix F-5
    8.  Index Map of the Beaumont-Port Arthur Area ...................... Appendix F-6
    9.  Index Map of the Galveston-Houston Area ......................... Appendix F-7
    10. Index Map of the Bay City-Freeport Area .......................... Appendix F-8
    11. Index Map of the Port Lavaca Area ............................... Appendix F-9
    12. Index Map of the Corpus Christi Area ............................ Appendix F-1O
    13. Index Map of the Kingsville Area ............................... Appendix F-I1
    14.  Index Map of the Brownsville-Harlingen Area ..................... Appendix F-12

                                         TABLES

    1.  Excluded Federal Lands in the Texas Coastal Zone .....................Part 11 2-6
    2.  Statewide Causes of Wetland Loss and Degradation .................... Part 11 6-15
    3.    Major Causes of Wetland Loss and Degradation
                 in the Galveston Bay System ................................ Part 11 6-16
    4. Top 25 U.S. Ports - 1992 .......................................... Part 111-33
    5.  Tonnage Handled by Texas Ports, 1989-1992 .......................... Part 111-34
    6.    National Flood Insurance Program, Status
                of Communities ........................................... Part 111-44

                                             xii

      Part I

    OVERVIEW

                                       PART I OVERVIEW

    A.     Summary of the Texas Coastal Management Promram

           While significant population growth and economic development along the Texas Coast
    have brought economic opportunity to the coast, they have also resulted in the loss or
    degradation of dune complexes, coastal wetlands and other critical aquatic sites; changes to bay
    and estuarine water quality; and added demands and limitations on coastal access. Also,
    increased coastal development has meant that greater numbers of persons and structures are
    vulnerable to coastal erosion, whether natural or human induced, and subject to coastal flooding,
    storm surge, and wind damage. The success of Texas' ports has resulted in the need for
    increased dredging and attendant dredged material disposal. Set against this background, Texas'
    fragmented government structure was not addressing these priority issues in a comprehensive,
    coordinated, and efficient manner. Consequently, it was within this context that the State
    developed its Coastal Management Program.

           The Texas Coastal Management Program (TCMP) is based primarily on the Coastal
    Coordination Act of 1991 (33 TEX. NAT. RES. CODE ANN. �201 et. seq.) as amended by HB
    3226 (1995), which calls for the development of a comprehensive coastal program based on
    existing statutes and regulations. Key elements of the Coastal Coordination Act and its
    implementation regulations (31 TAC ��501, 503, 505, and 506) include:

      *   establishment of the Coastal Coordination Council (Council) to develop policy and
           oversee implementation of the TCMP;

           development of a uniform set of coastal goals and policies;

      *   establishment of the fundamental legal requirements that selected "networked" state
           agencies and local governments must comply with, and enforcement of the uniform
           policies when the networked agencies take an action or develop rules that may adversely
           affect a coastal natural resource area;

      *   establishment of the scope and organizational framework of the program; and the
           program boundaries, designation of the Areas of Particular Concern (coastal natural
           resource areas) and the activities subject to the program through designation of specific
           networked agencies and local governments and authorities that are subject to, and will
           implement, the coastal policies;

     � establishment of procedures to ensure networked state agency and local government
           implementation and adherence to the uniform policies, including rule certification and
           state consistency review (Council review);

     *    establishment of procedures to ensure that Federal activities will comply with the state's
           coastal policies;

     *    establishment of mechanisms such as the Council to ensure implementation of, and
           adherence to, the coastal policies; and

    Texas Coastal Management Program Final EIS  Part I- 1                              August 1996

      *   establishment of the procedures for enforcement of the TCMP by the networked agencies
           and the Council and Attorney General's Office.

    1. Scone of the Proaram

           The Coastal Coordination Act establishes the geographic scope of the program by
    identifying the program's inland, interstate and seaward boundaries (described in Part II Chapter
    Two and Appendix F). The program's seaward boundary is the State's territorial seaward limit
    (10.3 miles). The State's inland boundary is based on the State's Coastal Facilities Designation
    Line (CFDL). The CFDL was developed in response to the Oil Spill Act of 1990 and basically
    delineates those areas in which oil spills would affect coastal waters or resources. For the
    purposes of the TCMP, the CFDL has been modified somewhat to capture wetlands in upper
    reaches of tidal waters. The program boundaries encompass all or portions of 19 coastal counties
    including Cameron, Willacy, Kenedy, Kleberg, Nueces, San Patricio, Aransas, Refugio,
    Calhoun, Victoria, Jackson, Matagorda, Brazoria, Galveston, Harris, Chambers, Liberty,
    Jefferson, and Orange counties and overall include roughly 8.9 million acres of land and water.

           Within this coastal zone boundary, the scope of the TCMP's regulatory program is
    focused on the direct management of fourteen generic "Areas of Particular Concern," called
    coastal natural resource areas (CNRAs). These CNRAs are associated with valuable coastal
    resources or vulnerable or unique coastal areas and include: waters of the open Gulf of Mexico;
    waters under tidal influence; submerged lands; coastal wetlands; seagrasses; tidal sand and mud
    flats; oyster reefs; hard substrate reefs; coastal barriers; coastal shore areas; Gulf beaches; critical
    dune areas; special hazard areas; critical erosion areas; coastal historic areas; and coastal
    preserves. Specifically, the geographic scope of the regulatory programs is based on the direct
    regulatory jurisdiction of those "networked" state agency and local government authorities which
    are subject to the program as provided by the Coastal Coordination Act. It should be noted that
    the geographic scope extends upstream 200 miles from the mouths of rivers draining into coastal
    bays and estuaries in order to manage water appropriations on those rivers. In addition, the State
    has designated the Western Outer Continental Shelf (OCS) planning area as the geographical
    area in which Federal consistency shall apply outside of the coastal boundary. The TCMP also
    identifies those Federal lands which are excluded from the State's coastal zone.

           Land and water uses subject to the program generally include: the siting, construction,
    and maintenance of electric generating and transmission facilities; oil and gas exploration and
    production; the siting, construction, and maintenance of residential, commercial, and industrial
    development on beaches, critical dune areas, shorelines, and within or adjacent to critical areas
    and other CNRAs. In addition, associated activities such as canal dredging; filling; placement of
    structures for shoreline access and shoreline protection; on-site sewage disposal, stormwater
    control, and waste management for local governments and municipalities; the siting,
    construction, and maintenance of public buildings and public works such as dams, reservoirs,
    flood control projects and associated activities; the siting, construction, and maintenance of
    roads, highways, bridges, causeways, airports, railroads, and non-energy transmission lines and
    associated activities; certain agricultural and silvicultural activities; water impoundments and
    diversions; the siting, construction, and maintenance of marinas, state-owned fishing cabins,
    artificial reefs, public recreational facilities, structures for shoreline access and shoreline
    protection, and boat ramps.

    Texas Coastal Management Program Final EIS   Part I- 2                               August 1996

                          The uses and activities subject to the TCMP are, more specifically, those uses and
                   activities managed by "networked" state agency and local government authorities, identified in
    i s            the Council rules at 31 TAC �505.12 and listed in Part II Chapter Four. Land and water uses
                   exempted from the program include those land and water uses exempted by statute or rule in the
                   networked authorities and identified in Part II Chapter Four.

                   2. Program Goals and Policies

                          The policy framework is built around a uniform set of coastal goals and policies adopted
                   by the Council at 31 TAC �501. The goals of the TCMiP are:

                      1. to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and
                          values of CNRAs;

                     2.  to ensure sound management of all coastal resources by allowing for compatible
                          economic development and multiple human uses of the coastal zone;

                     3.  to minimize loss of human life and property due to the impairment and loss of protective
                          features of CNRAs;

                     4.  to ensure and enhance planned public access to and enjoyment of the coastal zone in a
                          manner that is compatible with private property rights and other uses of the coastal zone;

                     5.  to balance the benefits from economic development and multiple human uses of the
                          coastal zone, the benefits from protecting, preserving, restoring, and enhancing CNRAs,
                          the benefits from minimizing loss of human life and property, and the benefits from
                          public access to and enjoyment of the coastal zone;

                     6.  to coordinate agency and local government decision-making affecting CNRAs by
                          establishing clear, objective policies for the management of CNRAs;

                     7.  to make agency and local government decision-making affecting CNRAs efficient by
                          identifying and addressing duplication and conflicts among local, state, and Federal
                          regulatory and other programs for the management of CNRAs;

                     8.  to make agency and local government decision-making affecting CNRAs more effective
                          by employing the most comprehensive, accurate, and reliable information and scientific
                          data available and by developing, distributing for public comment, and maintaining a
                          coordinated, publicly accessible geographic information system of maps of the coastal
                          zone and CNRAs at the earliest possible date;

                     9.  to make coastal management processes visible, coherent, accessible, and accountable to
                          the people of Texas by providing for public participation in the ongoing development and
                          implementation of the TCMP; and

                    10.  to educate the public about the principal coastal problems of state concern and technology
                          available for the protection and improved management of CNRAs.

                  Texas Coastal Management Program Final EIS  Part I- 3                              August 1996

           The coastal policies (which are described in Part II Chapter Four, and Appendix C ) are
    primarily performance standards intended to avoid, minimize, and/or compensate for adverse
    impacts to the CNRAs. The policies address the protection of coastal resources including
    beaches and dune systems, submerged lands, wetlands, seagrass beds, tidal flats, oyster beds and
    other habitats as well as protection of coastal bays and estuaries (e.g., water quality and
    freshwater inflows). The policies also provide for maintenance and enhancement of public
    access to Gulf beaches, and the management of coastal development on beaches and in dunes and
    coastal hazard areas. The policies also provide for the management of specific land and water
    uses including electric generating facilities; oil and gas exploration and production; hazardous
    and solid waste facilities; large scale developments; construction of waterfront facilities such as
    marinas, wharves, and bulkheads; dredging and filling, and dredged material disposal;
    transportation projects; and levees and flood control projects. While the coastal policies as
    adopted by the Council reflect mostly existing policies, they also include enhancements to core
    policies related to managing "critical areas" (e.g., coastal wetlands, seagrasses and tidal sand and
    mud flats), dredging and dredged material disposal, submerged lands, beaches and dunes, and
    erosion areas.

    3. Program Organization and Implementation

           The TCMP is a networked program that will be implemented primarily through eight
    state agencies, 18 local governments, and the Council. The program will rely primarily on direct
    state control of land and water uses, although local governments will implement state guidelines
    related to beach and dune management. Implementation and enforcement of the coastal policies
    is primarily the responsibility of the networked agencies and local governments through their
    existing statutes, regulatory programs or other authorizations. Networked agencies include: the
    General Land Office/School Land Board, Texas Natural Resource Conservation Commission,
    Railroad Commission, Texas Parks and Wildlife Department, Texas Transportation Commission,
    Texas Historical Commission, the Public Utility Commission, the Texas State Soil and Water
    Conservation Board, and the Texas Water Development Board. Similarly, 18 county and
    municipal governments, in those counties with barrier islands, are also networked entities with
    responsibilities for program implementation vis-a-vis beaches and dunes.

           The Coastal Coordination Act mandates that these networked agencies and local
    governments undertake specified actions, authorizations, and rulemaking in compliance with the
    TCMP policies as well as enforce relevant provisions of the TCMP through their regulatory
    processes. The Coastal Coordination Act also requires each networked agency or local
    government to issue a formal consistency determination that the project or authorization is
    consistent with the State's coastal policies when proposing an action subject to the TCMP. This
    decision can be contested by third parties, state agencies, or Council member agencies either
    administratively or judicially and, if necessary, forms the basis for Council reviews of these
    actions for consistency. A brief summary of the networked agencies and authorities is provided
    below.

    Protection of Critical Areas

           The School Land Board/General Land Office (SLB/GLO), Texas Natural Resource
    Conservation Commission (TNRCC), Railroad Commission (RRC), and Texas Parks and

    Texas Coastal Management Program Final EIS  Part I- 4                             August 1996

    Wildlife Department (TPWD) will all implement various coastal policies to manage development
    in and to protect critical wetlands and other aquatic habitats pursuant to their authorities related
    to water quality standards and Section 401 certifications, submerged lands approvals, and permits
    for dredging and mining.

    Barrier Islands: Shoreline Access. Dune Protection. and Hazard Mitigation

           City and county governments in those counties with barrier islands will implement the
    TCMP policies related to preservation of beach access and dune protection through development
    of Beach Access and Dune Protection Plans consistent with the TCMP policies per the Open
    Beaches Act and Dune Protection Act (TEX. NAT. RES. CODE ANN. Chapters 61 and 63), as
    amended by SB 1053 (1991) and floodplain requirements (TEX. NAT. RES. CODE ANN.
    Chapter 33). These plans must address development adjacent to public beaches and within
    critical dune areas and must address maintenance or enhancement of public access to beaches,
    impacts to dunes, construction practices to minimize damage from flooding and storm surge, and
    use and placement of erosion control structures. Once the plans are certified by the SLB/GLO
    and the Office of the Attorney General (OAG) to be consistent with these requirements, local
    governments may issue beachfront construction certificates and dune protection permits to
    implement the policy. The SLB/GLO and OAG review and comment on these certificates and
    permits and the OAG, GLO or local district attorney may initiate legal action if local permits are
    inconsistent with TCMP policy. In addition, the TNRCC and Texas Department of
    Transportation (TxDOT) will implement policies related to managing undeveloped areas of
    barrier islands through approval of special districts and transportation projects on barrier islands
    (TEX. WATER CODE ANN. Chapter 50 and TEX. REV. CIV. STAT. ANN. art. 6663).

    Protection of Estuaries and Coastal Water Oualitv

           The SLB/GLO, TNRCC, RRC, and TPWD will implement the TCMP policies related to
    dredging, dredged material disposal and beneficial uses of dredged material through submerged
    lands authorities (TEX. NAT. RES. CODE ANN. Chapter 33); water quality standards and
    Section 401 certification authority (TEX. WATER CODE ANN. Chapter 26); and TPWD
    dredging and mining permits (PARKS & WILDLIFE CODE ANN. Chapter 86). The SLB/GLO
    will implement policies related to construction of structures and marinas on state-owned
    submerged lands through submerged lands authorities. The TNRCC and RRC will implement
    policies to manage wastewater discharges through State Water Pollution Control authority (TEX.
    WATER CODE ANN. Chapter 26 and TEX. NAT. RES. CODE ANN. Chapter 91). The
    TNRCC will implement policies to manage the impacts of water appropriations through permits
    for water diversions (TEX. WATER CODE ANN. Chapter 11). The TNRCC will manage
    impacts from on-site sewage systems and underground storage tanks though on-site disposal
    system authorities (TEX. WATER CODE ANN. Chapter 26 and TEX. HEALTH & SAFETY
    CODE Chapter 166). The Texas State Soil and Water Conservation Board (TSSWCB) will
    implement policies to mange nonpoint-source impacts from agricultural and silvicultural
    activities (TAC Chapter 201 and TEX. WATER CODE ANN. Chapter 26)

    Texas Coastal Management Program Final EIS   Part I-5                                August 1996

    Coastal Erosion

           The local governments in concert with the GLO will implement the TCMP policies to
    manage impacts of erosion on Gulf beaches and coastal development, as well as impacts of
    coastal development which can cause coastal erosion, through the beach access and dune
    protection authorities (TEX. NAT. RES. CODE ANN. Chapters 61 and 63) and submerged lands
    authorities. Regarding bay shores, the SLB/GLO will implement coastal policies through the
    issuance of leases and easements for erosion control structures on state-owned submerged lands.
    Anticipated management activities include the development of a coastwide policy for managing
    coastal erosion that will identify Texas Gulf beaches that are eroding and rank them from most to
    least critical, and the implementation of a comprehensive long-term management plan for the
    restoration of Texas' critically eroding beaches pursuant to Senate Bill 1053. This coastwide
    erosion response plan will be submitted to the legislature with recommended actions. The
    coastwide erosion response plan will be the basis for prioritization of shore protection and
    restoration projects.

    Historic/Cultural Resources

           The Texas Historical Commission will implement the TCMP policies related to
    conserving coastal historic resources through permits and other management activities pursuant
    to the Antiquities Act (TEX. NAT. RES. CODE ANN. Chapter 91)

    Major Develorpment

           The Public Utility Commission will implement the TCMIP policies to manage
    development of power plants and transmission lines through certificates of convenience and
    necessity (TEX. REV. CIV. STAT. ANN. art. 1446c). TxDOT will implement policies to
    manage the impacts of transportation projects through its approvals of these projects (TEX. REV.
    CIV. STAT. ANN. art. 6663, and art. 6674). TNRCC will implement policies related to
    managing impacts from levees and flood control projects through its approvals of these projects
    (TEX. WATER CODE ANN. Chapter 16).

    Coastal Coordination Council

           The Coastal Coordination Act established the Coastal Coordination Council, which
    consists of the heads of the State's resource agencies and four gubernatorial appointees
    representing local governments, agriculture, coastal business, and coastal citizens. The Council
    is responsible for: (1) policy development and policy coordination through promulgation of the
    uniform coastal policies; (2) program oversight and dispute resolution through the state
    consistency review procedures and agency rule certification and decertification; and (3)
    implementation of Federal consistency authority through reviews of Federal activities. While the
    networked state agencies and local governments are required by the Coastal Coordination Act to
    undertake actions in compliance with the coastal policies, the Coastal Coordination Act provides
    for oversight by the Council and a number of mechanisms to ensure that networked agencies and
    local governments comply with the coastal policies. I

    Texas Coastal Management Program Final EIS  Part I- 6                              August 1996

                          The Coastal Coordination Act and Council rules at 31 TAC �505 authorize and establish
                   a process for the Council, in conjunction with the OAG, to review networked state agency and
    is local government proposed actions and, if necessary, take legal action to ensure compliance with
                   TCMP policy (see discussion in Part II Chapter Five). In order for an agency or local
                   government action to be reviewed, the proposed action must be referred to the Council by a
                   person, state agency or Council member and accepted for review by three or more Council
                   members. If the Council accepts referral of an agency or local government action, and two-thirds
                   of the Council members find the action to be inconsistent, the Council will issue findings and
                   recommendations to the agency or local government proposing the action. If the agency does not
                   comply with those recommendations the Council can request an OAG opinion and if the OAG
                   concurs, a suit can be filed in court to ensure that the agency's action is consistent.

                          In practice, it is anticipated that the Council's oversight role will be limited to the review
                   of major actions and cases requiring dispute resolution. The TCMP includes incentives (rule
                   certification and thresholds for referral) for agencies to ensure that their operating rules are
                   consistent with the coastal policies. While not mandated by the Coastal Coordination Act, nor
                   required in order to implement the coastal policies, the rule certification procedures provide for a
                   voluntary process whereby agencies can submit their existing rules, new rules, or rule
                   amendments to the Council for review. If an agency's rules are found to "incorporate or
                   otherwise require compliance with the coastal policies" then the Council will certify those
                   agency rules as consistent. Upon a determination that the agency's rules are consistent--which
                   may require rulemaking on the part of the networked agencies and local governments--the
                   agency's rules would be incorporated as part of the TCMP's coastal policies and the agency can
                   establish thresholds for referral to limit Council review of its proposed actions. The ability to
                   limit the Council's review to major actions, therefore, should provide the incentive for an agency
                   to submit its rules for certification. The networked agencies and local governments have
                   developed agreements with the Council committing them to submit their existing and future rules
                   to the Council for certification.

                          In addition, the Council has other means to ensure that agency actions are in compliance
                   with the TCMP. The TCMP includes provisions and mechanisms for the Council to monitor
                   state agency and local government implementation and enforcement of the program. The
                   Council will review quarterly and annual reports developed by the networked agencies that detail
                   the implementation of the coastal program and future agency rulemaking. If the Council finds
                   that an agency has not complied with the coastal policies in implementing its authorities or has
                   amended or developed new rules that are not consistent with the coastal policies, then the
                   Council can issue a "Notice of Program Deficiency" with recommendations for remedying those
                   deficiencies. If the networked agency fails to remedy the problems in a reasonable time the
                   Council can revoke the agency's rule certification, which would void any thresholds for referral
                   limiting the Council's ability to review that agency's proposed actions.

                          The Coastal Coordination Act also provides for a voluntary provision to allow agencies
                   to ensure that agency or local government plans which will guide agency decision-making, are
                   consistent with the coastal policies. The Council may provide, if requested by a state agency or
                   local government, a non-binding advisory opinion on the proposed plans. Council participation
                   in the planning process should help identify consistency issues well before actions are proposed
                   and thereby could improve compliance with coastal policies.

                   Texas Coastal Management Program Final EIS  Part I- 7                            August 1996

           Also, the Council will be the State entity responsible for Federal consistency reviews
    pursuant to Section 307 of the Coastal Zone Management Act (CZMA). The Council has
    developed Federal consistency procedures (31 TAC �506) and will conduct reviews of Federal i
    agency activities to ensure that they are consistent with the Federally approved enforceable
    policies of the TCMP. The GLO and the Executive Committee of the Council will assist the
    Council with reviews by preparing initial staff recommendations to Council members. The
    TCMiP also provides for the use of "Interagency Coordination Groups" (see below) to assist the
    Council in its reviews of Federal development projects.

    Permnitting Assistance GrouD/Preliminarv Reviews

           The Coastal Coordination Act provides new mechanisms to improve compliance with
    policies as well as streamline the pernitting process--the preliminary consistency review process
    and the Permitting Assistance Group (PAG). Preliminary reviews will be used to identify
    potential consistency issues early on, and indicate what changes are necessary for the applicant to
    make to comply with the coastal policies before the applicant is too invested in a particular
    course of action. The PAG, which consists of staff level members from the principal networked
    agencies, will conduct the preliminary reviews. The PAG will also provide technical assistance
    to the applicant not only to improve compliance with the coastal policies, but to assist applicants
    move through the permitting/approval process as quickly as possible. Where there is adequate
    information and public comment, the Executive Committee (see below) with assistance from the
    PAG, can make preliminary consistency findings, which will preclude the need for the full
    Council to review that action unless there are significant changes to the action.

    Advisory Committee

           Texas will use an additional mechanism to ensure continued public and governmental
    participation in the TCMP and to assist with public outreach and education. The Council will
    establish a citizens advisory committee to provide enhanced opportunities for public input into
    program implementation. The Advisory Committee, expected to be established in October 1996,
    will be responsible for identifying significant or emerging issues; hosting local meetings or
    workshops, and disseminating information on the program to the general public. The Council is
    considering establishing regional subcommittees as part of the Advisory Committee structure,
    but no decision has been made as of this date.

    Executive Committee of the Council

           The Executive Committee, which consists of senior management level representatives of
    the Council members, will be responsible for implementing Council directives, providing
    recommendations for most issues addressed by the Council, issuing preliminary consistency
    findings; and assisting in policy development.

    Interaeencv Coordination GrounDs

           The Coastal Coordination Act also provides for the establishment of Interagency
    Coordination Groups (IC Gs) to assist Federal agencies in developing projects that are consistentS
    with the Federally approved TCMP policies and assist the Council in carrying out Federal

    Texas Coastal Management Program Final Els  part 1- 8                             August 1996

    consistency reviews for those activities. ICGs are composed of representatives of Federal and
    state resource agencies (at least three Council member agency representatives), and local
    sponsors of the particular project. The ICGs will work with the Federal agency to develop a
    project that will be consistent with the coastal policies. If the Federal agency then submits a
    consistency determination that follows the ICG's recommendations (and which a majority of the
    Council member representatives on the ICG have determined to be consistent) then the Council
    will automatically concur with the Federal agency's consistency determination.

    Lead Coastal Agencv: Texas General Land Office

           The Governor designated the GLO to be the lead coastal agency for the purposes of
    receiving and administering Federal CZMA funds. The GLO will also be responsible for
    monitoring the implementation of the coastal policies by the agencies and local governments.
    The GLO also serves as staff for the Council, implements the state lands authorities, co-
    administers the beach dune regulations with the OAG, and will play an important role in public
    education and outreach.

    4. Other Special Planning Reauirements of the CZMA

           The CZMA requires that states specifically address the issue of shoreline erosion,
    shorefront access, and consideration of the national interest in facility siting, designating special
    management areas for preservation and restoration, public participation, and plan coordination as
    part of program development. The TCMP responses to these requirements are found in Part II
    Chapters Six, Seven, and Eight.

    Texas Coastal Management Program Final EIS    Part I- 9                               August 1996

    B.     Changes The Promram Will Make

           The TCMP will better manage coastal development to enhance and protect natural
    resources. There are four principal areas in which the TCMP enhances Texas' management of its
    natural resources and improves government processes: (1) government accountability,
    responsiveness, and coordination; (2) dredging in bays and estuaries; (3) development on beach
    and dune systems and coastal hazard areas along Gulf shorelines; and (4) development in coastal
    wetlands and other aquatic sites.

    1. Government Accountability. Restnonsiveness. and Coordination

           Texas' fragmented government structure frustrates the development of comprehensive
    coastal policy and management mechanisms. For example, response to shoreline erosion has
    been hampered by the lack of a clear state policy and confusion over state, Federal, and local
    roles and responsibilities. The lack of a meaningful coordination mechanism to move agencies
    to address this critical coastal issue sparked public support for a coastal management program
    and resulted in the Texas Legislature creating the Council.

           For the first time, the Council provides a single public forum in which the public and
    permit applicants can address all the policy makers at one time and the agency heads can
    communicate and work together on policy issues. This increased accountability will increase
    both the efficiency and effectiveness of Texas' response to priority coastal issues such as
    shoreline erosion and loss of coastal wetlands and other critical areas.

           The TCMP will foster improved accountability, responsiveness, and coordination among
    numerous Federal, state, and local governmental agencies with jurisdiction in the coastal area
    though the Council's promulgation of uniform coastal policies. The establishment of the Council
    and the state consistency review procedures for both issuance of permits and rulemaking actions
    provide a forum for effective resolution of disputes over the interpretation of coastal policy.
    Compliance with coastal policy will be enhanced as a result of the requirement of the GLO and
    Council to monitor all state agency and local government implementation with annual reports to
    the Council and legislature.

           In addition, the TCMP will simultaneously foster permit simplification and improved
    compliance with the State's coastal policies. Permit applicants will receive technical assistance
    from the PAG and preliminary consistency findings issued by the Executive Committee of the
    Council. These and other provisions-- such as coordinated review of multi-permit projects and
    joint consideration of cumulative and secondary impacts from major actions-will facilitate
    identification of problems with proposed coastal projects. The TCMP will help ensure projects
    are designed to meet all applicable requirements and that potentially costly and time-consuming
    interagency disputes are resolved quickly. The TCMP will also provide for joint public notice
    for state and Federal wetlands permitting requirements.

    2. Dredcing in Coastal Waters

           The TCMP includes a process for creating a long-term plan for dredging and the disposal
    or placement of dredged material. More than 770 miles of commercially navigable waterways

    Texas Coastal Management Program Final EIS  Part I- 10                             August 1996

               have been dredged through Texas' coastal waters. Ongoing maintenance of these waterways
               results in approximately 30 to 40 million cubic yards of material being dredged annually.
    0       ~     ~~Extensive dredging is also conducted by state, local, and private concerns done within the coastal
               zone. Records from the Corps' Galveston District regulatory program indicate that 90 navigation
               related permits were issued in 1995.

                       The TCMP policy recognizes the importance of dredging to ports and commerce and
               reflects the State's conclusion that dredged material is a resource that can be used beneficially to
               slow shoreline erosion, create coastal wetlands, and serve other beneficial purposes. The TCMP
               requires beneficial use of dredged material under circumstances outlined in the dredge policy,
               and discussed in Chapter Four. This policy provides a balance between the competing national
               and state interests in ports and navigation and protection and restoration of important coastal
               resources. The TCMIP will also require mitigation of the impacts from dredging and dredged
               material disposal practices. In particular, the TCMP establishes a preferred sequence of dredged
               material disposal, maximizing beneficial use, upland and contained disposal, while minim'izn
               open bay disposal, thus ensuring that navigation concerns are satisfied in a manner sensitive to
               the coast and other coastal resource users.

                       The TCMP incorporates an innovative technique that uses the State's Federal consistency
               review authority as a long range planning tool. Over the first three to five years of Federal
               approval of the TCMP, the Council and the Corps of Engineers will review all coastal waterways
               to determine whether current commnercial dredging and dredged material disposal and placement
               practices can be improved. Where changes to current practices would incur additional costs,
               time is allowed to obtain the necessary funds before the changes are implemented. This will
               result in greater beneficial use of the dredged material and improved disposal and placement
               practices.

               3. Development on the Gulf of Mexico Shoreline

                       Public support for a coastal management program resulted in the Texas Legislature
               enacting amendments to the Open Beaches Act, Dune Protection Act, and statutes authorizing
               coastal cities and counties to adopt floodplain development ordinances. These amendments gave
               the GLO and local governments the authority to manage development in the beach/dune system
               and coastal hazard areas along the Gulf shoreline. In 1993, the GLO adopted rules under which
               local governments developed local plans for permitting development in these areas. The rules
               require that development be planned so that public access to beaches is preserved and improved,
               destruction of dunes is avoided, and erosion, storm, and flood hazards are minimized. All 18
               local governments have received GLO approval for their plans and are actively managing that
               development. This program will improve local government capacity to manage coastal
               development to better protect dunes and public beaches.

                      While direct permitting authority resides at the local level, the State maintains active
               policy authority and oversight over the beach and dune program. The GLO retains authority to
               establish minimum dune protection and beach access standards. The OAG and GLO receive and
               review all local permits. Finally, the GLO and OAG may take direct enforcement action for

               violations of the beach/dune rules.

               Texas Coastal Management Program Final EIS  Part I- I1I                            August 1996

    4. Development of Coastal Wetlands and Other Critical Areas

           Development of the TCMP resulted in three state agencies adopting new rules for                 O
    management of coastal wetlands, seagrasses, tidal sand and mud flats, oyster reefs, and hard
    substrate reefs. Collectively, these are known as "critical areas." The TNRCC, RRC, and SLB
    adopted rules governing their respective authorities over development in critical areas. Before
    the TCMP, these agencies issued authorizations using a variety of different written and unwritten
    policies. Each agency's rules now require application of a mitigation sequence (avoid, minimize,
    and mitigate) currently used by the U.S. Environmental Protection Agency and the Corps of
    Engineers (Corps). The policy also establishes a uniform state compensatory mitigation policy
    for unavoidable impacts. Finally, the policy prohibits activities if they would result in significant
    degradation to critical areas.

           As a result, the five agencies responsible for managing coastal wetlands in Texas' coastal
    zone will now operate under clearer, more comprehensive, and uniform standards. This will
    make critical area management in the coastal zone both more effective in terms of critical areas
    protection and more efficient in terms of intergovernmental coordination, predictability, and
    responsiveness.

    5. Program Obiectives and Action Items

           Texas intends to use Section 306, 306A and other Federal CZMA funds to further
    advance the program goals and address the priority issues identified above. The Council has
    established seven broad priorities that will be used to allocate CZMA funding. These priority
    areas include:

      1.  Coastal Natural Hazards Response - TCMP monies can help enhance local government
           capacity to respond to coastal natural hazards such as erosion and flooding by funding
           local planning and management efforts.

      2.  CriticalAreas Enhancement - Wetlands, seagrasses, oyster reefs, and tidal sand and mud
           flats are widely recognized as being of great value. Unfortunately, because these coastal
           natural resources are susceptible to many threats, they are still being lost and degraded.
           TCMP funds can be used to help state and local governments manage critical areas within
           their jurisdictions.

      3.  Shoreline Access - Texas has one of the strongest sets of laws in the Nation protecting
           public access to the beach. However, increased shoreline development makes meeting
           the shoreline access needs of the public a challenge. TCMP funds can be used to plan for
           and acquire access corridors and enhance existing access sites (e.g., off-beach parking,
           public bathrooms).

      4.   Waterfront Revitalization and Ecotourism Development - CZMA funds can be used to
           revitalize urban waterfronts to provide enhanced recreational opportunities and boost
           local economies and to develop local plans for ecotourism.

    Texas Coastal Management Program Final EIS  Part I- 12                             August 1996

                     5.  Permit Streamlining/Assistance and Governmental Coordination -A common complaint
                          of coastal citizens and business persons is that the various levels of government do not act
                          in concert. Such fragmentation and incoordination result in time delays and last-minute
                          changes in projects that cost businesses and individuals money. TCMP funds can be used
                          to streamline permitting processes and to provide technological and technical assistance.

                     6.  Information and Data Availability - Government efforts at improving resource
                         management are often hampered by lack of basic information. TCMP funds can be used
                         to develop the baseline data and maps necessary for sound implementation of the TCMP
                         goals and policies.

                     7.  Public Education and Outreach - Conveying the meaning of laws and regulations to the
                         regulated public in an appropriate format rarely receives high priority. TCMP funds can
                         be used to develop and distribute public education materials such as user's manuals and to
                         host public meetings, workshops, and conferences where technical information can be
                         exchanged and training can be obtained.

                  6. Effects of Federal Approval

                         The principal anticipated effects of Federal program approval are fourfold. First, Federal
                  CZMA funds (anticipated to be roughly 2.2 million dollars annually) will be available to Texas
                  to assist in program implementation activities by the state and local entities. The funds will be
                  used to address the seven broad priorities established by the Council identified above.

    0                    Second, program approval will also activate the Federal consistency provisions of the
                  CZMA, which require that Federal activities, Federally licensed and permitted activities, and
                  Federal assistance to state and local governments be consistent with the Federally approved
                  enforceable policies of the TCMP.

                         Third, Federal approval will ensure that varied national interests will be considered and
                  weighed when the State is making decisions with regard to the coast.

                         Finally, Federal approval of the TCMP will ensure that interested parties in the State are
                  eligible to apply for a deepwater port license from the U.S. Coast Guard, pursuant to the
                  Deepwater Port Act of 1974, by meeting one of the critical eligibility requirements of the
                  Deepwater Port Act. A more detailed description of the effects of Federal approval of the TCMP
                  is provided in Part III (B), Alternatives to the Proposed Action, and Part Ill (D), Environmental
                  Consequences.

    e

                  Texas Coastal Management Program Final EIS  Part I- 13                             August 1996

    C. The Federal Coastal Zone Management Act

           In response to intense pressure on coastal resources, and because of the importance of
    coastal areas of the United States, Congress passed the Coastal Zone Management Act of 1972,
    as amended [CZMA] (16 U.S.C. 1451 et. seq.). The Act authorizes a Federal program to
    encourage coastal states and territories to develop comprehensive coastal management programs.
    The program is administered by the Secretary of Commerce, who in turn has delegated this
    responsibility to the National Oceanic and Atmospheric Administration's Office of Ocean and
    Coastal Resource Management (NOAA). Currently, 29 states have coastal programs approved
    by NOAA.

           The CZMA affirms the national interest in the effective protection and careful
    development of the coastal zone by providing assistance and encouragement to coastal states to
    voluntarily develop and implement management programs for their coastal areas. The CZMA
    authorizes financial assistance grants under Section 305 for program development and Section
    306 for program implementation to provide coastal states and territories with the means for
    achieving these objectives. Section 305 of the CZMA, allowing for Federal financial assistance
    to states to develop state coastal management programs, was re-authorized by Congress in the
    1990 amendments to the CZMA (PL 10 1-508, November 5, 1990). NOAA awarded Texas a
    CZMA Section 305 grant of $200,000 on July 1, 1992, to complete development of the TCMP,
    with subsequent grants of $200,000 in 1993 and $1 10,000 in 1995.

           Sections 305, 306, and 307 of the CZMA and implementing regulations published on
    March 28, 1979 (44 CFR Part 18595) as codified at 15 CFR Part 923, provide the requirements
    and procedures for state program development and Federal approval. In summary, the
    requirements for program approval are that a state develop a management program that among
    other things:

      I1. Identifies and evaluates those coastal resources recognized in the CZMA that require
           management or protection by the state or territorial government;

      2.  Re-examines existing policies or develops new policies to manage these resources. These
           policies must be specific, comprehensive, and enforceable, and must provide an adequate
           degree of predictability as to how coastal resources will be managed;

      3.  Determines specific uses and special geographic areas that are to be subject to the
           management program, based on the nature of identified coastal concerns. Uses and areas
           subject to management should be based on resource capability and suitability analyses
           and socio-economic considerations;

      4.  Identifies the inland and seaward areas subject to the management program;

      S.  Provides for consideration of the national interest in planning for and siting of facilities;
           and

      6.  Includes sufficient legal authorities and organizational structure to implement the
           program and to ensure conformance to it.

    Texas Coastal Management Program Final EIS  Part I- 14                            August 1996

           In arriving at these substantive aspects of the program, states are obligated to follow an
    open process which involves providing information to and considering the interests of the
    general public, interest groups, local governments, and regional, state, interstate, and Federal
    agencies.

           Section 303 of the CZMA provides guidance on specific national objectives that warrant
    full consideration during the implementation of approved state coastal management programs.

           Section 305 of the CZMA as amended by PL 101-508 in 1990 and subsequent
    appropriations language authorizes annual grants to states desiring to develop a coastal
    management program.

           After its management program receives Federal approval, a state is then eligible for
    annual grants under Section 306 to implement its program. Section 306A of the CZMA also
    provides that states may use a portion of their Section 306 awards for low cost construction
    projects that result in the preservation of important natural areas, improved public access, or
    renewal of urban waterfronts.

           Section 307 contains the Federal consistency provisions of the CZMA to ensure that
    Federal actions are consistent with the state's Federally approved program. Paragraphs (1) and
    (2) of Section 307(c) require that Federal activities and development projects in or directly
    affecting the coastal zone be consistent to the maximum extent practicable with a Federally
    approved state program. Subparagraphs (A) and (B) of Section 3 07(c) require that Federally
    licensed and permitted activities affecting the coastal zone also are consistent with a Federally
    approved state programs. Section 3 07(d) requires Federal assistance to state and local
    governments for projects affecting the coastal zone to be consistent with a Federally approved
    state management program. Federal consistency implementing regulations are found at 15 CFR
    Part 930.

           Section 3 09, as amended by PL 10 1-508 in 1990, establishes a coastal enhancement grant
    program. This section provides that a portion of Section 306 funds is available to states to
    develop program changes which strengthen their programs' ability to address particular coastal
    issues. State efforts to seek such improvements are meant to focus on priorities based on a self-
    assessment of the nine objectives listed in Section 309. These objectives include stronger
    wetland protection, improved management of coastal hazards. and additional public access.

           Section 312 directs the Secretary to evaluate the performance of state coastal
    management programs on a continuing basis. NOAA formally reviews the implementation of
    each state on a three year cycle.

           Section 3 15 establishes a National Estuarine Research Reserve Program to preserve a
    representative series of undisturbed estuarine areas for long-term scientific and educational
    purposes. There are currently no estuarine research reserve sites designated in Texas.

           The Coastal Zone Reauthorization Amendments of 1990 (CZARA) established a new
    Coastal Nonpoint Pollution Control Program (CNPC), in addition to updating the CZMA. The
    State of Texas has agreed to submit a complete Section 6217 program within 30 months of

    Texas Coastal Management Program Final EIS  Part I- 15                              August 1996

    program approval (See Appendix G). After Texas submits its coastal nonpoint program, NOAA
    and EPA will make a final determination regarding its compliance with Section 6217.

    Texas Coastal Management Program Final EIS  Part I- 16                            August 1996

    D.    Cross Reference to Program Reauirements

      CZMA                                                                  CZMA Approval
      Section          Requirement                                          Regulations                FEIS Section

     306(d)(1)        The TCMP contains policies to adequately             15 CFR �923.3              Part II Chapter
                       manage all uses with direct and significant                                    Four
                       impacts on coastal waters and ensure protection
                       of those resources and areas that make the Texas
                       coast a unique, vulnerable or valuable area.

     306(d)(1)        The TCMP was developed after notice and with         15 CFR 923.3               Part II Chapter
                       the opportunity for full participation by Federal                              Eight
                       agencies, state agencies, local governments,
                       regional organizations, port authorities, and other
                       interested parties and individuals, public and
                       private.

     306(d)(2)(A)      The TCMP includes sufficient inland, seaward,       15 CFR �923.31- 34         Part II Chapter
                       and interstate boundaries.                                                     Two

     306(d)(2)(B)     The TCMP identifies the land and water uses          15 CFR �923.11             Part II Chapter
                       subject to the management program.                                             Four

     306(d)(2)(C)     The TCMP designates Areas of Particular              15 CFR �923.21-23          Part II Chapters
                       Concern.                                                                       Four and Six

     306(d)(2)(D)     The TCMP identifies the means by which the           15 CFR �923.40-43          Part II Chapters
                       state will exert control over the defined land and                             Four and Five
                       water uses.                                                                    and Appendices
                                                                                                     B, C, D, and E

     306(d)(2)(E)     The TCMP contains broad guidelines on                15 CFR �923.3              Part II Chapter
                       priorities of uses in particular areas, including   (923.21)                   Four and
                       those uses of lowest priority.                                                 Appendix C

     306(d)(2)(F)      The TCMP includes a description of the              15 CFR �923.46             Part II Chapter
                       organizational structure proposed to implement                                 Three and
                       the TCMP, including the responsibilities and                                   Appendix C
                       interrelationships of local, area wide, state,
                       regional, and interstate agencies in the
                       management process.

     306(d)(2)(G)     The TCMP includes a definition of the term           15 CFR �923.24             Part II Chapter
                       beach, and a planning process for the protection                               Six
                       of, and provision of access to, public beaches and
                       other public coastal areas.

     306(d)(2)(H)      The TCMP includes a planning process for            15 CFR �923.13             Part II Chapters
                       energy facilities likely to be located in, or which                            Six and Seven
                       may significantly affect, the coastal zone,
                       including a process for anticipating the
                       management of the impacts from such facilities.

    Texas Coastal Management Program Final EIS           Part I- 17                                       August 1996

                                                                          CZMA Approval
      CZMA             Requirement                                        Regulations               FEIS Section
     Section

     306(d)(2)(I)     The TCMP includes a planning process for           15 CFR �923.25            Part II Chapter
                       assessing the effects of, and studying and                                   Six
                       evaluating ways to manage the impact of,
                       shoreline erosion and for restoring areas
                       adversely affected by such erosion.

     306(d)(3)(A)    The state has coordinated the TCMP with local,      15 CFR �923.56            Part II Chapter
                       area wide, and interstate plans applicable to areas                          Six
                       within the coastal zone existing before 1/1/95.

     306(d)(3)(B)    The state has established an effective mechanism    15 CFR �923.57            Part II Chapters
                       for continuing consultation and coordination                                 Three, Six, and
                       between the Council and local governments,                                   Eight
                       interstate agencies, regional agencies, and area
                       wide agencies within the coastal boundary.

     307              The TCMP contains adequate Federal                 15 CFR �923.53 and        Part II Chapter
                       consistency procedures.                            �930 Subparts C-F         Five and
                                                                                                    Appendix C

     306(d)(4)        The State has held adequate public hearings         15 CFR �923.58           Part II Chapter
                       during the development of the TCMP.                                          Eight

     306(d)(5)        The Governor has reviewed and approved the         15 CFR �923.48            Part II Chapter
                       management program and certifies that it                                     One
                       contains adequate authorities.

     306(d)(6)        The Governor has designated a lead coastal         15 CFR �923.47            Part 11 Chapters
                       agency.                                                                      One and Three

     306(d)(7)        The state is organized to implement the TCMP.      15 CFR �923.46            Part II Chapter
                                                                                                    Three

     306(d)(8)        The TCMP provides for adequate consideration       15 CFR �923.52            Part II Chapter
                       of the national interest.                                                    Seven and
                                                                                                    Appendix H

     306(d)(9)        The TCMP includes a program by which specific   15 CFR �923.22               Part II Chapter
                       areas may be designated for the purpose of                                   Six
                      preserving or restoring them for their
                       conservation, recreational, ecological, historical,
                       or esthetic values.

    Texas Coastal Management Program Final EIS          Part I- 18                                     August 1996

      CZMA                                                                CZMA Approval
      Section          Requirement                                        Regulations               FEIS Section

      306(d)(10)(A)   The state has authority for the management of the   15 CFR �923.41            Part II Chapters
      and (B)          coastal zone in accordance with the TCMP,                                    Four, Five, and
                       including the power to: a) administer land use                               Six and
                       and water use regulations to control development                             Appendices B,
                       to ensure compliance with the TCMP; b) resolve                               C, D, and E
                       conflicts among competing uses; and c) acquire
                       fee simple and less than fee simple interests in
                       land, waters, and other property through
                       condemnation or other means, where necessary.

     306(d)(10)(B)   The State has the authority to acquire interests in   15 CFR � 923.41         Part H Chapters
                       real property when necessary to achieve                                      Four and Six
                       conformance with the management program.                                     and Appendix D

     306(d)(I 1)      The TCMP uses any one or a combination of the    15 CFR �923.41 - 44         Part II Chapters
                       following techniques for control of land uses and                            Three, Four, and
                       water uses within the coastal zone: a) state                                 Five and
                       establishment of criteria and standards for local                            Appendices B,
                       implementation; b) direct state land and water                               C, and D
                       use planning and regulation; and/or c) state
                       administrative review of development plans,
                       projects, or land and water use regulations.

     306(dX12)        The TCMP ensures that local land use and water    15 CFR �923.12             Part II Chapter
                       use regulations within the coastal boundary do                               Seven
                       not unreasonably restrict or exclude land uses
                       and water uses of regional benefit.

     306(d)(13)       The TCMP provides for an inventory and             No Regulations            Part II Chapters
                       designation of areas that contain one or more                                One, Four, and
                       coastal resources of national significance and                               Seven
                      specific and enforceable standards to protect such
                      resources.

     306(d)(14)       The TCMP provides for public participation in      No Regulations            Part II Chapters
                      permitting processes, consistency determinations,                            Three, Five, and
                       and other similar decisions.                                                 Eight and
                                                                                                   Appendices C
                                                                                                   and D

     306(d)(15)       The TCMP ensures that all state agencies will      No Regulations            Part II Chapters
                       adhere to the program.                                                       Three, Four, and
                                                                                                   Five and
                                                                                                   Appendices B
                                                                                                   and C

     306(d)(16)       The TCMP contains enforceable policies and         Guidance on Coastal       Part II Chapter
                      mechanisms to implement applicable                 Nonpoint Source           Four and
                      requirements of the �6217 (g).                     Program issued            Appendix G
                                                                         January 1993.

    Texas Coastal Management Program Final EIS          Part I- 19                                     August 1996

                              Part II

                DESCRIPTION OF THE PROPOSED ACTION
             THE TEXAS COASTAL MANAGEMENT PROGRAM

    0

                                              STATE OF TEXAS
                                        OFFICE OF THE GOVERNOR
    GEORGE W. BUSH
      GOVERNOR                                    October 19, 1995

              Dr. D. James Baker
              Under Secretary and Administrator
              National Oceanic and Atmospheric Administration
              HCHB Room 5128
              14th and Constitution Avenue N.W.
              Washington, D.C. 20230

              Dear Dr. Baker:

              I hereby submit the Texas Coastal Management Program (CMP) to the National Oceanic
              and Atmospheric Administration (NOAA) for approval. As you are aware, I withdrew the
              previously submitted CMP to give the Texas Legislature the opportunity to review and
              revise the CMP before seel!ng NOAA approval.

              The current Texas CMP meets the requirements of the Coastal Zone Management Act
              (CZIMA) and will bring a coordinated approach to managing Texas' coastal resources
              without imposing unnecessary regulations on Texans. The CMP is the product of lengthy
              and difficult negotiations between groups and individuals representing diverse coastal
              interests.

              I have reviewed and certify that the State of Texas has the authority and the organization
              capabilities to implement the CMP. I further designate the General Land Office as the
              agency to receive and administer grants under the CZMA. If you have any questions
              during the review procedure, please contact Andy Barrett, my Environmental Policy
              Director, at (512) 463-2198.

              Sincerely,

              GE    . USH

              GWB:ab

              cc:    Jeff Benoit, NOAA

                       Posr OmCE Box 12428 AtusnN, TExs 78711 (512) 463-2000 (VoICE)/(512) 475-3165 CTDD)

                                            CHAPTER ONE.
    is ~~~~~~~INTRODUCTION
      A. The Texas Coast

             The Texas Gulf Coast is one of the most biologically rich and ecologically diverse
      regions of the state. It comprises barrier islands and peninsulas, shallow bays and lagoons,
      marshes and tidal flats, forested areas, fertile coastal prairie, and semiarid brush country.

             The coastal environment is highly dynamic, continuously changed by tides, currents,
      wind, waves, subsidence, and periodic violent storms. But while it is a naturally resilient
      environment, human activities can, and frequently do, adversely impact coastal resources.

             More than one-third of the state's permanent population and 70 percent of its economic
      activity are located within I100 miles of the Texas coastline. The Texas coast houses half the
      nation's petrochemical industry and more than a quarter of its refining capacity. Steady growth
      of these industries, as well as burgeoning marine commerce, agriculture, commercial and
      recreational fishing, and a thriving tourist trade, has intensified competition for coastal resources.

             Continued economic and population growth are projected for the Texas coast. And as
      population and development increase, so do waste generation, environmental degradation, and
      the risks of irrevocable damage to natural systems. The loss of valuable coastal natural resources
      not only jeopardizes the environmental health of the area, but also threatens the economic health
      and the very livelihoods of coastal residents.

             While ample state and federal regulatory authority exists for the management of Texas
      coastal resources, a piecemeal approach to regulation and problem-solving has often been
      employed. Agencies or programs have been established to address single activities, resources, or
      substances in response to human health, resource management, and environmental problems.

             This splitting of regulatory authority among a number of entities has, in some cases, been
      an impediment to efficient management. Such fragmentation has the pontential to create
      inconsistencies in policies and regulations that could hamper effective resource management and
      increase the burden on the regulated community in planning operations and attempting to comply
      with environmental requirements.

      B. The Texas Coastal Managyement Progrram: A Coonerative Solution

             In the late 1980s, coastal communities initiated a grass roots campaign for state assistance
      in resolving the problem of fragmented management of coastal resources and other complex
      coastal problems that exceeded local government authority. In response to this effort, in 1989
     the Texas Legislature directed the General Land Office (GLO) to coordinate development of a
     comprehensive, long-range plan for the management of state-owned coastal lands.

             Following that first directive, the legislature enacted a series of bills which established
      authority for development of the Texas Coastal Management Program (TCMP) and steered the
      course of the TCMP. The final legislative action in 1995 made a number of changes to the

      Texas Coastal Management Program Final EIS    Part 11 1-i                         August 1996

    program and renewed the state's commitment to efficient and effective coastal resource
    management. This action led in October 1995 to the TCMP's final submission for federal
    approval.

           The purpose of the TCMP is to improve the management of the state's coastal resources
    and to ensure the long-term ecological and economic productivity of the coast, all within the
    framework of the federal Coastal Zone Management Program. The TCMP is a "networked"
    program linking the regulations, programs, and expertise of state, federal, and local entities that
    manage various aspects of coastal resource use. Specifically, the TCMP identifies coastal natural
    resource areas; identifies uses or activities that may adversely affect those areas; and sets uniform
    policies to address those effects.

           Management of the program is overseen by the Coastal Coordination Council (Council),
    which is chaired by the commissioner of the General Land Office. The other members of the
    Council are the chair of the Parks and Wildlife Commission; the chair of the Texas Natural
    Resource Conservation Commission; the chair of the Texas Transportation Commission; the
    chair of the Texas Water Development Board; a member of the Texas State Soil and Water
    Conservation Board; a member of the Railroad Commission of Texas; and four gubernatorial
    appointees. The gubernatorial appointees are a local elected official from the coastal area, a
    coastal resident, a coastal business person, and a representative of agriculture.

           The Council is charged with adopting uniform goals and policies to guide decision-
    making by all entities regulating or managing natural resource use within the Texas coastal zone,
    and to review significant actions taken or authorized by state agencies and subdivisions that may
    adversely affect coastal natural resources. Ultimately, the TCMP is designed to avoid
    duplication of effort and conflicts in agency policies and regulatory decisions, and to address five
    primary issues of concern to coastal communities: coastal erosion, wetlands protection, water
    supply and water quality, dune protection, and shoreline access.

    C. Princinal Issues of State Concern

    Coastal Erosion

           Between the mid- I800s and 1982, more than 27,000 acres of Gulf shoreline were lost
    through erosion, an average of 225 acres per year. Bay shoreline loss during the same period
    averaged 287 acres per year. Over one-third of Texas Gulf beaches and up to two-thirds of Texas
    bay shores are eroding.

           Erosion is caused both by natural processes and human activity. Damming rivers blocks
    sediment supply, and constructing navigation and erosion response structures compounds erosion
    in some areas. As a result, valuable beaches, wetlands, and agricultural, industrial, and
    residential lands are being lost.

    Texas Coastal Management Program Final EIS    Part H 1-2                          August 1996

    Wetlands and Other Aouatic Resources

           Coastal wetlands are among the most valuable of coastal natural resources. They filter
    pollutants from water and trap suspended materials, letting them settle to the bottom. Wetlands
    help reduce shoreline erosion by absorbing and dissipating wave energy, binding and stabilizing
    sediments, and increasing sediment deposition. They also protect upland areas from flooding by
    storing floodwaters and reducing, capturing, and retaining surface water runoff, with the added
    benefit of allowing water to infiltrate underground recharge zones. Finally, wetlands provide
    valuable habitat for wildlife and plant life, a relatively safe environment for threatened and
    endangered species, and important feeding and breeding places for many commercially and
    recreationally valuable fish species.

           Again, both natural and human activities contribute to the destruction or degradation of
    coastal wetlands. Wetlands are drained for crop and timber production and mosquito control.
    They are dredged for navigation and flood protection, used as disposal sites, and filled for
    commercial, residential, and industrial development. Materials such as pesticides and other
    pollutants are discharged into wetlands, and their soils are mined for sand and gravel. Finally,
    natural phenomena such as sea level rise, droughts, hurricanes, erosion, and habitat alterations by
    wildlife can also destroy or degrade coastal wetlands.

    Water Supnplv and Water Oualitv

           The element probably most essential to the continued productivity of the coastal region is
    sufficient amounts of clean water. Appropriation of water rights, maintenance of adequate
    freshwater inflows into bays and estuaries, and management of waste and point-source and
    nonpoint-source discharges are all vital concerns.

           The productivity of fisheries depends on freshwater inflows to Texas bays and estuaries.
    These inflows transport nutrients and sediments that promote estuarine productivity, while the
    seasonal inundation of wetlands and periodic flushing of the bays by freshwater inflows can
    remove pollutants, parasites, bacteria, and viruses harmful to the estuarine ecosystem.

           Point source discharges and nonpoint-source runoff can adversely impact coastal waster
    quality. Degraded water quality can pose risks to public health, damage the biological
    productivity of bays and estuaries, and interfere with public recreation and use of coastal waters.

           Since the passage of the Clean Water Act and implementation of the state's water quality
    program, industrial point source discharges have been increasingly regulated and the impact of
    point source discharges on coastal waters has been reduced. For example, in recent years, point
    source discharges have been implicated in few shell fish bed closings. Nonpoint-source
    discharges include runoff from urban areas, agriculture activities, residential lands, industrial
    sites, and solid and hazardous waste facilities. Nonpoint-source discharges enter surface waters
    in a diffuse manner and at intermittent intervals tied mostly to the occurrence of meteorological
    events. The extent and impact of nonpoint-source pollution on coastal waters is related, at least
    in part, to certain uncontrollable climatic events, as well as local geographic and geologic
    conditions and may differ greatly from place to place and year to year. In some areas, the impact
    of nonpoint-source discharges on coastal water quality exceeds that of point source discharges.

    Texas Coastal Management Program Final EIS  Part 11 1-3                              August 1996

    Dune Protection

           The protection of dunes is essential to a healthy coastal environment and economy.
    Dunes protect inland areas from storms and flooding, slow shoreline erosion by storing sand,
    serve as habitat for wildlife, and provide an aesthetic amenity to beach users and beachfront
    property owners.

           Many human activities directly and indirectly destroy or damage dunes or discourage the
    natural formation of new dunes. Dunes are destroyed when sand is removed for fill material or
    are levelled for construction. Pedestrians and vehicles can uproot dune vegetation that anchors
    the sand, making dunes vulnerable to wind and wave erosion. Development immediately
    landward of dunes can destroy them by increasing traffic or by limiting the amount of sand
    available for maintenance of the natural dune system.

    Shoreline Access

           With population growth and an increase in tourism to the Texas coastal area, the demand
    for public access to the shoreline is growing. Beach users, fishermen, pleasure boaters, and
    naturalists all demand shoreline access. In more heavily populated areas, this demand for
    recreational access may conflict with the demand for industrial shoreline sites and access and for
    attractive shorefront sites for businesses and homes.

           The Texas Open Beaches Act ensures the public's right to use state-owned beaches on the
    seaward shore of the Gulf of Mexico. However, conflicts often arise, such as the one between
    the public's right of access and the environmental and human safety issues imposed by vehicle
    traffic on the beach.

    D.     Coastal Natural Resource Areas

           To address the issues of concern, and in response to the requirements of the Coastal
    Coordination Act, the Council has designated the areas listed below as coastal natural resource
    areas (CNRAs) requiring special management under the Coastal Management Program. The
    definitions of all CNRAs, as adopted by the Council, can be found in Appendix B - "Rules for
    CMP Goals and Policies."

      * Waters of the open Gulf of Mexico are waters seaward of coastal barrier islands and bays
           and estuaries and extending to the territorial limits of the state (i.e., approximately 10.36
           miles offshore). Waters in the open Gulf of Mexico serve as habitat for numerous
           commercial and recreational fishery species.

      � Waters under tidal influence are those waters in the state that are contained behind coastal
           barrier islands and within bays and estuaries and rivers to the inland extent of tidal
           influence. Together, waters in the open Gulf of Mexico and waters under tidal influence
           are considered "coastal waters." Waters under tidal influence provide important aquatic
           habitat, serve as prime recreation areas, and provide some domes tic water supply.

    Texas Coastal Management Program Final EIS    Part 11 1-4                         August 1996

                  * Submerged lands are lands underlying waters under tidal influence or waters of the open
                     Gulf of Mexico that are owned by an agency or subdivision of the state, or by a person
                     other than the state. The sediments of coastal public submerged lands are habitat for a
                     diverse benthic, or bottom-dwelling, animal community.

                  * Coastal wetlands are those areas having a predominance of hydric soils that are inundated
                    or saturated by surface water or groundwater at a frequency and duration sufficient to
                    support, and that under normal circumstances support, the growth and regeneration of
                    hydrophytic vegetation, as defined in the Texas Water Code, Chapter I11, Subchapter J,
                    and that lie within the Coastal Facility Designation Line and within one mile from the
                    mean high tide line of tidal river and stream segments to the inland extent of tidal
                    influence, except for the Trinity and Neches rivers. On the Trinity River, coastal
                    wetlands are those wetlands occurring within the area located between the mean high tide
                    line on the western shoreline of the river and FM Road 565 and FM Road 1409, and
                    wetlands within the area located between the mean high tide line on the eastern shoreline
                    of that portion of the river and FM Road 563. On the Neches River, coastal wetlands are
                    those wetlands occurring within one mile of the mean high tide line on the western
                    shoreline of the river, and wetlands within the area located between the mean high tide
                    line on the eastern shoreline of that portion of the river and FM Road 105. Coastal
                    wetlands provide wildlife habitat, convey and store floodwaters, trap sediment, and
                    reduce water pollution.

                  * Submerged aquatic vegetation is rooted aquatic vegetation growing in permanently
                    inundated areas in estuarine and marine systems. Submerged aquatic vegetation provides
                    valuable habitat for numerous commercial and recreational fishery organisms and for
                    wildlife.

                  * Tidal sand and mud flats are silt, clay, or sand substrates, unvegetated or vegetated by
                    algal mats, that occur in the intertidal zone and that are regularly or intermittently
                    exposed and flooded by tides. Mud flats and sand flats are the feeding grounds for
                    coastal shorebirds, fish, and invertebrates.

                  * Oyster reefs are natural or artificial formations in intertidal or subtidal areas that are
                    composed of oyster shell, live oysters, and other organisms and that are discrete,
                    contiguous, and clearly distinguishable from scattered oysters. Oyster reefs not only
                    support the oyster fishery but also serve as habitat, forage ground, or hiding places for
                    numerous estuarine species.

               *   Hard substrate reefs are naturally occurring hard substrate formations, such as rock
                    outcrops or serpulid worm reefs (living or dead), in intertidal or subtidal areas that are
                    discrete and contiguous. Hard substrate reefs provide habitat for numerous invertebrates.

               *   Coastal barriers are undeveloped areas on barrier islands and peninsulas or otherwise
                    protected areas, as mapped by the U.S. Fish and Wildlife Service (i.e., Coastal Barrier
                    Resource System Units). Coastal barriers are subject to wave, tidal, and wind energy from
    0            ~    ~~~the Gulf of Mexico. Barrier islands are Galveston, Matagorda, San Jose, Mustang, and
                    North and South Padre islands. Coastal barriers act as important buffers against coastal

             Texas Coastal Management Program Final EIS    Part U1 1-5                          August 1996

           storms and protect coastal natural resource areas and the mainland from erosion, flooding,
           and destruction.

      0   Coastal shore areas are all areas within I100 feet landward of the high water mark on
           submerged land. Shore areas function as buffers, protecting upland habitats from erosion
           and storm damage and adjacent marshes and waterways from water quality degradation.
           Designation of coastal shore areas as a CNRA is exclusively intended to address erosion
           impacts within coastal shore areas.

         * Gulf beaches are beaches bordering on the Gulf of Mexico that extend inland from the
           line of mean low tide to the natural line of vegetation bordering on the seaward shore of
           the Gulf of Mexico, or such larger contiguous area to which the public has acquired a
           right of use or easement to or over by prescription, dedication, or estoppel, or has retained
           a right by virtue of continuous right in the public since time immemorial. Texas beaches
           serve as important recreational areas and provide protection for landward structures
           during storms.

      *   Critical dune areas are protected sand dune complexes on the Gulf shoreline within
           1,000 feet of mean high tide. Sand dunes help prevent loss of life and property by
           absorbing the impact of storm surge and high waves and by stopping or delaying
           intrusion of water inland.

        * Special hazard areas are areas designated by the administrator of the Federal Insurance
           Administration under the National Flood Insurance Act as having special flood, mudslide
           (i.e., mud~flow) and/or flood-related erosion hazards, and shown on a Flood Hazard
           Boundary Map or Flood Insurance Rate Map as Zone A, AO, Al -30, AE, A99, All, VO,
           VIl-30, VE, V, M, or E. These areas are important because they receive the brunt of
           storms, act as natural water-detention systems, and are natural filters for upland runoff.

      �   Critical erosion areas are those Gulf and bay shorelines that are undergoing erosion and
           are designated by the commissioner of the GLO under Texas Natural Resources Code,
           �33.601(b). Critical erosion areas require comprehensive management because loss of
           life and property can result if development occurs in these areas.

      *   Coastal historic areas are sites in the National Register of Historic Places on public land
           and state archaeological landmarks that are identified by the Texas Historical
           Commission as being coastal in character. Coastal historic areas provide important
           information about the coastal history and culture of the state.

     *    Coastal preserves are any lands owned by the state that are designated and used as parks,
           recreation areas, scientific areas, wildlife management areas, wildlife refuges, or historic
           sites and that are designated by the Texas Parks and Wildlife Department as being coastal
           in character. These areas are valued for the recreational opportunities they afford and for
           the diverse habitats they comprise.

    Texas Coastal Management Program Final EIS    Part II 1-6                         August 1996

             E. Uses to Be Managyed

                     In addition to designating CNRAs in need of special management, the Council has
             adopted uniform policies to better manage uses and activities that may adversely affect CNRAs.
             The following is a list of uses to be managed which are subject to TCMvP policies.

                *   Electric generating and transmission facilities include siting, construction, and
                     maintenance of electric generating facilities, electric transmission lines, and associated
                     facilities such as waste management, and activities associated with access.

                *   Oil and gas exploration and production includes geophysical operations, waste
                     management, pipeline placement, and activities associated with access to the exploration
                     or production site.

                  * Residential development includes siting, construction, and maintenance of single- and
                     multi-unit dwellings; filling; canal dredging; placement of structures for shoreline access
                     and shoreline protection; and on-site sewage disposal, stormwater control, and waste
                     management for subdivisions and municipalities.

                  * Commercial development includes siting, construction, and maintenance of offices,
                     warehouses, retail stores, hotels, restaurants; filling; waste management; stormwater
                     management; dredging; and the construction of structures for shoreline access and
                     shoreline protection.

                0   Industrial development includes siting, construction, and maintenance of manufacturing
                     and petrochemical plants, refineries, processing facilities, and ports; mineral mining;
                     waste management; air pollution control; filling; dredging; construction of structures for
                     shoreline access and shoreline protection; and stormwater management.

                *   Public purpose development includes siting, construction, and maintenance of public
                     structures such as hospitals, schools, municipal buildings, and public works (e.g., dams,
                    reservoirs, flood control projects), and associated activities such as filling, waste
                    management, dredging, and construction of structures for shoreline access and shoreline
                    protection.

                0   Transportation includes siting, construction, and maintenance of roads, highways,
                     bridges, causeways, airports, railroads, and non-energy transmission lines, and associated
                     activities such as filling, dredging, draining, and stormwater management.

                  * Agriculture includes farming, ranching, aquaculture, silviculture, range management, and
                     associated activities such as water impoundments and diversions.

                *   Recreational development and uses include siting, construction, and maintenance of state-
                    owned fishing cabins, artificial reefs, and public facilities, and associated activities such
                    as waste management, dredging, stormwater management, and construction of structures
    0             ~    ~~~~for shoreline access and shoreline protection, boating (including boat ramps), fishing, and
                    hunting.

             Texas Coastal Management Program Final EIS    Part 11 1-7                          August 1996

    F. Goals of the Texas Coastal Manaeement Promram

           In managing the uses and activities and their impact on CNRAs, the goals of the TCMP,
    as set forth in the Council's rules, are:

       1.  to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and
           values of CNRAs;

      2. to ensure sound management of all coastal resources by allowing for compatible
           economic development and multiple human uses of the coastal zone;

      3. to minimize loss of human life and property due to the impairment and loss of protective
           features of CNRAs;

      4. to ensure and enhance planned public access to and enjoyment of the coastal zone in a
           manner that is compatible with private property rights and other uses of the coastal zone;

      5. to balance the benefits from economic development and multiple human uses of the
           coastal zone, the benefits from protecting, preserving, restoring, and enhancing CNRAs,
           the benefits from minimizing loss of human life and property, and the benefits from
           public access to and enjoyment of the coastal zone;

      6. to coordinate agency and subdivision decision-making affecting CNRAs by establishing
           clear, objective policies for the management of CNRAs;

      7. to make agency and subdivision decision-making affecting CNRAs efficient by
           identifying and addressing duplication and conflicts among local, state, and federal
           regulatory and other programs for the management of CNRAs.

      8.  to make agency and subdivision decision-making affecting CNRAs more effective by
           employing the most comprehensive, accurate, and reliable information and scientific data
           available and by developing, distributing for public comment, and maintaining a
           coordinated, publicly accessible geographic information system of maps of the coastal
           zone and CNRAs at the earliest possible date;

      9. to make coastal management processes visible, coherent, accessible, and accountable to
           the people of Texas by providing for public participation in the ongoing development and
           implementation of the Texas CMP; and

      10. to educate the public about the principal coastal problems of state concern and technology
           available for the protection and improved management of CNRAs.

    G. A Strategv for the Texas Coast

           The TCMP lays out the state's long-term strategy for addressing the principal coastal
    issues and improving management of coastal natural resource areas. It is built on a solid,
    existing framework. Much of the Texas coast is owned and directly managed by units of state or

    Texas Coastal Management Program Final EIS    Part II 1-8                           August 1996

             Federal government. There are more than 557,000 acres of state or Federal parks, preserves,
             refuges, and other areas on the Texas coast that are managed for conservation or preservation
    is purposes.This includes the Padre Island National Seashore, which covers more than 130,000
             acres on the world's longest barrier island. There are roughly 1,375,000 total acres of wetlands,
             seagrasses, tidal flats and other critical areas in the coastal zone. Of these, approximately 60
             percent are on publicly owned lands.

                    A myriad of federal, state, and local units of government exercise regulatory authority
             over the parts of the coast that are not publicly owned. Over I181,000 acres of the Texas coastal
             zone are included in Coastal Barrier Resource Units. Under the Coastal Barrier Resources Act,
             development in these areas is highly limited. The bays, estuaries, shores, wetlands, and dunes of
             the Texas coast are protected by a comprehensive web of federal, state, and local authorities.
             The TCM1P is built on the most efficient use of this fr-amework.

                    Throughout development of the TCMP, the general public, state and Federal agencies,
             local governments, regional agencies, and interest groups were consulted extensively. Numerous
             public hearings were held, and comments and recommendations from the public and
             governmental entities were considered carefully during development of the program. The
             unprecedented level of cooperation and input used in designing the TCMP will help ensure its
             success in preserving and protecting the Texas coast for future generations.

             H. What the TCMIP Will Accomiflish

                    The TCMP is designed to enhance protection and management of CNRAs, particularly
             coastal wetlands and other critical areas, management of the beach and dune system, submerged
             lands, and coastal bays and estuaries.

                    The TCMP will foster improved coordination among numerous local, state, and Federal
             government entities with jurisdiction in the coastal area through establishment of uniform state
             coastal policies. Better coordination will result not only from the establishment of the multi-
             agency Council but from the Council's exercise of consistency review authority over local, state
             and federal actions.

                    Through the TCM4P grants program and the coordinated exercise of existing authorities,
            the TCMIP will enhance the management of coastal development. In particular, the program will
             help maintain and enhance public access to Gulf beaches, reduce the loss of life and property
             from coastal hazards, and improve management of major actions, which are those requiring
             preparation of an environmental impact statement.

                    In addition, the TCMP will foster improved compliance with the program's policies
             through technical assistance to permit applicants by the Permitting Assistance Group (PAG).
             The PAG will work with applicants, particularly individuals and small businesses, early in the
             permitting process to meet the requirements of the TCM1P. Compliance with coastal policies
             should be enhanced as a result of the requirement that the Council prepare an annual program
            report summarizing efforts to implement the program by state agencies and political
             subdivisions.

             Texas Coastal Management Program Final EIS    Part 11 1-9                         August 1996

            The TCM1P also contains provisions to simplify permitting processes. Through the
    TCMP, joint public notices for state and federal wetlands permits are expected to be developed.
    In addition, the PAG will, among other things, provide a simple explanation of all permit
    requirements and coordinate the agency permitting schedules when many agencies are required
    to approve or authorize the same project.

           Finally, through the exercise of federal consistency review authority, the TCMP will
    ensure that federal agencies adhere to the State of Texas's goals and policies for management of
    its coastal resources. In Particular, the TCMP is designed to promote the beneficial use of
    dredged material from commercially navigable waterways.

           Overall, the TCM1P is a cooperative program to improve management of the state's
    valuable coastal resources by reducing fragmentation, conflict and overlap among government
    entities. The specific benefits to the state and citizens of Texas from Federal approval of the
    TCM1P are discussed in Part I and Part III of the Final Environmental Impact Statement.

    Texas Coastal Management Program Final EIS    Part if 1-10                          August 1996

                                          CHAPTER TWO.
                     THE TEXAS COASTAL MANAGEMENT BOUNDARY

    A. Introduction

           The boundaries of the area subject to the Texas Coastal Management Program were
    delineated in accordance with the requirements of the Federal Coastal Zone Management Act
    (�306(d)(2)(A)), the Federal program development and approval regulations (15 CFR ��923.31-
    34), and the Texas Coastal Coordination Act (TEX. NAT. RES. CODE ANN. �33.052).

           The CZMA requires that the state's coastal zone boundary include four elements: an
    inland boundary, a seaward boundary, interstate boundaries, and federal lands excluded from the
    boundary.

           The federal regulations specify that the inland boundary must encompass "those areas the
    management of which is necessary to control uses which have direct and significant impacts on
    coastal waters" (15 CFR �923.31(a)(1)). A state's inland boundary must also include special
    management areas, waters under saline influence, salt marshes and wetlands, beaches,
    transitional and intertidal areas, and islands. Federal regulations stipulate that the boundary must
    be drawn clearly and precisely so that property owners, or anyone engaging in activities subject
    to the program, can easily determine whether they are within the management area (15 CFR
    �923.31).

           The coastal zone boundary encompasses the area within Texas lying generally seaward of
    the coastal facility designation line, which is the line adopted under the Oil Spill Prevention and
    Response Act of 1991 to describe areas where oil spills are likely to enter tidal waters. It also
    includes certain wetlands landward of the coastal facility designation line. These coastal wetland
    areas generally extend inland one mile from the shoreline along the extreme inland reach of
    certain tidal rivers and streams.

           The boundary of the Texas coastal zone includes all the coastal natural resource areas
    (CNRAs) identified in Chapter Four of this document and defined in 31 TAC �501.3(b) and the
    Coastal Coordination Act.

           There is a distinction between the coastal zone as defined by the boundary and the
    CNRAs. All CNRAs are located within the coastal zone boundary, but not all areas within the
    boundary are considered CNRAs.

    B. General Descrintion of the Coastal Zone Boundary

           The Coastal Management Program boundary (fig. 1) delineates the coastal zone. Generally,
    the boundary encompasses the area within Texas lying seaward of the coastal facility designation
    line. It also includes coastal wetlands landward of the coastal facility designation line. The boundary
    includes areas within the following Texas counties: Cameron, Willacy, Kenedy, Kleberg, Nueces,
    San Patricio, Aransas, Refugio, Calhoun, Victoria, Jackson, Matagorda, Brazoria, Galveston, Harris,
    Chambers, Liberty, Jefferson, and Orange. The seaward reach of the boundary extends into the Gulf

    Texas Coastal Management Program Final EIS    Part II 2-1                        August 1996

    of Mexico to the limit of state title and ownership under the Submerged Lands Act (43 United States
    Code � 1301 et seq.), or three marine leagues.

    C.     Legal Descrintion of the Coastal Zone Boundary

           The boundary is more particularly described in terms of (1) the inland boundary, (2) the
    seaward boundary, (3) the boundary with the State of Louisiana, (4) the boundary with the Republic
    of Mexico, and (5) the excluded federal lands.

      1. The Inland Boundarv

           The inland boundary encompasses the following areas.

           (a) Roadway portion of boundary. The coastal facility designation line begins at the
           International Toll Bridge in Brownsville, thence northward along U.S. Highway 77 to the
           junction of Paredes Lines Road (FM Road 1847) in Brownsville, thence northward along FM
           Road 1847 to the junction of FM Road 106 east of Rio Hondo, thence westward along FM
           Road 106 to the junction of FM Road 508 to the junction of FM Road 1420, thence
           northward along FM Road 1420 to the junction of State Highway 186 east of Raymondville,
           thence westward along State Highway 186 to the junction of U.S. Highway 77 near
           Raymondville, thence northward along U.S. Highway 77 to the junction of FM Road 774 in
           Refugio, thence eastward along FM Road 774 to the junction of State Highway 35 south of
           Tivoli, thence northward along State Highway 35 to the junction of State Highway 185
           between Bloomington and Seadrift, thence northwestward along State Highway 185 to the
          junction of FM Road 616 in Bloomington, thence northeastward along FM Road 616 to the
          junction of State Highway 35 east of Blessing, thence southward along State Highway 35 to
           the junction of FM Road 521 north of Palacios, thence northeastward along FM Road 521
           to the junction of State Highway 36 south of Brazoria, thence northward along State
           Highway 36 to the junction of State Highway 332 in Brazoria, thence eastward along State
           Highway 332 to the junction of FM Road 2004 to the junction of Interstate Highway 45
           between Dickinson and La Marque, thence northwestward along Interstate Highway 45 to
           the junction of Interstate Highway 610 in Houston, thence east and northward along
           Interstate Highway 610 to the junction of Interstate Highway 10 in Houston, thence eastward
           along Interstate Highway 10 to the Louisiana State line.

           (b) Tidal portion of boundary. The boundary runs at a distance of 100 yards inland of the
           mean high tide line along each of the following tidal river and stream segments from the
           point where they intersect the roadway boundary:

                  (1) on the Arroyo Colorado, to a point 100 meters (110) yards downstream of
                  Cemetery Road south of Port Harlingen in Cameron County.

                  (2) on the Nueces River, to Calallen Dam 1.7 kilometers (1.1 miles) upstream of U.S.
                  Highway 77 in Nueces/San Patricio County.

    Texas Coastal Management Program Final EIS    Part II 2-2                      August 1996

                                                            FIGURE I

    *                        ~~~Texas Coastal Management Program

                             -  V      & ~~~~~~~~~~~~T~~~~-SAN'JACINTO    "-r
                                                                     MflNTCOMERY            HA RINt~
                                             ,jrWASHINGTON

          HAYk                    -'M                                                          1"         'RN
                                     FAYETTE   )W~E
       )hKAIY )    i-.    ALDWEILL               AUSTIN- .,jv A       HARRIS

                  -'9ON7AL-ESI

                  A> ' OE'W~~~ITT'

            KARNES  ,,     t\VCOI

                -1>

                 SAWTRCIE

               I~~~~~~~~~~~~~~~~~~~~~t

                                                                 Coastal Zone Boundary
                                                                 Coastal Wetlands Only
    LOOKS                                                                                 TEXAS GENERAL LAND OFFICE

                                                                                                    GARRY MAURO

                                                             II 2-3

                  (3) on the Guadalupe River, to the Guadalupe-Blanco River Authority Salt Water
                  Barrier 0.7 kilometers (0.4 miles) downstream of the confluence of the San Antonio
                  River in Calhoun/Refugio County.

                  (4) on the Lavaca River, to a point 8.6 kilometers (5.3 miles) downstream of U.S.
                  Highway 59 in Jackson County.

                  (5) on the Navidad River, to Palmetto Bend Dam in Jackson County.

                  (6) on Tres Palacios Creek, to a point 0.6 kilometers (1.0 mile) upstream of the
                  confluence of Wilson Creek in Matagorda County.

                  (7) on the Colorado River, to a point 2.1 kilometers (1.3 miles) downstream of the
                  Missouri-Pacific Railroad in Matagorda County.

                  (8) on the San Bernard River, to a point 3.2 kilometers (2.0 miles) upstream of State
                  Highway 35 in Brazoria County.

                  (9) on Chocolate Bayou, to a point 4.2 kilometers (2.6 miles) downstream of State
                  Highway 35 in Brazoria County.

                  (10) on Clear Creek, to a point 100 meters (110 yards) upstream of FM Road 528 in
                  Galveston/Harris County.

                  (11) on Buffalo Bayou, to a point 400 meters (440 yards) upstream of Shepherd
                  Drive in Harris County.

                  (12) on the San Jacinto River, to Lake Houston Dam in Harris County.

                  (13) on Cedar Bayou, to a point 2.2 kilometers (1.4 miles) upstream of Interstate
                  Highway 10 in Chambers/Harris County.

                  (14) on the Trinity River, to a point 3.1 kilometers (1.9 miles) downstream of U.S.
                  Highway 90 in Liberty County.

                  (15) on the Neches River, to a point 11.3 kilometers (7.0 miles) upstream of
                  Interstate Highway 10 in Orange County.

                  (16) on the Sabine River, to Morgan Bluff in Orange County.

           (c) Wetlands portion of boundary. Except for the part of the boundary adjacent to the
           Trinity and Neches rivers, the boundary includes wetlands lying within one mile inland of
           the mean high tide line of the tidal river and stream segments identified in subparagraph (B).

                  (1) adjacent to the Trinity River, the boundary includes wetlands within the area
                  located between the mean high tide line on the western shoreline of the river and FM
                  Road 565 and FM Road 1409, and wetlands within the area located between the

    Texas Coastal Management Program Final EIS    Part II 2-4                      August 1996

                   mean high tide line on the eastern shoreline of that portion of the river and FM Road
                   563.

                   (2) adjacent to the Neches River, the boundary includes wetlands within one mile of
                   the mean high tide line on the western shoreline of the river, and wetlands within the
                   area located between the mean high tide line on the eastern shoreline of that portion
                   of the river and FM Road 105.

      2. The Seaward Boundarv

           The seaward reach of the boundary extends into the Gulf of Mexico to the limit of state title
    and ownership under the Submerged Lands Act (43 U.S.C. �1301 et seq.), three marine leagues
    (10.36 miles) from the state's Gulf shoreline.

      3. The Boundary with the State of Louisiana

           The boundary with the State of Louisiana begins in Orange County at Morgan Bluff, the
    northernmost extent of tidal influence, along the adjudicated boundary between the State of Texas
    and the State of Louisiana, as established by the United States Supreme Court in Texas v. Louisiana,
    410 U.S. 702 (1973); thence it continues in a southerly direction along the adjudicated boundary out
    into the Gulf of Mexico until it intersects the seaward boundary. Determination of the interstate
    boundary was made after consultation with the Louisiana Department of Natural Resources, as
    required by the federal regulations.

      4. The Boundarv with the Retmblic of Mexico

           The boundary with the Republic of Mexico begins at a point three marine leagues into the
    Gulf of Mexico where the line marking the seaward limit of Texas title and ownership under the
    Submerged Lands Act (43 United States Code � 1301 et seq.) intersects the international boundary
    between the United States and the Republic of Mexico, as established pursuant to the Treaty of
    Guadalupe-Hidalgo (February 2, 1848) between the United States and the Republic of Mexico;
    thence it continues in a westerly direction along the international border with the Republic of Mexico
    until it meets the International Toll Bridge in Brownsville (that point on the border marking the
    westernmost intersection of Cameron County).

      5. Excluded Federal Lands

           The excluded Federal lands are those lands owned, leased, or held in trust by the federal
    government or whose use is otherwise by law subject solely to the discretion of the Federal
    government, its officers, or its agents. Examples are military bases, national seashore lands, national
    wildlife refuge lands, National Guard installations, and lands occupied by federal facilities.
    Table 1 lists those major federal lands excluded from the coastal zone. While activities on excluded
    federal lands are not required to comply with the TCMP goals and policies, an activity that has
    spillover effects on CNRAs is subject to the federal consistency requirement (see Chapter Five).

    Texas Coastal Management Program Final EIS    Part II 2-5                       August 1996

                                                          Table 1

         EXCLUDED FEDERAL LANDS IN THE TEXAS COASTAL ZONE

      SITE                                    AGENCY                                    COUNTY

      Brazoria NWR                            USFWS                                     Brazoria

      San Bernard NWR                         USFWS                                    Brazoria/Matagorda

      Matagorda Island NWR                    USFWS                                     Calhoun/Aransas

      Aransas NWR                             USFWS                                     Calhoun/Aransas

      Anahuac NWR                             USFWS                                     Chambers

      Moody NWR                               USFWS                                     Chambers

      Laguna Atascosa NWR                     USFWS                                     Cameron

      McFaddin NWR                            USFWS                                     Jefferson

      Texas Point NWR                         USFWS                                     Jefferson

      Big Boggy NWR                           USFWS                                     Matagorda

      Lower Rio Grande NWR                    USFWS                                     Willacy/Cameron

      Johnson Space Center                    NASA                                      Harris

      Naval Station Ingleside (and            DOD                                       San Patricio/Nueces
      associated training areas)

      Naval Air Station Corpus Christi        DOD                                       Nueces
      (and associated training areas)

      Naval Air Station Kingsville (and        DOD                                      Kleberg
      associated training areas)

      Padre Island NS                         NPS                                       Kleberg/Kenedy/
                                                                                   Willacy

    NWR = National Wildlife Refuge
    USFWS =   United States Fish and Wildlife Service
    NS   =  National Seashore
    NPS  =  National Park Service
    DOD  =   Department of Defense

    NOTE: Not included in this table, but likewise excluded from the coastal zone, are individual buildings and sites such as post
    offices and small National Guard installations.

    Texas Coastal Management Program Final EIS             Part II 2-6                                        August 1996

    D.     Delineation of the Coastal Management Boundarv

           At the request of the Executive Committee of the Coastal Coordination Council (EC), an
    interagency work group of biologists, geologists, hydrologists, and attorneys representing member
    agencies of the State Agency Task Force (SATF) was formed to research and recommend boundary
    options within a 33-county planning area. The work group evaluated the planning area to determine
    the locations of CNRAs and the types and locations of activities having adverse effects on CNR.As.
    Existing maps, studies, and agency experts on natural resources were consulted during the analysis.

           The work group identified three options: (1) a boundary encompassing all counties with
    tidewater shorelines (the first tier of counties bordering on the Gulf of Mexico), (2) a boundary
    encompassing all first- and second-tier counties, and (3) a boundary encompassing all counties
    within the coastal watersheds.

           At the instruction of the SATF and the EC, the work group narrowed its focus to an inland
    boundary that included all first-tier counties plus four second-tier counties: Hidalgo, Fort Bend,
    Jasper, and Newton. All other second-tier counties were determined not to contain activities having
    adverse effects on CNRAs. The GLO staff also consulted with the State of Louisiana on the
    interstate boundary. No points of conflict were identified.

           The EC reviewed the information on these counties in May 1993 and recommended to the
    Council that the inland boundary be drawn to include the first tier of counties plus Hidalgo and Fort
    Bend counties. In June 1993, the Council reviewed the findings and recommendations of the EC
    and published the recommended boundary in the Texas Register as a proposed rule.

           On the basis of public comment, the Council reexamined the proposed boundary in
    September 1993 and concluded that the majority of activities occurring in Fort Bend and Hidalgo
    counties did not directly and significantly impact CNRAs. The Council adopted an inland boundary
    encompassing only the 19 first-tier counties which have tidewater influence, and the established
    seaward, interstate, and international boundaries as the TCMP boundary.

           The Council received public comment on the proposed TCMP goals and policies between
    March I15 and September 6, 1994. On the basis of public comment, the Council reexamined the
    adopted boundary in September 1994. It concluded that the majority of activities occurring in
    Liberty County did not directly and significantly impact CNRAs and proposed amending the adopted
    boundary to exclude Liberty County. In addition, the Council directed that a work group be formed
    to reevaluate the boundary in light of the adopted goals and policies of the TCMIP and to determine
    if any further modification of the boundary was necessary.

           A boundary work group consisting of representatives of Council members, interested local
    governments, and coastal legislators met in January, February, and March 1995. W~hile the work
    group was developing and considering options, the Texas Legislature established by statute that the
    coastal boundary be the coastal facility designation line and include coastal wetlands generally
    within one mile along tidal segments of rivers and streams.

    Texas Coastal Management Program Final EIS    Part II 2-7                        August 1996

                                        CHAPTER THREE.
                 ORGANIZATIONAL STRUCTURE FOR IMPLEMENTATION

    A.     Implementation

           Collectively, state agencies, cities, and counties have been managing Texas' coastal
    resources for quite some time. The laws that authorize them to manage the coast have been
    enacted piecemeal over the last several decades. These agencies and subdivisions of the state
    will implement the TCMP through their ongoing exercise of these existing authorities.

           The TCMP is based on the Coastal Coordination Act, which was first enacted in 1991
    and subsequently amended in 1995. The TCMP is designed to improve management of coastal
    natural resources by the networked agencies and subdivisions. The Act requires the networked
    agencies and subdivisions to exercise their existing legal authorities in a manner consistent with
    a uniform set of goals and policies.

           The Coastal Coordination Council (Council) is responsible for achieving the greater
    efficiency and effectiveness mandated by the Coastal Coordination Act. Therefore, the Council
    sets the TCMP goals and policies and ensures that agencies' and subdivisions' actions are
    consistent with them.

           In addition to the networked agencies and subdivisions and the Council, there are several
    committees that will help implement the TCMP. Some of these were created during program
    development and will be retained during program implementation. They are designed to improve
    interagency coordination and dissemination of program information and to help mediate
    disputes. Other coordinating mechanisms being developed or already in existence will also be
    employed. The organizational structure of the TCMP will remain flexible, especially during the
    first few years of program implementation, to ensure that the state most effectively utilizes staff
    and supporting resources.

    1. Coastal Coordination Council

           The Council's primary responsibilities for program implementation are set forth in the
    Coastal Coordination Act (TEX. NAT. RES. CODE ANN. �33.201 et seq.). These include:

       * continually reviewing the principal coastal problems of state concern;

       *  reviewing the effectiveness of the TCMP and issuing an annual report;

       �  promulgating rules adopting the goals and policies of the TCMP;

       *  periodically submitting recommendations to an agency or subdivision designed to
           encourage the agency or subdivision to carry out its functions in a manner consistent with
           the goals and policies of the TCMP;

    Texas Coastal Management Program Final EIS    Part II 3-1                           August 1996

        *  reviewing agency rulemaking actions that an agency submits to the Council for
           certification for consistency with the TCMP, and either certifying the actions as
           consistent or denying certification and reporting back to the agency with is
           recommendations for correcting any deficiencies;

        *  issuing a Notice of Program Deficiency to any agency that either implements or amends
           its certified rules in a manner inconsistent with the TCMP, and in the case of an agency
           that does not correct the deficiency, revoking certification of those rules;

       � reviewing for consistency any proposed federal action subject to the TCMP that three
           regular members of the Council submit to the Council for review, including receiving the
           oral or written testimony of any person regarding the matter;

       � reviewing for consistency any proposed state agency or subdivision action subject to the
           TCMP that three regular members of the Council submit to the Council for review,
           including receiving the oral or written testimony of any person regarding the matter;

       *  in the case of a state agency or subdivision action that the Council finds inconsistent,
           protesting the action, reporting the findings and recommendations to the agency or
           subdivision and, if the agency or subdivision does not resolve the inconsistency, referring
           the matter to the attorney general for issuance of an opinion and possibly a lawsuit, and
           either proceeding with litigation or, if possible, entering into settlement agreements with
           the agency or subdivision; and

         *reporting to the Texas Legislature on recommended statutory changes and agencies' and
           subdivisions' compliance with the TCMP.

           In addition, the Council will annually approve the funding priorities and award criteria for
    distributing the federal coastal funds that Texas will receive after federal approval of the TCMP.
    The Council will award the individual grants using those priorities and criteria.

    2. Implementation Mechanisms

           The Council will use the mechanisms described below to facilitate implementation of the
    TCMP, provide opportunity for public and agency input, and ensure compliance with the TCMP
    goals and policies.

     a. Executive Committee of the Council

           The Executive Committee of the Council (the EC), composed of management-level
    representatives of the Council members, will coordinate responses to Council inquiries and
    implementation of Council directives. The EC will also review other matters that may be the
    subject of future Council deliberation. The EC will generally meet in advance of Council
    meetings to refine these issues and recommend Council action on them.

           The EC will also issue preliminary findings for proposed agency or subdivision actions.
    Texas Coastal Management Program Final EIS    Part 11 3-2                         August 1996

    If the EC issues a preliminary finding of consistency with the goals and policies of the TCMP,
    the Council may review the proposed action only if the final agency or subdivision action is
    substantially different than it was when presented to the EC for preliminary review.

      b. Permittin, Assistance Grout)

           The Coastal Coordination Act establishes a Permitting Assistance Group (PAG). The
    PAG is composed of a representative of each Council member and is chaired by the
    representative of the Council chair. The PAG will: (1) support the EC in rendering preliminary
    consistency review decisions; and (2) provide preapplication assistance for individuals and small
    business.

           Initiated at the request of a state agency or applicant, preliminary review is intended to
    provide direct Council input into the agency or local government permitting process to assist in
    the identification and resolution of any consistency issues before an action is proposed.

           During preliminary review, the PAG will identify all consistency issues, make
    recommendations for their resolution, and present the proposed action to the EC for a
    preliminary consistency finding.

           The PAG will also help facilitate preapplication assistance upon request to any individual
    or small business owner filing an application for an agency or subdivision permit or other action
    subject to the TCMP. This assistance will identify all necessary permits, simply explain all
    permitting requirements, and help the applicant complete the application.

           Finally, the PAG, under EC guidance, will coordinate agencies' consistency
    determinations upon request where multiple authorizations or permits are required for a single
    project.

     c. Interaeencv Coordination Grouns

           To assist the Council in evaluating the consistency of federal development projects with
    the TCMP policies, the TCMP rules allow a federal agency to form an ad hoc Interagency
    Coordination Group (ICG). At a minimum, each ICG will include, as voting members,
    representatives of the local project sponsor, federal and state natural resource and regulatory
    agencies with jurisdiction over the project, and three Council members or their representatives.
    The ICG, with input from the Council, will advise the federal agency on the consistency of the
    project with the TCMP goals and policies. If a majority of the Council members on the ICG
    support the group's assessment of the project's consistency, the ICG will develop a formal
    consistency determination for the project. If the federal agency submits a consistency
    determination to the Council incorporating the ICG's recommendations and/or conditions for
    consistency with the TCMP, the Council will issue a general consistency agreement for the
    project.

    Texas Coastal Management Program Final EIS    Part H 3-3                            August 1996

      d. Maintenance Dredaina Memorandum of Amreement

           Because of the extensive federal maintenance dredging activities within the coastal I
    boundary, the Council executed a memorandum of agreement with the U.S. Army Corps of
    Engineers (Corps) in October 1994. The MOA establishes a multi-year period for consistency
    review of ongoing federal maintenance dredging projects within the TCMP boundary. Through
    the MOA, a schedule for review of particular projects was established. Without the MOA, the
    Corps would have to prepare and submit consistency determinations on all its projects within 120
    days of federal approval of the TCMP, and the state would have to review and respond to the
    consistency determination within 60 days (15 CFR Part 930). The time lines stipulated in the
    MOA allow the state and Corps to conduct more complete and thorough reviews of federal
    maintenance dredging projects.

           For each maintenance dredging project (e.g., Gulf Intracoastal Waterway), the Corps will
    produce a long-term maintenance dredging plan that is consistent with the TCMP. If the state
    disagrees with the Corps consistency determination for a maintenance dredging plan, the Corps
    and the state will negotiate directly or enter into some form of alternative dispute resolution. The
    product will be a negotiated consistency determination for the project's maintenance dredging
    plan. The plan can include a schedule for any necessary changes in current maintenance dredging
    practices for the project, thus providing flexibility. The process includes opportunities for ports
    and other local sponsors of navigation projects to participate in reviews of their projects.

     e. Trans-Texas Water Procram Policy Management Committee

           The Council will utilize the existing Trans-Texas Water Program Policy Management
    Committee (PMC) to ensure that this water development project is consistent with the TCMP.
    The PMC is a multiagency body with responsibility for the overall planning of the Trans-Texas
    Water Program. It currently includes three individual Council members (TWDB, TNRCC, and
    TPWD) and one representative of the Council as a whole (GLO) who are responsible for
    ensuring full application of the TCMP goals and policies in the planning of the Trans-Texas
    project.

           If the Council, acting through its representatives on the PMC, finds the Trans-Texas
    Water Program and any water rights actions ([EX. NAT. RES. CODE ANN. �33.2053(0(8)-
    (10)) to be taken pursuant to the program consistent with the TCMP goals and policies, further
    Council review of the proposed actions will be unnecessary. This review of proposed actions for
    consistency at the earliest planning stage will avoid last-minute delays due to consistency
    concerns.

     f. Advisorv Committee

           The Council will establish an advisory committee to assist in implementation of the
    TCMP and to provide a formal mechanism for ongoing public input into the program. Four or
    five regional subcommittees may be established to represent the citizens, local governments, and
    other interested parties in each coastal region. The committee will meet at least annually and
    will report regularly to the Council. By law, advisory committee members may only include
    persons with expertise in coastal matters and persons who live in the coastal area.

    Texas Coastal Management Program Final EIS    Part II 3-4                         August 1996

           To facilitate public participation in the TCMP, the regional subcommittees would be
    responsible for identifying coastal issues of concern in each region, hosting regular local
    meetings in each region, and disseminating program information to the public.

     g. Corps of Engineers Preatrplication Process

           State and federal regulatory and natural resource agencies meet biweekly with the
    Galveston District Corps of Engineers to review applications for Corps permits (e.g., �404
    permits) received during the previous two weeks. The agencies normally participating in this
    process are the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Texas
    Parks and Wildlife Department, the U.S. Environmental Protection Agency, the Texas Natural
    Resource Conservation Commission, and the GLO. The biweekly meetings give participating
    agencies an opportunity to comment on the applications and identify any preliminary concerns.
    Project sponsors may present their proposed projects to the interagency group for comment even
    before applying for a Corps permit. The Council plans to use this process to identify potential
    consistency issues with permits or proposed projects.

    3. Texas General Land Office - Lead State Coastal Aencv

           The federal regulations (15 CFR �923.48(b)) require the state's designated lead agency to
    have the fiscal and legal capability to: (1) accept and administer grant funds; (2) make contracts
    or other arrangements (such as pass-through grants) with eligible agencies and local governments
    and other eligible entities for the purpose of carrying out specific management tasks; and (3)
    account for a recipient's expenditure of implementation funds. The designated lead agency must
    have the administrative capability to: (1) monitor and evaluate the management of the state's
    coastal resources by the various agencies and/or local governments with specified responsibilities
    under the state's coastal management program, irrespective of whether such entities receive �306
    funds; (2) make periodic reports to OCRM, the governor, or the state legislature, as appropriate,
    regarding the performance of all agencies involved in the program; and (3) present evidence of
    adherence to the management program or justification for deviation as part of the review of state
    performance required by �312 of the CZMA.

           The Texas Legislature designated the GLO both as the lead agency to coordinate the
    development of the TCMP, in cooperation with other state agencies having responsibilities
    relating to coastal matters (TEX. NAT. RES. CODE ANN. �33.052), and as the staff of the
    Coastal Coordination Council (TEX. NAT. RES. CODE ANN. �33.204). Governor George W.
    Bush designated the GLO as the lead agency for administration of grants under the CZMA in his
    letter of October 19, 1995, to the Under Secretary of Commerce. As such, the GLO will manage
    the daily operations of the program. Primary responsibility for management of the TCMP will
    reside within the GLO Coastal Division.

           Responsibilities of the Coastal Division include: (1) providing staff support to the
    Council (this includes the duties of the secretary to the Council), the Executive Committee, and
    the advisory committee; (2) coordinating the PAG's activities and serving on the various other
    committees, panels, and groups implementing the TCMP; (3) administering CZMA funds and
    pass-through grants and contracts; (4) coordinating and preparing the necessary documentation
    for program evaluation reviews under CZMA �312; (5) coordinating state and federal

    Texas Coastal Management Program Final EIS   Part II 3-5                         August 1996

    consistency reviews; (6) providing technical and policy assistance to state and local entities with
    responsibilities for implementing the TCMP; (7) coordinating ongoing public participation and
    education programs; (8) coordinating implementation of the erosion response plan, energy
    facility siting plan, and other special planning elements by the appropriate agencies; (9)
    providing technical and policy assistance and coordinating and compiling agencies' quarterly
    reports; and (10) preparing annual reports for the Texas Legislature.

    Administrative Cavacitv for Procram Imnlementation

           The GLO has the fiscal and legal capability to accept and administer grant funds. The
    agency's organizational structure includes a large program area devoted to fiscal affairs which
    comprises a purchasing division, a budget office, and an office of alternative funding. This area
    is experienced in dealing with purchasing (including purchases from minority and women's
    business enterprises), contracts, and pass-through grants. The GLO's Legal Services program
    area employs attorneys expert in contracts and fiscal affairs. The Coastal Division employs a
    grant specialist who oversees the day-to-day management of the division's grants, including
    reporting and billing.

           The GLO's administrative capability to oversee and administer the TCMP also meets
    federal requirements. Texas Natural Resources Code ��33.054 and 33.204 authorize: (1) the
    commissioner of the GLO to review the management program periodically and, with concurrence
    of the Council, to amend it as new information or changed conditions may warrant; (2) the GLO
    to assist the Council in carrying out its duties; and (3) the GLO to draft, for Council approval,
    annual reports to be submitted to the legislature on a biannual basis analyzing the effectiveness
    of the TCMP and making recommendations for improving the TCMP.

           The Coastal Division serves as the coastal policy, technical, and administrative staff to
    the chairman of the Council (commissioner of the GLO), as well as to the Council. The Coastal
    Division currently has 17 policy, technical, and administrative staff members with expertise in
    coordinating intergovernmental management programs, grant and contract management, program
    administration, public participation, land use planning, geographic information systems, wetlands
    management, coastal physical processes, navigation planning, living resources management,
    natural resource damage assessment, and water quality. Other divisions within the GLO have
    expertise in asset management, including surveying, land sales and leasing, energy resources
    management, oil spill prevention and response, and environmental law.

    4. Networked State Aaencies and Subdivisions Resnonsible for Imnlementation

           The primary responsibility of the state agencies and subdivisions that are subject to the
    provisions of the TCMP is to ensure that proposed actions listed in 31 TAC Chapter 505 that
    may adversely affect coastal natural resource areas (CNRAs) are consistent with the goals and
    policies of the TCMP. The agencies and subdivisions will do this through the exercise of their
    statutory authorities. Chapter Four summarizes the scope of each agency's regulatory authority
    by providing the following information: a description of each listed action; the land and water
    uses that are managed under each listed action; the agency's authority to issue variances;
    monitoring and enforcement requirements; and the agency's authority to regulate or condition the
    action to satisfy TCMP policies.

    Texas Coastal Management Program Final EIS    Part II 3-6                          August 1996

              B. Cominijance Monitoring

               1. Coastal Coordination Council

                      It is a responsibility of the Council to monitor the actions of the state and federal agencies
              and state subdivisions subject to the TCMP to ensure their continued compliance with the TCMP
              goals and policies. The Council's compliance monitoring will include monitoring decisions
              below state consistency review thresholds and monitoring agency enforcement of authorities.
              The Council will monitor all actions subject to consistency review, including authorizations,
              development projects, and rule changes.

               Monitoring Mechanisms and Procedures

                      The agencies undertaking or authorizing actions subject to the TCMiP will be responsible
              for monitoring their permits, licenses, development projects, etc. Specific descriptions of line
              agencies' statutory authority to monitor permits and licenses they issue or their development
              projects are included later in this chapter and in Chapter Four.

                      The Coastal Coordination Act requires the GLO, in coordination with the networked
              agencies and subdivisions, to prepare an annual report on the effectiveness of the TCMP. The
              Council approves the final report. The Council will monitor long-term compliance with the
              TCMP goals and policies through the annual report. The Council will use the annual report to
              monitor the consistency of agency and subdivision actions taken over the previous year to
              determine the effectiveness of the goals and policies and consistency review processes. Any
              recommendations made by the Council under TEX. NAT. RES. CODE ANN. �33.207(1) to an
              agency or subdivision will also be included in the report to encourage agencies or subdivisions to
              carry out their functions in compliance with the goals and policies. On or before January I15 of
              each odd-numbered year the GLO will send the previous two annual reports to the state
              legislature.

                      The report will, in part, be a compilation of the reports agencies must submit quarterly to
              the Council under �505.30(e) of the Council's rules. These reports will provide the information
              necessary for the Council to evaluate the line agencies' actions. The report will also include
              information and recommendations from the advisory committee and from public comment on the
              report.

                      The report will include information such as summaries of the results of the preliminary
              review and permitting processes, the number of actions subject to the TCMP taken by agencies
              (including rulemaking actions), the number of rulemaking actions submitted to the Council for
              certification, the number of rulemaking actions denied certification by the Council, any Notice of
              Program Deficiency issued by the Council and the agency's corrective response to the notice, the
              number of actions found by an agency to have no direct and significant adverse effect on
              CNRAs, the number of actions in which consistency was at issue, the number of actions
              qualifying for review by the Council, the number of actions referred to the Council, the number
    S       ~ ~~of actions protested by the Council and the outcome, and information on agency monitoring,
              compliance, and enforcement measures, such as the extent of any followup monitoring of

              Texas Coastal Management Program Final EIS    Part 11 3-7                         August 1996

    authorized activities, the number of cases where the agency determined there was
    noncompliance, the number and type of enforcement actions and their outcome, etc.

           The annual report will also provide status and trend reviews of CNRAs, any updates of
    CNRA inventories, an attempt to analyze cumulative and secondary effects of activities on
    CNRAs, summarize new research relevant to the TCMP, describe issues raised and
    recommendations made by the advisory committee, summarize issues raised by the public,
    recommend actions the Council may take to improve the TCMP, and recommend statutory
    changes needed to make more effective and efficient use of public funds and provide for more
    effective and efficient management of CNRAs, including recommendations on methods to
    simplify government procedures (TEX. NAT. RES. CODE ANN. �33.207(2)).

           In addition to its direct monitoring, the Council will coordinate with the monitoring
    programs of the Galveston Bay Estuary Program (GBEP), formerly the Galveston Bay National
    Estuary Program, and the Corpus Christi Bay National Estuary Program (CCBNEP). Linking
    the monitoring programs of the TCMP and these programs is important because the majority of
    activities along the Texas coast occur in the heavily industrialized and densely populated
    counties surrounding Galveston and Corpus Christi bays. The Council's member agencies are
    participating in the CCBNEP and will work to ensure that a sound and workable monitoring
    program is developed for the CCBNEP study area.

           The GBEP's Galveston Bay Plan includes a chapter on the Galveston Bay regional
    monitoring program. While this program concentrates on monitoring changes in the health of the
    bay ecosystem (e.g., overall pollutant loadings to the bay, bay ambient conditions, overall
    ecological productivity and diversity of the bay), the health of the bay will be a good indicator of
    the general success of the TCMP goals and policies since the goals and policies target avoidance
    and minimization of adverse effects on CNRAs.

           The Council will also improve its compliance monitoring with the aid of the public. The
    advisory committee may also help the council identify compliance problems. The committee
    will be valuable in this way because its members live and work on the coast and have a greater
    knowledge of daily activities.

    2. Texas General Land Office

           The monitoring responsibilities of the GLO, as the agency administering the TCMP,
    primarily include tasks that support the Council's monitoring efforts. The GLO's role is that of
    reporter, ensuring that all monitoring information received by the Council is recorded, analyzed,
    and presented to the appropriate parties. GLO staff will also coordinate the state and federal
    consistency review processes and maintain and update the CNRA inventory in the Geographic
    Information System (GIS).

     a. Monitoring Mechanisms and Procedures

           The GLO will compile agencies' quarterly reports, draft the annual report, and submit it
    to the Council for approval. GLO staff will also coordinate preliminary reviews, permitting
    assistance, and state and federal consistency reviews.

    Texas Coastal Management Program Final EIS    Part II 3-8                         August 1996

      b. Administrative Monitorinc Canacitv

           The GLO has 17 staff members in the Coastal Division with expertise in coastal issues.
    Two staff members work on the development and upkeep of the TCMP GIS. Eight Coastal
    Division staff members with expertise in coastal policy and technical issues will draft the annual
    reports and provide the initial analysis needed for the Council to review and approve them.

    3. Networked State Agencies and Subdivisions Resnonsible for Monitoring

           The networked state agencies will retain the responsibility for monitoring permitted or
    authorized actions for compliance with permit conditions and with the goals and policies of the
    TCMP. The agencies will continue to use mechanisms such as site visits, self-reporting, citizen
    complaints, and citizen monitoring in their compliance monitoring programs. Agencies' monitoring
    authorities are included in the information provided in Chapter Four.

    C.     Enforcement

           The Coastal Coordination Act, the TCMP rules, the Texas Administrative Procedure Act
    (APA), and the enabling statutes of the networked agencies establish three enforcement techniques.

      (1) The networked agencies and subdivisions can take administrative action against private
           parties to enforce the existing authorities that are linked together into the TCMP. For
           example, permit conditions necessary to achieve TCMP consistency can be enforced through
           all means available to networked agencies. These existing enforcement powers typically
           include assessment of administrative penalties and fines or revocation of the agency
           authorization or approval. If administrative action does not achieve compliance, the agency
           or subdivision can pursue civil or criminal litigation through referral of the matter to the
           attorney general.

      (2) The Council can administratively review agency and subdivision consistency determinations.
           If the Council disagrees with an agency's or subdivision's determination and the agency or
           subdivision does not correct the problem, the Council can pursue litigation through referral
           of the matter to the attorney general.

      (3) Third parties (citizens, agencies, or local governments) can administratively challenge an
           agency consistency determination. For example, a party can challenge agency consistency
           determinations in a contested case hearing before an agency. Third parties can also seek
           judicial review of agency/subdivision consistency determinations, as provided by law.

    1. Coastal Coordination Council

           The Council is responsible for enforcing compliance with the Coastal Coordination Act. The
    Act authorizes the Council to enforce the statute against state agencies and political subdivisions,
    which are the entities whose actions are governed by the statute.

    Texas Coastal Management Program Final EIS    Part II 3-9                           August 1996

    Enforcement Mechanisms and Procedures

           The Coastal Coordination Act provides the statutory basis for the Council's enforcement of0
    the TCMP goals and policies. As defined in the TCMP rules and articulated in �33.206(b) of the
    Texas Natural Resources Code, compliance with the TCMP goals and policies is mandatory for
    actions subject to the program. If the Council finds that a proposed action is inconsistent with the
    TCMP goals and policies, it must protest the proposed action to the agency or subdivision. When
    protesting a proposed action, the Council must issue a report of findings to the agency or subdivision
    authorizing the action. If the agency or subdivision does not modify the proposed action to make
    it consistent with the TCMP, the Council must refer the matter to the attorney general for issuance
    of an opinion and possibly litigation. Even after suit is filed, the Council may still enter into a
    settlement agreement with the agency or subdivision with regard to the proposed action. If a suit has
    been filed by the attorney general, the attorney general must be a party to the settlement.

    2. Attorney General

           The attorney general has the authority, under the Coastal Coordination Act and APA, to
    enforce the decisions of the Council against agencies and subdivisions. The attorney general must
    file suit in a district court of Travis County if the attorney general finds that the proposed action is
    inconsistent and the agency or subdivision fails to implement the Council's recommendations. In
    determining whether to sue, the attorney general must consider the Council's findings and
    recommendations and the agency's response to the recommendations.

           The attorney general's obligation to undertake enforcement action is clear and mandatory.
    The language of the Coastal Coordination Act requires the attorney general to seek enforcement
    through the courts unless a settlement agreement is reached.

    3. Texas General Land Office

           As the lead entity for administering the TCMP, the GLO has a role supporting the Council
    but no direct responsibility for enforcing the Coastal Coordination Act. The GLO will act as
    administrative, technical, and legal support for the Council when the Council refers, reviews,
    protests, or reports to a state agency or subdivision on a proposed action, when it requests an opinion
    from the attorney general, or when it enters into negotiations with the agency or subdivision. The
    GLO will also provide the attorney generalts office with any information needed to issue an opinion
    or bring suit.

    4. Networked State Agencies and Subdivisions Resnonsible for Enforcement

           The networked state agencies and subdivisions with jurisdiction over a proposed action are
    responsible for enforcing the provisions of the TCMP. State agencies have long had the authority
    to ask the attorney general to initiate enforcement action against a private party for violation of the
    terms or conditions of a permit. All agencies are authorized to enforce the permits or other
    authorizations they issue. Conditions included in a permit or authorization to ensure consistency
    with the TCMP goals and policies would likewise be enforceable against private parties through

    established agency enforcement proceedings.

    Texas Coastal Management Program Final EIS   Part II 3-10                          August 1996

                      In 1991, the Texas Legislature adopted far-reaching amendments to the Texas Water Code,
               the Solid Waste Disposal Act, and the Texas Clean Air Act providing for criminal sanctions for
    is ~~~violations of these statutes. In addition, the attorney general can seek monetary civil penalties and
               appropriate injunctive relief under these and other statutes networked under the TCMIP.

                      In addition to enforcing permits and authorizations directly or indirectly through the attorney
               general, state agencies also have procedures authorized by the APA or the agency's enabling
               legislation which allow the agency's consistency determination to be challenged by an aggrieved
               party in a contested case before the agency and ultimately in a court of law. The APA provides an
               independent basis for enforcement of the TCMP goals and policies by aggrieved parties by giving
               them the right to judicially challenge an agency's final decision.

                      Details of authorities to enforce the conditions of permits and authorizations subject to the
               TCMP can be found in Chapters Four and Five.

               D.     Local Government Involvement

                      Several program features ensure effective communication between the Council and local
               governments with the goal of integrating local governments into management of coastal natural
               resources. Local governments will be notified of relevant TCMP decisions, including those which
               may conflict with local land use plans or zoning ordinances. First, the Council includes as a full
               voting member a local government representative. This individual is responsible for ensuring that
               the interests of local governments are brought before the Council. This representative will also assist
               in communicating Council decisions to all local governments.

                      Second, an additional local government representative will be added to the Council as a non-
               voting member when the Council takes up any matter on review. By statute, this non-voting member
               must be from the jurisdiction affected by the matter before the Council. Thus, Council decisions will
               be directly communicated to the affected local government.

                      Third, the Council will establish a permanent advisory committee to ensure effective
               communication with all local interests, particularly local governments with land use authority.

               Texas Coastal Management Program Final EIS   Part 11 3-11                          August 1996

                                                     CHAPTER FOUR.

                                           PROGRAM GOALS AND POLICIES

               A. Introduction

                       The statutory authorities and rules of networked agencies and subdivisions set standards
               by which "enforceable" administrative actions are taken to approve, with or without conditions,
               or disapprove activities that may adversely affect coastal natural resource areas (CNRAs). To
               create consistency among these many agencies and subdivisions, the Coastal Coordination Act
               requires these agencies and subdivisions to comply with a uniform set of coastal goals and
               policies when taking these actions. The TCWvI goals and policies reflect the state's priorities in
               balancing economic development with resource protection and provide consistent guidelines for
               coordinated management of the coast. The policies do not impose or create any requirement
               which is beyond the existing legal authority of any agency or local government, nor may they be
               applied in a manner that would result in the taking, damage, or destruction of property without
               adequate compensation.

                      It is a role of the Coastal Coordination Council (Council) to ensure that the proposed
               actions of the agencies and subdivisions are consistent with the goals and policies in this chapter.
               Upon approval of the TCMP under the federal Coastal Zone Management Act, the Council will
               ensure that federal actions, activities, and Outer Continental Shelf plans are also consistent with
               these goals and policies. The procedures for consistency review are found in 31 TAC Chapters
               505 and 506 and described in Chapter Five of this document.

                      The first part of this chapter states the goals of the TCMP that guide the interpretation
               and implementation of the program (31 TAC �501.12). The second part lists all CNRAs which
               the policies are designed to protect. The third part lists the 21 policy categories of the TCMP and
               identifies the related state agency actions, the uses managed by the actions and policies, and the
               scope of authority of state agencies to manage the uses. This part of the chapter also describes
               the "Policy for Major Actions" and the "Administrative Policies," which provide guidance to
               agencies and subdivisions making administrative decisions (31 TAC ��501.13 and 501.15).

                      The final part of this chapter, "Advisory Policies," describes those policies that make the
               TCMP a comprehensive program that serves as a planning tool. Advisory policies offer
               recommendations for future actions or programs and promote nonregulatory aspects of coastal
               management such as planning and acquisition. Additionally, they establish preferences for the
               siting and operation of certain activities and facilities.

                      Advisory policies are written to help foster innovative ways of responding to coastal
               management issues and resource protection concerns. Advisory policies are not enforceable;
               however, their inclusion in the TCMP document allows federal Coastal Zone Management
               (CZM) funds to be used by eligible entities.

                      This chapter is explanatory in nature; any legal interpretations should be based on the
    .         ~~~rules adopted by the Council under 31 TAC Chapter 501.

               Texas Coastal Management Program Final ETS    Part 11 4-1                           August 1996

    B. ICMP Goals

    The goals of the TCMP are:0

       1. to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and
           values of CNRAs;

      2. to ensure sound management of all coastal resources by allowing for compatible
           economic development and multiple human uses of the coastal zone;

      3. to minimize loss of human life and property due to the impairment and loss of protective
           features of CNRAs;

      4. to ensure and enhance planned public access to and enjoyment of the coastal zone in a
           manner that is compatible with private property rights and other uses of the coastal zone;

      5. to balance the benefits from economic development and multiple human uses of the
           coastal zone, the benefits from protecting, preserving, restoring, and enhancing CNRAs,
           the benefits from minimizing loss of human life and property, and the benefits from
           public access to and enjoyment of the coastal zone;

      6. to coordinate agency and subdivision decision-making affecting CNRAs by establishing
           clear, objective policies for the management of CNRAs; i

      7. to make agency and subdivision decision-making affecting CNRAs efficient by
           identifying and addressing duplication and conflicts among local, state, and federal
           regulatory and other programs for the management of CNRAs.

      8. to make agency and subdivision decision-making affecting CNRAs more effective by
           employing the most comprehensive, accurate, and reliable information and scientific data
           available and by developing, distributing for public comment, and maintaining a
           coordinated, publicly accessible geographic information system of maps of the coastal
           zone and CNRAs at the earliest possible date;

      9. to make coastal management processes visible, coherent, accessible, and accountable to
           the people of Texas by providing for public participation in the ongoing development and
           implementation of the Texas CMP; and

      10. to educate the public about the principal coastal problems of state concern and technology
           available for the protection and improved management of CNRAs.

    Texas Coastal Management Program Final EIS    Part 19 4-2                          August 1996

              C. Coastal Natural Resource Areas

                     To address the issues of concern, and in response to the requirements of the Coastal
              Coordination Act, the Coastal Coordination Council has designated the areas listed below as
              coastal natural resource areas requiring special management under the Coastal Management
              Program. Legal definitions can be found in Appendix B - Rules for TCMP Goals and Policies.

               * Waters of the open Gulf of Mexico are waters seaward of coastal barrier islands and bays
                     and estuaries and extending to the territorial limits of the state (i.e., approximately 10.36
                     mifles offshore). Waters in the open Gulf of Mexico serve as habitat for numerous
                     commercial and recreational fishery species.

               �    Waters under tidal influence are those waters in the state that are contained behind coastal
                     barrier islands and within bays and estuaries and rivers to the inland extent of tidal
                     influence. Together, waters in the open Gulf of Mexico and waters under tidal influence
                     are considered "coastal waters." Waters under tidal influence provide important aquatic
                     habitat, serve as prime recreation areas, and provide some domestic water supply.

                  * Submerged lands are lands underlying waters under tidal influence or waters of the open
                     Gulf of Mexico that are owned by an agency or subdivision of the state, or by a person
                     other than the state. The sediments of coastal public submerged lands are habitat for a
                     diverse benthic, or bottom-dwelling, animal community.

               *    Coastal wetlands are those areas having a predominance of hydric soils that are inundated
    0            ~     ~~~~or saturated by surface water or groundwater at a frequency and duration sufficient to
                     support, and that under normal circumstances support, the growth and regeneration of
                    hydrophytic vegetation, as defined in the Texas Water Code, Chapter I11, Subchapter J,
                    and that lie within the Coastal Facility Designation Line and within one mile from the
                    mean high tide line of tidal river and stream segments to the inland extent of tidal
                    influence, except for the Trinity and Neches rivers. On the Trinity River, coastal
                    wetlands are those wetlands occurring within the area located between the mean high tide
                    line on the western shoreline of the river and FM Road 565 and FM Road 1409, and
                    wetlands within the area located between the mean high tide line on the eastern shoreline
                    of that portion of the river and FM Road 563. On the Neches River, coastal wetlands are
                    those wetlands occurring within one mile of the mean high tide line on the western
                    shoreline of the river, and wetlands within the area located between the mean high tide
                    line on the eastern shoreline of that portion of the river and FM Road 105. Coastal
                    wetlands provide wildlife habitat, convey and store floodwaters, trap sediment, and
                    reduce water pollution.

               *    Submerged aquatic vegetation is rooted aquatic vegetation growing in permanently
                    inundated areas in estuarine and marine systems. Submerged aquatic vegetation provides
                    valuable habitat for numerous commercial and recreational fishery organisms and for
                    wildlife.

               *    Tidal sand and mud flats are silt, clay, or sand substrates, unvegetated or vegetated by
                    algal mats, that occur in the intertidal zone and that are regularly or intermittently

             Texas Coastal Management Program Final EIS    Part II 4-3                         August 1996

           exposed and flooded by tides. Mud flats and sand flats are the feeding grounds for
           coastal shorebirds, fish, and invertebrates. g

        0 Oyster reefs are natural or artificial formations in intertidal or subtidal areas that are
           composed of oyster shell, live oysters, and other organisms and that are discrete,
           contiguous, and clearly distinguishable from scattered oysters. Oyster reefs not only
           support the oyster fishery but also serve as habitat, forage ground, or hiding places for
           numerous estuarine species.

        * Hard substrate reefs are naturally occurring hard substrate formations, such as rock
           outcrops or serpulid worm reefs (living or dead), in intertidal or subtidal areas that are
           discrete and contiguous. Hard substrate reefs provide habitat for numerous invertebrates.

        * Coastal barriers are undeveloped areas on barrier islands and peninsulas or otherwise
           protected areas, as mapped by the U.S. Fish and Wildlife Service (i.e., Coastal Barrier
           Resource System Units). Coastal barriers are subject to wave, tidal, and wind energy from
           the Gulf of Mexico. Barrier islands are Galveston, Matagorda, San Jose, Mustang, and
           North and South Padre islands. Coastal barriers act as important buffers against coastal
           storms and protect coastal natural resource areas and the mainland from erosion, flooding,
           and destruction.

      *    Coastal shore areas are all areas within I100 feet landward of the high water mark on
           submerged land. Shore areas function as buffers, protecting upland habitats from erosion
           and storm damage and adjacent marshes and waterways from water quality degradation.
           Designation of coastal shore areas as a CNRA is exclusively intended to address erosion
           impacts within coastal shore areas.

      *    Gulf beaches are beaches bordering on the Gulf of Mexico that extend inland from the
           line of mean low tide to the natural line of vegetation bordering on the seaward shore of
           the Gulf of Mexico, or such larger contiguous area to which the public has acquired a
           right of use or easement to or over by prescription, dedication, or estoppel, or has retained
           a right by virtue of continuous right in the public since time immemorial. Texas beaches
           serve as important recreational areas and provide protection for landward structures
           during storms.

      *    Critical dune areas are protected sand dune complexes on the Gulf shoreline within
           1,000 feet of mean high tide. Sand dunes help prevent loss of life and property by
           absorbing the impact of storm surge and high waves and by stopping or delaying
           intrusion of water inland.

      *    Special hazard areas are areas designated by the administrator of the Federal Insurance
           Administration under the National Flood Insurance Act as having special flood, mudslide
           (i.e., mudflow) and/or flood-related erosion hazards, and shown on a Flood Hazard
           Boundary Map or Flood Insurance Rate Map as Zone A, AO, Al -30, AE, A99, AH, VO,
           V 1 -3 0, VE, V, M, or E. These areas are important because they receive the brunt of
           storms, act as natural water-detention systems, and are natural filters for upland runoff.

    Texas Coastal Management Program Final EIS    Part 11 4-4                        August 1996

                *    Critical erosion areas are those Gulf and bay shorelines that are undergoing erosion and
                     are designated by the commissioner of the GLO under Texas Natural Resources Code,
    0              ~    ~~~~�33.601(b). Critical erosion areas require comprehensive management because loss of
                     life and property can result if development occurs in these areas.

                *    Coastal historic areas are sites in the National Register of Historic Places on public land
                     and state archaeological landmarks that are identified by the Texas Historical
                     Commission as being coastal in character. Coastal historic areas provide important
                     information about the coastal history and culture of the state.

               *    Coastal preserves are any lands owned by the state that are designated and used as parks,
                     recreation areas, scientific areas, wildlife management areas, wildlife refuges, or historic
                     sites and that are designated by the Texas Parks and Wildlife Department as being coastal
                     in character. These areas are valued for the recreational opportunities they afford and for
                     the diverse habitats they comprise.

             Texas Coastal Management Program Final ETS    Part II 4-5                            August 1996

    D. Enforceable Policies of the TCMP

    POLICY CATEGORY 1: CONSTRUCTION OF ELECTRIC GENERATING AND
                                  TRANSMISSION FACILITIES

    State Acencv Action and Manaced Uses

    PUC - Certificate of Convenience and Necessity
    (TEX. NAT. RES. CODE ANN. �33.2053(b))

    Construction of new electric generating units and new electric transmission lines; i.e., lines used
    for bulk transmission of electricity and all lines operating at 60,000 volts or more (TEX. REV.
    CIV. STAT. ANN. art. 1446c, �50, and 16 TAC �23.3 1). Construction of new electric high
    voltage switching stations or new electric substations within a utility's certificated area do not
    require a certificate of convenience and necessity and therefore are not a use managed by the
    following policies (16 TAC �23.3 1).

    Policies

    The Public Utility Commission shall comply with the policies in this category when issuing
    certificates of convenience and necessity and adopting rules under the Public Utility Regulatory
    Act (TEX. REV. CIV. STAT. ANN. art. 1446c, governing construction of electric generating
    facilities, electric transmission lines, and associated facilities in the coastal zone).

    Construction of electric generating facilities and electric transmission lines in the coastal zone
    shall comply with the policies in this category.

     A.   New electric generating facilities shall, where practicable, be located at previously
           developed sites. New electric generating facilities at undeveloped sites shall be located so
           that future expansion will avoid construction in critical areas, Gulf beaches, critical
           dunes, and washovers to the greatest extent practicable. To the extent applicable to the
           public beach, these policies are supplemental to any further restrictions or requirements
           relating to the beach access and use rights of the public.

      B.   Electric generating facilities using once-through cooling systems shall be located and
           designed to have the least adverse effects practicable, including impingement or
           entrainment of estuarine organisms.

     C.   Electric generating facilities shall be constructed at sites selected to have the least adverse
           effects practicable on recreational uses of CNRAs and on areas used for spawning,
           nesting, and seasonal migrations of terrestrial and aquatic fish and wildlife species.

     D.   Electric transmission lines to or on Coastal Barrier Resource System Units and Otherwise
           Protected Areas designated on maps dated October 24, 1990, under the Coastal Barrier
           Resources Act, 16 U.S.C.A. �3503(a) on coastal barriers shall:

    Texas Coastal Management Program Final EIS    Part II 4-6                             August 1996

                   be located, where practicable, in existing rights-of-way or previously disturbed
                   areas if necessary to avoid or minimize adverse effects; and

            ii.    be located at sites at which future expansion shall avoid construction in critical
                   areas, Gulf beaches, critical dunes, and washovers to the greatest extent
                   practicable.

    Manacement Authority and Administration

    The Public Utility Commission of Texas (PUC) regulates public utilities, including the
    construction of electric generating facilities, electric transmission lines, and associated facilities
    in the coastal zone. Under the Public Utility Regulatory Act (TEX. REV. CIV. STAT. ANN. art.
    1446c), the PUC has the authority to establish a comprehensive regulatory system to regulate
    public utilities; to assure rates, operations, and services; and to "do all things ... necessary and
    convenient to the exercise of these powers and jurisdiction."

    Before a utility can construct a transmission line or power plant, it must apply for a "Certificate
    of Convenience and Necessity" (3 TAC Ch. 21), which must require compliance with the above
    policies (31 TAC � 501.14(a)). The utility is required to notify and coordinate with the
    appropriate state and federal agencies which enforce environmental requirements. The PUC also
    requires evidence from the utility that all requirements and regulations of local, state, and federal
    agencies have been met, including obtaining required permits and authorizations. These
    requirements of the PUC will ensure that other TCMP policies applicable to electric generating
    and transmission facilities are met.

    Exemptions

    Certificate of Convenience and Necessity. A certificate of convenience and necessity is not
    required for a new electric high voltage switching station or a new electric substation within the
    utility's certificated area (16 TAC �23.3 1).

    Variances

    Certificate of Convenience and Necessity. None.

    Monitoring and Enforcement

    Certificate of Convenience and Necessity. The PUC does not independently monitor or
    enforce compliance with environmental and resource protection regulations.

    Aaencv's Authority to Reeulate or Condition Listed Action to Satisfy TCMP Policy

    Certificate of Convenience and Necessity. Certificates of convenience and necessity must be
    granted on a nondiscriminatory basis after consideration by the commission of the adequacy of
    existing service, the effect of the granting of the certificate on the recipient of the certificate and
    on any public utility of the same kind already serving the proximate area, and on such factors as
    community values, recreational and park areas, historical and aesthetic values, environmental

    Texas Coastal Management Program Final EIS    Part II 4-7                            August 1996

    integrity, and the probable improvement of service or lowering of cost to consumers in the area
    resulting from the granting of such certificate (TEX. REV. CIV. STAT. ANN. art. 1446c,
    �54(c)).

    Texas Coastal Management Program Final EIS    Part II 4-8                            August 1996

    POLICY CATEGORY 2: CONSTRUCTION, OPERATION, AND MAINTENANCE OF
                                OIL AND GAS EXPLORATION AND PRODUCTION
                                FACILITIES

    State Avencv Action and Managed Uses

    SLB - Mineral Lease Plan of Operations
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(1))

    Drilling activities; alterations to the natural landscape; surface and bottom-hole location of the
    initial well; location of additional planned wells and production facilities; location of shipping
    fairways and anchorage areas; anticipated routes for pipelines; and location of routes of dredging
    required for all production-related activities, such as pipelines, well-drilling, and construction of
    facilities.

    GLO - Geophysical or Geochemical Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(2)

    Geophysical and geochemical exploration. Geophysical exploration means a survey or
    investigation conducted to discover or locate minerals or oil and gas prospects using magnetic,
    gravity, seismic, and/or electrical techniques. Geochemical exploration means a survey or
    investigation conducted to discover or locate minerals or oil and gas prospects using techniques
    involving soil sampling and analysis (TEX. NAT. RES. CODE ANN. �52.321 and �53.161).

    GLO - Miscellaneous Easement
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(4))

    Construction and placement of telephone, telegraph, electric transmission, and power lines; oil
    pipelines; gas pipelines and sulphur pipelines; other electric lines and pipelines of any nature;
    irrigation canals, laterals, and water pipelines; roads; and any other purpose the commissioner
    considers to be in the best interests of the state (TEX. NAT. RES. CODE ANN. �51.291).
    Construction and placement of electric substations, pumping stations, loading racks, and tank
    farms on state land other than land owned by the University of Texas System (TEX. NAT. RES.
    CODE ANN. �51.292).

    GLO - Surface Lease
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(6))

    Unsold public school land and asylum land may be leased for agricultural, grazing, or
    commercial purposes (TEX. NAT. RES. CODE ANN. �51.121).

    SLB - Coastal Easement
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(3))

    Dredging of basins and channels on state-owned submerged land; construction of piers, docks,
    marinas, bulkheads, seawalls, and other waterfront structures on state-owned submerged land.
    The School Land Board may also grant easement rights to the owner of adjacent littoral property

    Texas Coastal Management Program Final EIS    Part II 4-9                           August 1996

    authorizing the placement or location of a structure on coastal public land for purposes connected
    with the ownership of littoral property (TEX. NAT. RES. CODE ANN. �33.1 11).

    Policies

    The GLO and SLB shall comply with the policies in this category when approving oil, gas, and
    other mineral lease plans of operations and granting surface leases, easements, and permits and
    adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 5 1-53, governing
    oil and gas exploration and production on submerged lands.

      I1.   Oil and gas exploration and production on submerged lands shall comply with the
           policies in this category.

           A.     In or near critical areas, facilities shall be located and operated and geophysical
                   and other operations shall be located and conducted in such a manner as to avoid
                   and otherwise minimize adverse effects, including those from the disposal of solid
                   waste and disturbance resulting from the operation of vessels and wheeled or
                   tracked vehicles, whether on areas under lease, easement, or permit or on or
                   across access routes thereto. Where practicable, buffer zones for critical areas
                   shall be established and directional drilling or other methods to avoid disturbance,
                   such as pooling or unitization, shall be employed.

           B.     Lessees, easement holders, and permittees shall construct facilities in a manner
                   that avoids impoundment or draining of coastal wetlands, if practicable, and shall
                   mitigate any adverse effects on coastal wetlands impounded or drained in
                   accordance with the sequencing requirements in 31 TAC �50 1. 14(h) (relating to
                   Development in Critical Areas).

           C.     Upon completion or cessation of operations, lessees, easement holders, and
                  permittees shall remove facilities and restore any significantly degraded areas to
                   pre-project conditions as closely as practicable, unless facilities can be used for
                   maintenance or enhancement of CNRAs or unless restoration activities would
                   further degrade CNRAs.

     2.   To the extent applicable to the public beach, these policies are supplemental to any
           further restrictions or requirements relating to the beach access and use rights of the
           public.

    Manaeement Authority and Administration

    The GLO and SLB are the management entities for oil and gas exploration and production on
    state submerged lands under the authority of chapters 32, 33, and 51-53 of the Texas Natural
    Resources Code. The GLO and SLB serve proprietary rather than regulatory roles and determine
    whether a proposed use of state land is appropriate. Standards and procedures for granting
    permits and leases for geophysical and geochemical exploration for and production of oil and gas
    on state-owned land are established in 31 TAC Chapter 9. The rules set out provisions to prevent
    damage to or pollution of all lands and waters, including restrictions on the release of solid

    Texas Coastal Management Program Final EIS   Part 11 4- 10                         August 1996

    wastes; restrictions on the use of vehicles to minimize impacts to submerged lands and marshes;
    provisions for the protection of natural resources, including aquatic life and wildlife, from
    seismic and production operations; and provisions for remediation of any surface damage from
    operations.

    Oil and gas leases may be issued for islands, saltwater lakes, bays, inlets, and marshes owned by
    the state within tidewater limits; rivers and channels owned by the state; the portion of the Gulf
    of Mexico within the jurisdiction of the state; all unsold surveyed and unsurveyed public school
    land; and all land sold with a reservation of minerals to the state under TEX. NAT. RES. CODE
    ANN. �51.054 in which the state has retained leasing rights.

    A mineral lease plan of operations is not currently a condition of the lease application process.
    Applications for mineral leases may contain any information the commissioner requires (TEX.
    NAT. RES. CODE ANN. �53.015).

    Under 31 TAC Chapter 155, coastal easements are issued to lessees for the dredging of channels
    to allow access to oil and gas exploration and production sites. The rules establish standards and
    criteria for the siting, design, and construction of dredged channels and dredged material disposal
    areas. Under 31 TAC Chapter 13, miscellaneous easements are granted for rights-of-way across
    public lands for oil and gas pipelines, and surface leases are granted for structures such as oil and
    gas platforms on state submerged lands.

    Exemptions

    Geophysical or Geochemical Permit. Holders of valid oil and gas leases are not required to
    have a permit (TEX. NAT. RES. CODE ANN. �52.322).

    Variances

    Mineral Lease Plan of Operations. Mineral lease plans are not currently a condition for
    obtaining a mineral lease.

    Monitorin, and Enforcement

    Geophysical or Geochemical Permit. A violation of the conditions or provisions of a
    geophysical or geochemical permit is a misdemeanor punishable by a fine of not less than $100
    nor more than $1,000 per day (TEX. NAT. RES. CODE ANN. �52.325). All operations are
    subject to inspection and monitoring by the commissioner or the commissioner's representatives
    at any time. Within 30 days of the expiration of the permit, the permittee must file with the
    commissioner a sworn "summary of activities" report (31 TAC �9.4(f)).

    Coastal Easement. Any construction or placement on coastal public land without first obtaining
    a coastal easement of a structure from the GLO is subject to a civil penalty of not more than $200
    (TEX. NAT. RES. CODE ANN. �33.112). Violations can also result in penalties of no more
    than $1,000 per day per violation, the removal of the structure, or the filing of a lien (TEX. NAT.
    RES. CODE ANN. �51.302).

    Texas Coastal Management Program Final EIS   Part II 4-11                          August 1996

    Miscellaneous Easement. Existing miscellaneous easements must be renewed periodically. No
    easements may be granted for a term longer than 10 years, but the commissioner may set any
    term deemed to be in the best interest of the state (TEX. NAT. RES. CODE �51.296). No person
    may undertake the activities described above on state-owned land without a miscellaneous
    easement from the commissioner or the board. A person without an easement is subject to a
    penalty of not more than $1,000 per day, the removal of the structure, or the filing of a lien
    (TEX. NAT. RES. CODE ANN. �51.302).

    Anenev's Authority to ReQulate or Condition Listed Action to Satisfy TCMP Policv

    Mineral Lease Plan of Operations. The commissioner may include in the lease any provision
    the commissioner considers necessary for protection of the interests of the state. TEX. NAT.
    RES. CODE ANN. �53.016(b).

    Geophysical or Geochemical Permit. Permits are required for all exploration on public school,
    land, which includes all land dedicated to the permanent free school fund and specifically
    includes land with a mineral classification in which the state has retained the oil and gas interest
    and areas within tidewater limits (TEX. NAT. RES. CODE ANN. �52.321). Except for a person
    who has a valid oil and gas lease on public school land, a person may not conduct geophysical
    and geochemical exploration without a permit (TEX. NAT. RES. CODE ANN. �52.322). The
    commissioner may make rules relating to geophysical or geochemical exploration, permits, or
    permittees the commissioner considers appropriate (TEX. NAT. RES. CODE ANN. �52.324 and
    �53.163).

    Miscellaneous Easement. The grant of a miscellaneous easement may contain any provisions
    that the commissioner considers necessary to protect the interests of the state and may be
    perpetual or for a term of years (TEX. NAT. RES. CODE ANN. �51.305).

    Texas Coastal Management Program Final EIS   Part H 4-12                          August 1996

    POLICY CATEGORY 3: DISCHARGES OF WASTEWATER AND DISPOSAL OF
                                 WASTE FROM OIL AND GAS EXPLORATION AND
                                 PRODUCTION ACTIVITIES

    State Aeencv Action and Managed Uses

    RRC - Waste Disposal or Storage Pit Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(c)(2))

    Maintenance or use of a pit for storage of oil field fluids or oil and gas wastes (16 TAC �3.8).

    RRC - Wastewater Discharge Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(c)(1))

    Disposal of wastewater generated in connection with activities associated with the exploration,
    development, and production of oil or gas or geothermal resources into coastal waters. Before a
    permit is issued, the Railroad Commission must determine that the discharge will not result in
    pollution or in a violation of Texas Water Quality Standards (16 TAC �3.8).

    Policies

      1.   Disposal of oil and gas waste in the coastal zone shall comply with the policies in this
           category.

           A.     No new commercial oil and gas waste disposal pits shall be located in any CNRA.

           B.     Oil and gas waste disposal pits shall be designed to prevent releases of pollutants
                  that adversely affect coastal waters or critical areas.

     2.   Discharge of oil and gas exploration and production wastewater in the coastal zone shall
           comply with the following policies.

           A.     All discharges shall comply with all provisions of surface water quality standards
                  established by the TNRCC under Policy Category 6.

           B.     To the greatest extent practicable, new wastewater outfalls shall be located where
                  the discharge will not adversely affect critical areas. Existing wastewater outfalls
                  that adversely affect critical areas shall be either discontinued or relocated so as
                  not to adversely affect critical areas within two years of the effective date of these
                  rules.

           C.     The RRC shall notify the TNRCC and the TPWD upon receipt of an application
                  for a new permit to discharge produced waters to waters under tidal influence. In
                  determining compliance with these policies, the RRC shall consider the effects of
                  salinity from the discharge.

    Texas Coastal Management Program Final EIS    Part II 4-13                            August 1996

    Management Authority and Administration

    Under the authority of Texas Natural Resources Code, Chapter 91, and Texas Water Code,                    0
    Chapter 26, the RRC regulates the management of oil and gas waste and wastewater discharges
    from exploration and production activities. The RRC must comply with the policies for the
    discharge of wastewater and disposal of waste from oil and gas exploration and production
    activities when issuing permits and adopting rules under these authorities.

    The RRC authorizes some oil and gas waste management practices by rule. For instance, low-
    chloride, water-based drilling fluids and the associated drill cuttings may be landfarmed on the
    lease where they were generated with the written permission of the surface owner. Drill cuttings
    and dewatered water-based drilling fluids may be disposed of by burial at the site where they
    were generated. Dewatered completion and workover wastes and basic sediment may be
    disposed of in on-site pits.

    A permit is required for oil and gas waste pits and disposal methods not specifically authorized
    by rule. For instance, emergency saltwater storage pits, gas plant evaporation/retention pits, and
    collecting pits must be permitted.

    RRC rules require that oil and gas waste disposal pits, whether authorized by rule or permit, be
    designed, constructed, and operated in a manner that will prevent pollution of surface and
    subsurface waters. Additional disposal practice requirements may be imposed by permit
    conditions. In most cases, RRC rules prohibit the discharge of oil and gas waste to surface
    waters without a permit. RRC rules do authorize the discharge of oil-free drill cuttings and
    drilling fluids into the Gulf of Mexico.

    Exempfions

    Waste Disposal or Storage Pit Permit. The authority granted to the commission does not
    include the authority to adopt and enforce rules and orders or issue permits regarding the
    collection, storage, handling, transportation, processing, or disposal of waste arising out of or
    incidental to activities associated with gasoline plants, natural gas or natural gas liquid
    processing plants, pressure maintenance plants, or repressurizing plants if that waste is a
    hazardous waste as defined by the administrator of the U.S. Environmental Protection Agency
    pursuant to the federal Solid Waste Disposal Act (TEX. NAT. RES. CODE ANN. �91.101). A
    person may, without a permit, maintain or use reserve pits, mud circulation pits,
    completion/workover pits, basic sediment pits, flare pits, fresh makeup water pits, fresh mining
    water pits, and water condensate pits on condition that only limited types of fluids or wastes are
    placed within such pits (16 TAC �3.8(d)(4)).

    Wastewater Discharge Permit. None.

    Variances

    Waste Disposal or Storage Pit Permit. No express provisions for variances are contained in 16
    TAC �3.8; however, emergency waste disposal and storage pit permit procedures are established
    in 16 TAC �3.8(d)(6)(F).

    Texas Coastal Management Program Final EIS   Part II 4-14                          August 1996

    Wastewater Discharge Permit. None.

    Monitoring and Enforcement

    Waste Disposal or Storage Pit Permit and Wastewater Discharge Permit. Members and
    employees of the commission, on proper identification, may enter public or private property to
    inspect and investigate conditions relating to the quality of water in the state (TEX. NAT. RES.
    CODE ANN. �91.1012). Violations may subject a person to administrative penalties of up to
    $10,000 per day for each violation as well as criminal penalties (TEX. NAT. RES. CODE ANN.
    �81.0531 and �91.002).

    Agency's Authority to Regulate or Condition Listed Action to Satisfy TCMP Policy

    Waste Disposal or Storage Pit Permit and Wastewater Discharge Permit. The RRC is
    required to adopt rules and issue permits as necessary to prevent pollution of surface and
    subsurface water related to oil and gas exploration and production activities (TEX. NAT. RES.
    CODE ANN. �91.101).

    Texas Coastal Management Program Final EIS   PartII 4-15                          August 1996

    POLICY CATEGORY 4:  CONSTRUCTION AND OPERATION OF SOLID WASTE
                                 TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    State Acenov Action and Manaced Uses

    TNRCC - Permit for Solid or Hazardous Waste Treatment, Storage, or Disposal
    (TEX. NAT. RES. CODE ANN. �33.2053(f)(3))

    Construction, operation, and maintenance of the solid waste facilities used to store, process, or
    dispose of solid waste (TEX. HEALTH & SAFETY CODE ANN. �361.061). Solid waste
    treatment, storage, and disposal facilities include hazardous waste storage or processing facilities,
    land treatment facilities, waste piles, storage surface impoundments, and landfills. These policies
    apply to both new facilities and areal expansion of existing facilities.

    Policies

    Construction and operation of solid waste facilities in the coastal zone shall comply with the
    policies in this category.

     A.   A landfill at which hazardous waste is received for a fee shall not be located in a critical
           area, a critical dune area, a critical erosion area, or the 100-year floodplain of a perennial
           stream delineated on a flood map adopted by the Federal Emergency Management
           Agency after September 1, 1985, as zone A1-99, VO, or VI-30. This policy shall not
           apply to any facility for which either an application or a notice of intent to file an
           application was filed with the TNRCC as of September 1, 1985.

     B.   Except as provided in paragraphs A and B of this policy category, a hazardous -waste
           landfill shall not be located in a special hazard area existing before site development
           except in an area with a flood depth of less than three feet. Any hazardous waste landfill
           within a special hazard area must be designed, constructed, operated, and maintained to
           prevent washout of any hazardous waste by a 100-year flood.

           i.     The areal expansion of a landfill in a special hazard area may be allowed if the
                  applicant demonstrates that the facility design will prevent the physical transport
                  of any hazardous waste by a 100-year flood event.

           ii.    A new commercial hazardous waste management facility landfill unit may not be
                  located in a special hazard area unless the applicant demonstrates that the facility
                  design will prevent the physical transport of any hazardous waste by a 100-year
                  flood.

     C.   Hazardous waste storage or processing facilities, land treatment facilities, waste piles, and
           storage surface impoundments shall not be located in special hazard areas unless they are
           designed, constructed, operated, and maintained to prevent washout of any hazardous
           waste by a 100-year flood.

    Texas Coastal Management Program Final EIS   Part II 4-16                           August 1996

                 D.   Hazardous waste land treatment facilities, waste piles, storage surface impoundments,
                       and landfills shall not be located within 1,000 feet of an area subject to active'coastal
     0              ~    ~~~~shoreline erosion, if the area is protected by a barrier island or peninsula, unless the
                       design, construction, and operational features of the facility will prevent adverse effects
                       resulting from storm surge and erosion or scouring by water. On coastal shorelines which
                       are subject to active shoreline erosion and which are unprotected by a barrier island or
                       peninsula, a separation distance from the shoreline to the facility must be at least 5,000
                       feet, unless the design, construction, and operational features of the facility will prevent
                       adverse effects resulting from storm surge and erosion or scouring by water.

                 E.   Hazardous waste storage or processing facilities, land treatment facilities, waste piles,
                       storage surface impoundments, and landfills shall not be located in coastal wetlands or in
                       any CNRA that is the critical habitat of an endangered species of plant or animal unless
                       the design, construction, and operation features of the facility will prevent adverse effects
                       on the critical habitat of the endangered species.

                 F.   Hazardous waste land treatment facilities, waste piles, storage surface impoundments,
                       and landfills shall not be located on coastal barrers.

                 G.   Hazardous waste landfills are prohibited if there is a practicable alternative to such a
                       landfill that is reasonably available to manage the types and classes of hazardous waste
                       which might be disposed of at the landfill.

                 H.   The TNRCC shall not issue a permit for a new hazardous waste management facility or
                       the areal expansion of an existing hazardous waste facility unless it finds that the
                       proposed site, when evaluated in light of proposed design, construction, and operational
                       features, reasonably minimizes possible contamination of coastal waters.

                 I.   New solid waste facilities and areal expansion of existing solid waste facilities shall be
                       sited, designed, constructed, and operated to prevent releases of pollutants that may
                       adversely affect CNRAs and, at a minimum, shall comply with standards established
                       under the Solid Waste Disposal Act (42 U.S.C.A. �6901 et seq.).

               Manaaernent Authority and Administration

               Under the authority of the Texas Solid Waste Disposal Act, which is codified in Texas Health
               and Safety Code, Chapter 361, the TNRCC implements a permitting program for solid waste
               disposal sites. The TNRCC must comply with the policies in this category when issuing permits
               and adopting rules governing the construction and operation of solid waste facilities in the
               coastal zone.

               Title 30 TAC Chapter 305 sets forth the standards and requirements for applications, permits,
               and TNRCC actions to carry out the responsibilities for management of all solid waste treatment,
               storage, and disposal activities.

    .          ~~~Title 30 TAC Chapter 3 35 establishes standards and enforcement provisions to implement the
               state hazardous waste program, which regulates, from the point of generation to ultimate

               Texas Coastal Management Piogram Final EIS    Part HI 4-17                           August 1996

    disposal, those wastes which have been identified as hazardous by the EPA in 40 CFR Part 261.
    Regulations include standards for the location of certain hazardous waste facilities, including
    certain prohibited locations such as wetlands, barrier islands, and peninsulas; land disposal of
    hazardous wastes; pollution prevention through hazardous waste source reduction and hazardous
    waste minimization; and hazardous waste closure, corrective actions, and remediation activities
    to provide risk reduction to levels protective of human health and the environment.

    Sludge use and disposal standards are set forth in 30 TAC Chapter 312. Rules for solid waste
    disposal facility permits and operations are set forth in 30 TAC Chapter 330. Discharge of
    pollutants or solid waste to water in the state is prohibited. Permits are required for solid waste
    disposal facilities, and facilities must follow strict state and federal siting, design, and operation
    standards. Facilities that process municipal solid waste, such as incinerators, are also regulated
    by the program.

    Exemptions

    Permit for Solid or Hazardous Waste Treatment, Storage, or Disposal. The commission
    may not require a permit for the collection, handling, storage, processing, and disposal of
    industrial solid waste that is disposed within the boundaries of a tract of land that is: (1) owned
    or otherwise effectively controlled by the owners or operators of the particular industrial plant,
    manufacturing plant, mining operation, or agricultural operation from which the waste results or
    is produced; and (2) located within 50 miles from the plant or operation that is the source of the
    industrial solid waste. The commission may, however, adopt rules to control the collection,
    handling, storage, processing, and disposal of the industrial solid waste to protect the property of
    others, public property and rights-of-way, groundwater, and other rights requiring protection
    (TEX. HEALTH & SAFETY CODE ANN. �361.090).

    Variances

    Permit for Solid or Hazardous Waste Treatment, Storage, or DisposaL There is no statutory
    provision expressly granting variance authority.

    Monitoring and Enforcement

    Permit for Solid or Hazardous Waste Treatment, Storage, or Disposal Agents or employees
    of the commission or local governments have the right to enter, at any reasonable time, public or
    private property to inspect and investigate conditions concerning solid waste management and
    control (TEX. HEALTH & SAFETY CODE ANN. �361.032). Persons violating the Solid
    Waste Disposal Act are subject to administrative penalties of $10,000 per day and civil penalties
    (TEX. HEALTH & SAFETY CODE ANN. �361.251 and �361.223).

    Avencv's Authoritv to Regulate or Condition Listed Action to Satisfy TCMP Policv

    Permit for Solid or Hazardous Waste Treatment, Storage, or Disposal The commission
    may amend, extend, or renew a permit it issues in accordance with reasonable procedures
    prescribed by the department or commission, as appropriate (TEX. HEALTH & SAFETY CODE
    ANN. �361.088).

    Texas Coastal Management Program Final EIS   Part II 4-18                           August 1996

                   POLICY CATEGORY 5:  PREVENTION, RESPONSE, AND REMEDIATION OF OIL
    Is SPILLS

                   State Agencv Action and Managed Uses

                   GLO - Rules Governing Handling of Oil on Vessels and in Facilities
                   (TEX. NAT. RES. CODE ANN. �33.2051(a))

                   GLO rules governing prevention of, response to, and remediation of coastal oil spills, and the
                   assessment of damages to natural resources injured as the result of an unauthorized discharge of
                   oil into coastal waters.

                   Policies

                     1.   The GLO regulations governing prevention of, response to, and remediation of coastal oil
                          spills shall provide for measures to prevent coastal oil spills and to ensure adequate
                          response and removal actions. The GLO regulations for certification of vessels and
                          facilities that handle oil shall be designed to ensure that vessels and facilities are capable
                          of prompt response and adequate removal of unauthorized discharges of oil. The GLO
                          regulations adopted pursuant to the Oil Spill Prevention and Response Act (OSPRA)
                          (TEX. NAT. RES. CODE, Ch. 40), shall be consistent with the State Coastal Discharge
                          Contingency Plan, adopted pursuant to OSPRA, and the National Contingency Plan,
                          adopted pursuant to the Federal Water Pollution Control Act (33 U.S.C.A., �26).

                    2.   GLO rules under OSPRA governing the assessment of damages to natural resources
                          injured as the result of an unauthorized discharge of oil into coastal waters shall provide
                          for reasonable and rational procedures for assessing damages and shall take into account
                          the unique circumstances of the spill incident. The costs of assessing the damages shall
                          not be disproportionate to the value of the injured resources. Plans for restoration,
                          rehabilitation, replacement, or acquisition of equivalent resources shall provide for
                          participation by the public and shall be designed to promote the restoration of the injured
                          resources with all deliberate speed. The GLO rules shall be consistent with other
                          applicable state rules and policies and with the TCMP goals and policies.

                   Management Authority and Administration

                   Under the authority of Texas Natural Resources Code, Chapter 40, the GLO promulgated rules
                   (31 TAC Ch. 19) requiring coastal facilities that handle oil to obtain a certificate of spill
                   prevention and response capability from the GLO. The rules require that vessels carrying oil in
                   coastal waters have a spill prevention and response plan approved by the GLO.

                   The rules also address spill response and remediation, establishing standards for spill response
                   plans, requiring facilities and vessels to maintain access to adequate response equipment and
                   qualified personnel, and providing for the GLO to subject facilities and vessels to announced and
                   unannounced drills and inspections. The GLO also adopted a state coastal contingency plan that
                   established standards for response to oil spills in the coastal zone.

                   Texas Coastal Management Program Final EIS    Part II 4-19                           August 1996

    POLICY CATEGORY 6:  DISCHARGE OF MUNICIPAL AND INDUSTRIAL
                                 WASTEWATER TO COASTAL WATERS

    State Aoencv Action and Managed Uses

    TNRCC - Wastewater Discharge Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(f)(1))

    TNRCC - Permit for a New Concentrated Animal Feeding Operation Located One Mile or Less
    from a Critical Area or Coastal Waters (TEX. NAT. RES. CODE ANN. �33.2053(f)(2))

    The commission issues permits for the point-source discharge of wastewater into or adjacent to
    waters in the state (TEX. WATER CODE ANN. �26.027). Point source means any discernable
    confined and discrete conveyance including a discrete fissure, pipe, ditch, channel, tunnel,
    concentrated animal feeding operation, or vessel or other floating craft from which pollutants or
    wastes may be discharged. Municipal and industrial wastewater includes waterborne liquid,
    gaseous, or solid substances that result from any discharge from a publicly owned sewer system,
    treatment facility, or disposal system, or from any process of industry, manufacturing, trade, or
    business (TEX. WATER CODE ANN. �26.001).

    Policies

    The TNRCC shall comply with the policies in this category when adopting rules and authorizing
    wastewater discharges under Texas Water Code, Chapter 26.

      1. TNRCC rules shall:

           A.     comply with the requirements of the Clean Water Act, 33 United-States Code
                  Annotated, � 1251 et seq., and implementing regulations at Code of Federal
                  Regulations, Title 40, which include establishing surface water quality standards
                  in order to protect designated uses of coastal waters, including the protection of
                  uses for water supply, recreational purposes, and propagation and protection of
                  terrestrial and aquatic life, and establishing water-quality-based effluent limits,
                  including toxicity monitoring and specific toxicity or chemical limits as necessary
                  to protect designated uses of coastal waters;

           B.     provide for the assessment of water quality on a coastal watershed basis once
                  every two years, as required by the Texas Water Code, �26.0135(d);

           C.     to the greatest extent practicable, provide that all permits for the discharge of
                  wastewater within a given watershed or region of a single watershed contain the
                  same expiration date in order to evaluate the combined effects of permitted
                  discharges on water quality within that watershed or region;

           D.     identify and rank waters that are not attaining designated uses and establish total
                  maximum daily pollutant loads in accordance with those rankings; and

    Texas Coastal Management Program Final EIS   Part II 4-20                             August 1996

                         E.     require that increases in pollutant loads to coastal waters shall not:

                                 i.     impair designated uses of coastal waters; or
                                 ii.    result in degradation of coastal waters that exceed fishable/swimmable
                                        quality except in cases where lowering coastal water quality is necessary
                                        for important economic or social development.

                    2.   Discharge of municipal and industrial wastewater in the coastal zone shall comply with
                         the following policies.

                         A.     Discharges shall comply with water-quality-based effluent limits.

                         B.     Discharges that increase pollutant loadings to coastal waters shall not impair
                                designated uses of coastal waters and shall not significantly degrade coastal water
                                quality unless necessary for important economic or social development.

                         C.     To the greatest extent practicable, new wastewater outfalls shall be located where
                                they will not adversely affect critical areas.

                   3.   The TNRCC shall consult with the Texas Department of Health when reviewing permit
                         applications for wastewater discharges that may significantly adversely affect oyster
                         reefs.

                 Management Authority and Administration

                 Texas Water Code, Chapter 26, states that it is the policy of the state to maintain the quality of
                 water in the state consistent with the public health and enjoyment, the propagation and protection
                 of terrestrial and aquatic life, the operation of existing industries, and the economic development
                 of the state and to require the use of all reasonable methods to implement this policy. The
                 TNRCC is designated as the principal authority in the state on matters relating to water quality.
                 The TNRCC administers regulatory programs related to water quality management and coastal
                 resource protection, including (1) Texas Surface Water Quality Standards (TSWQS); (2) the
                 Texas State Water Quality Management Plan (WQMP); and (3) wastewater permits. The
                 TNRCC must comply with these policies when adopting rules and authorizing wastewater
                 discharges under Texas Water Code, Chapter 26.

                 The TNR'CC sets water quality standards in the state by rule under 30 TAC Chapter 307. The
                 TSWQS are used in conjunction with the wastewater permitting program. The TNRCC must
                 consider the existence and effects of nonpoint-source pollution, toxic materials, and nutrient
                 loading in developing and implementing the standards and related waste load models for water
                 quality. Triennial review of the TSWQS is required by EPA and by �303 of the Clean Water
                 Act.

                 Water quality standards occur as three classes of criteria:

    is 1.  Narrative criteria - qualitative standards or general statements that are used to identify
                         impacts on designated uses and as a regulatory basis for controlling impacts to state

                 Texas Coastal Management Program Final EIS    Part II 4-21                          August 1996

           waters. Narrative criteria may address aesthetics, prohibit certain actions or conditions
           (e.g., "free from substances that produce undesirable or    nuisance aquatic life"), or
           state what is expected to occur in the water (e.g., "water quality and aquatic life shall be
           as it naturally occurs").

      2.  Numerical criteria - quantitative standards or numerical values for chemical constituents,
           physical parameters, or biological conditions established to protect one or more
           designated uses. These may be values that may not be exceeded (e.g., toxics), values that
           must be exceeded (e.g., dissolved oxygen), or a combination of the two (e.g., Ph).

      3.  Designated uses - indicate the existing uses to be protected (e.g., certain aquatic life,
           water supply, recreation, and navigation).

    Each stream segment or water body is either classified with site-specific numerical and
    designated use standards, or unclassified, protected under general standards and assigned
    minimum presumned uses and standards. The classified segment-specific uses include (1) several
    categories of aquatic life; (2) contact or non-contact recreation; (3) domestic water supply; (4)
    navigation; and (5) industrial water supply. Most rivers and their major tributaries, major
    reservoirs, and estuarine waters are classified.

    The TSWQS also set forth an antidegradation policy which prohibits increases in pollutant
    loading that would impair existing water- quality-related uses. The policy sets forth extra
    protection for high-quality water bodies. It stipulates, in accordance with EPA policy, that no
    degradation will be allowed in high-quality waters unless the resulting degradation is
    demonstrated to be economically and socially justified.

    The WQMIP, which is required by federal legislation and Texas Water Code �26.0 12, addresses
    such elements as wastewater facility needs, wastewater facility design, population projections,
    management agency designation, water quality problem identification, and waste load
    evaluations. This plan is updated as needed to fill information gaps and to revise certified and
    approved plans. Federal and state-funded construction projects for wastewater facilities are
    evaluated for conformance with applicable WQMP recommendations. New wastewater permits,
    renewals, and amendments are reviewed to determine consistency with the WQMP.

    With the exception of the discharge of oil and gas waste to surface waters, which are regulated
    by the Railroad Commission, any entity that discharges waste into or adjacent to waters of the
    state, including the land disposal of wastewater by means of irrigation, evaporation, and
    subsurface injection, must be authorized by the TNRCC by rule, permit, or order. "Discharge
    permits" refer to the direct discharge of effluent into waters, and "no discharge" permits refer to
    the disposal of wastewater by irrigation or evaporation.

    Municipal wastewater permits are issued to any domestic waste discharger in the form of a new,
    amended, or renewal permit. Title 30 TAC Chapter 309 establishes minimum standards for
    effluent quality for treated domestic sewage to maintain the TSWQS. The rules also include
    siting restrictions for domestic sewage plans. The TNRCC may not issue a permit if the siting
    restrictions listed in 30 TAG �309.13 are not met.

    Texas Coastal Management Program Fitial EIS   Part 11 4-22                         August 1996

               Title 30 TAC Chapter 317 contains design criteria for municipal sewerage systems which serve
               as minimum guidelines to be used for comprehensive consideration of sewage collection,
               treatment, and disposal systems and establishes the minimum design criteria compatible with
               existing state statutes pertaining to effluent quality.

               Industrial wastewater permits are issued to industrial facilities for direct discharge of wastewater
               or for the land disposal of wastewater by means of irrigation, evaporation, and/or septic systems.

               Title 3 0 TAG Chapter 3 10 establishes water quality criteria, design, and operational requirements
               for reuse of reclaimed water (treated effluent) which may be substituted for potable water and/or
               fresh water. Title 30 Chapter 312 sets forth sludge use and disposal standards. Title 30 Chapter
               314 sets forth toxic pollutant effluent standards. Title 30 Chapter 319 sets forth general
               regulations incorporated into permits, including minimum standards for effluent monitoring and
               reporting, and hazardous metal effluent limitations.

               Waters of the state include groundwater, percolating or otherwise, lakes, bays, ponds,
               impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf
               of Mexico (inside the territorial limits of the state), and all other bodies of surface water
               including the beds and banks of all watercourses that are wholly are partially inside or bordering
               the state or inside the jurisdiction of the state (TEX. WATER CODE ANN. �26.001 (5)).

               Except as authorized by permit, rule, or order issued by the commission, no person may
               discharge wastewater into or adjacent to any waters in the state (TEX. WAThR CODE ANN.
    .         ~~~�26.121).

               Exemptions

               Wastewater Discharge Permit and Permit for a New Concentrated Animal Feeding
               Operation Located One Mile or Less From a Critical Area or Coastal Waters. None.

               Variances

              Wastewater Discharge Permit and Permit for a New Concentrated Animal Feeding
               Operation Located One Mile or Less from a Critical Area or Coastal Waters. None.

               Monitoring and Enforcement

              Wastewater Discharge Permit and Permit for a New Concentrated Animal Feeding
               Operation Located One Mile or Less From a Critical Area or Coastal Waters. The
              members of the commission and their agents may enter any property for the purpose of
               inspecting and investigating conditions relating to the water quality of the state (TEX. WATER
               CODE ANN. �26.0 14). Violations may result in administrative penalties of up to $10,000 per
              day and civil and criminal penalties (TEX. WATER CODE ANN. �26.136, �26.122, �26.2121).

              Texas Coastal Management Program Final EIS   Part II 4-23                          August 1996

    Aaencv's Authority to Regulate or Condition Listed Action to Satisfv TCMP Policv

    Wastewater Discharge Permit and Permit for a New Concentrated Animal Feeding
    Operation Located One Mile or Less From a Critical Area or Coastal Waters. After a
    public hearing, notice of which shall be given to the permittee, the commission may require the
    permittee to conform to new or additional conditions (TEX. WATER CODE ANN. �26.029).

    Texas Coastal Management Program Final EIS   Part II 4-24                       August 1996

    POLICY CATEGORY 7:  NONPOINT-SOURCE (NPS) WATER POLLUTION

    State Aaencv Action and Managed Uses

    TSSWCB Regulations Governing Nonpoint-Source Pollution
    (TEX. NAT. RES. CODE ANN. �33.2051(c))

    Agricultural and silvicultural nonpoint-source pollution.

    TNRCC - Regulations Governing Nonpoint-Source Pollution
    (TEX. NAT. RES. CODE ANN. �33.2051(b)(2-3))

    On-site sewage disposal systems and underground storage tanks (USTs).

    Policies

      1.   State agencies and subdivisions with authority to manage NPS pollution shall cooperate
           in the development and implementation of a coordinated program to reduce NPS
           pollution in order to restore and protect coastal waters.

     2.   In an area that the TSSWCB identifies as having or having the potential to develop
           agricultural or silvicultural NPS water quality problems or an area within the coastal
           zone, the TSSWCB shall establish a water quality management plan certification program
           that provides, through the local soil and water conservation district, for the development,
           supervision, and monitoring of voluntary individual water quality management plans for
           agricultural and silvicultural lands. Each plan must be developed, maintained, and
           implemented under rules and criteria adopted by the TSSWCB and discharges under such
           a plan may not cause a violation of state water quality standards established by the
           TNRCC. The TSSWCB's rules shall certify a plan that satisfies the TSSWCB rules and
           criteria and discharges which do not cause a violation of state water quality standards
           established by the TNRCC. This policy is not intended, nor shall it be interpreted, to
           require the TSSWCB to establish non-voluntary requirements for the development,
           maintenance, or implementation of individual water quality management plans.

     3.   TNRCC rules under Texas Health and Safety Code, Chapter 366, governing on-site
           sewage disposal systems, and TNRCC rules under Texas Water Code, Chapter 26,
           Subchapter I, governing underground storage tanks, shall require that on-site disposal
           systems and underground storage tanks be located, designed, operated, inspected, and
           maintained so as to prevent releases of pollutants that may adversely affect coastal
           waters.

     4.   This policy shall not be interpreted or applied so as to require that either a National
           Pollution Discharge Elimination System (NPDES) permit for stormwater discharges
           issued under the Clean Water Act, �402(p), or an NPDES permit for a concentrated
           animal feeding operation, requiring no discharge up to and including a 25-year, 24-hour
           frequency storm, provide additional NPS pollution control measures in addition to those
           required in the permit.

    Texas Coastal Management Program Final EIS   Part II 4-25                           August 1996

    Management Authoritv and Administration

    The TSSWCB, under Texas Water Code, Chapter 26, and Agriculture Code, Chapter 201, is the
    lead authority regarding activity for abating agricultural and silvicultural nonpoint source
    pollution. Chapter 201 of the Agriculture Code sets out specific responsibilities of the
    TSSWCB. Under this authority, the agency administers the state's soil and water conservation
    program and coordinates programs of and provides technical assistance to the soil and water
    conservation districts. Programs to manage agricultural and silvicultural nonpoint source
    pollution are carried out through two coordinated mechanism: the "Agricultural/Silvicultural
    Nonpoint Source Management Program" administered pursuant to the Federal Clean Water Act,
    and a voluntary water quality management plan development program for private lands through
    soil and water conservation districts authorized in Section 201.026 of the Agriculture Code. The
    TSSWCB also administers a complaint resolution process for agricultural and silvicultural
    nonpoint source pollution as well as a cost share program in priority area as determined by the
    State Board. Cost share funds are used to assist producers in implementing certain practices
    included in water quality management plans.

    Under Chapter 366 of the Texas Health and Safety Code and 30 TAC Chapter 285, the TNRCC
    has the authority to promulgate rules and regulate on-site sewage disposal systems. This
    authority will be exercised in compliance with policies in this category (31 TAC �501.14(g)(3)).
    Title 30 TAC Chapter 285 establishes the agency's policy that individual on-site sewage
    treatment facilities must be designed, constructed, and operated to provide adequate sewage
    treatment and disposal that will not contaminate potable water supplies, threaten the health and
    welfare of the public, result in a hazard to the state's recreational areas, or result in pollution of
    groundwater or surface water.

    The primary purpose of these regulations is to establish minimally acceptable standards for the
    construction of on-site sewerage facilities for individual homes, small businesses, recreational
    areas, institutions, and other activities that do not have access to a central collection system. On-
    site surface irrigation with treated wastewater is allowed in accordance with TNRCC policy.
    Dischargers that have any open point discharges to the surface must receive a permit from the
    TNRCC under 30 TAC Chapter 317. For on-site disposal systems with single or collective daily
    flows exceeding 5,000 gallons per day, the TNRCC must determine the necessity for a waste
    discharge permit.

    Permitting for on-site sewerage facilities involves standards and criteria established for all
    aspects of design, construction, installation, operation, and maintenance of a facility for
    residential development, including single dwellings, mobile home parks, subdivisions, and multi-
    use developments served by a central sewerage system. Design standards for systems consider
    topography, soil characteristics, groundwater, flooding, geology, spacing between property lines
    and other utilities, and clearance from structures and surface improvements. Percolation test
    procedures are outlined, along with guidelines for construction, operation, and maintenance.

    Construction and use of systems not in accordance with these regulations constitute a violation.
    The rules specifically prohibit cesspools, bore holes or injection wells for domestic sewage
    disposal, and seepage pits for on-site disposal systems because they tend to create nuisances and

    Texas Coastal Management Program Final EIS   Part II 4-26                           August 1996

               other conditions prejudicial to the public health. In addition, 30 TAC �285.109 sets out penalties
               under this authority, which are described below.

               The TNRCC administers the regulation of underground storage tanks (USTs) under the authority
               of Texas Water Code, Chapter 26, Subchapter I, and 30 TAG Chapter 334. The purpose of the
               regulations is to provide a comprehensive regulatory program for UST systems storing hazardous
               substances and petroleum substances. The TNRCC will administer these regulations in
               compliance with the policy in 31 TAG �501.14(g)(3).

               The rules establish minimum standards and procedures to protect human health and safety and to
               protect and maintain the quality of the state's groundwater and surface water resources against
               environmental contamination that could result from releases of harmful substances stored in such
               tanks. The requirements and provisions apply to registration, design, construction, installation,
               operation, testing, maintenance, upgrading, record keeping and reporting, removal from service,
               release monitoring, reporting and corrective action, and other aspects of UST systems.

               Technical standards apply to new and existing systems to ensure that their design, installation,
               and operation will prevent releases due to structural failure or corrosion. The standards provide
               for spill and overfill prevention, release detection, and approved secondary containment systems
               for al existing hazardous substance UST systems.

               If an investigation, review, or inspection by the TNRCC does not sufficiently demonstrate that
               the installation, operation, maintenance, corrective action, or any other activity related to a UST
               system is in accordance with the applicable regulations, the TNRCC is authorized to take
               enforcement action. The TNRCC may require additional documentation to demonstrate
               compliance, require additional activities to achieve compliance, and initiate formal enforcement
               action and seek administrative penalties as prescribed in 30 TAC Chapter 337 and Texas Water
               Code �26.019.

               Under Texas Health and Safety Code Chapter 366 and 30 TAG Chapter 285, the TNRCC has the
               authority to promulgate rules and regulate on-site sewage disposal systems. This authority will
               be exercised in compliance with the policies in this category. Title 30 TAG Chapter 285
               establishes the agency's policy that individual on-site sewage treatment facilities must be
               designed, constructed, and operated to provide adequate sewage treatment and disposal that will
              not contaminate potable water supplies, threaten the health and welfare of the public, result in a
              hazard to the state's recreational areas, or result in pollution of groundwater or surface water.

              The primary purpose of these regulations is to establish minimally acceptable standards for
              constructing on-site sewerage facilities for individual homes, small businesses, recreational
              areas, institutions, and other activities that do not have access to a central collection system. On-
               site surface irrigation of treated wastewater is allowed in accordance with agency policy.
              Dischargers must obtain a permit from the TNRCC under 30 TAG Chapter 317 for any open
              point discharges to the surface. For on-site disposal systems with single or collective daily flows
              of over 5,000 gallons per day, the TNRCC must determine the necessity for a waste discharge
    .        ~~~permit.

              Texas Coastal Management Program Final EIS   Part II 4-27                          August 1996

    Permitting for on-site sewerage facilities involves standards and criteria established for all
    aspects of design, construction, installation, operation, and maintenance of a facility for
    commercial development. Design standards for systems consider topography, soil                            0
    characteristics, groundwater, flooding, geology, spacing between property lines and other
    utilities, and clearance from structures and surface improvements. Percolation test procedures
    are outlined, along with guidelines for construction, operation, and maintenance.

    Construction and use of systems not in accordance with these regulations constitute a violation.
    The rules specifically prohibit cesspools, bore holes, or injection wells for domestic sewage
    disposal and seepage pits for on-site disposal systems because they tend to create nuisances and
    other conditions prejudicial to the public health. In addition, 30 TAC �285.109 sets out penalties
    under this authority.

    State agencies with authority to manage various sources of nonpoint pollution that affect coastal
    waters include the TSSWCB, TNRCC, GLO, TxDOT, and TPWD. These agencies must work
    together, in accordance with the policy in 31 TAC �501.14(g)(1), described above, along with
    the interested public, to reduce NPS pollution to restore and protect coastal waters.

    The TSSWCB, under Chapter 26 of the Texas Water Code, is the lead authority regarding
    strategies for abating agricultural and silvicultural nonpoint-source pollution. The TSSWCB is
    required to determine those areas of the state that either have agricultural nonpoint-source
    problems or have a potential for such problems and to establish a water quality management plan
    certification program for these areas. Texas Agriculture Code, Chapter 201, also sets out specific
    responsibilities of the TSSWCB. Under this authority, the agency administers the state's soil and
    water conservation program and coordinates and provides technical assistance to soil and water
    conservation districts. Programs to manage agricultural and silvicultural nonpoint-source
    pollution are carried out through the "Agricultural/Silvicultural Nonpoint-Source Program for
    Texas" and a voluntary water quality management plan development program for private lands
    through soil and water conservation districts. The TSSWCB also manages a cost-share program
    and the Clean Water Act �319 program for agriculture to assist landowners in implementing
    management measures.

    The GLO is responsible for the siting, design, and construction of marinas on state land and
    approval of erosion response methods and has the authority to require best management practices
    to prevent nonpoint-source pollution resulting from these activities.

    The GLO is also responsible for cooperating with the TPWD, TNRCC, and other agencies in the
    development of the State-Owned Coastal Wetland Management Plan, which will address
    nonpoint-source pollution affecting coastal wetlands (see Chapter Six).

    Texas Coastal Management Program Final EIS    Part II 4-28                          August 1996

    POLICY CATEGORY 8: DEVELOPMENT IN CRITICAL AREAS

    State Agencv Action and Managed Uses

    RRC - Certification of a Federal Permit for the Discharge of Dredged or Fill Material
    (TEX. NAT. RES. CODE ANN. �33.2053(c)(3))

    Dredging and filling activities associated with oil and gas exploration, production, or pipeline
    construction that require a federal Clean Water Act �404 permit.

    TNRCC - Certification of a Federal Permit for the Discharge of Dredge or Fill Material
    (TEX. NAT. RES. CODE ANN. �33.2053()(6))

    Dredging and filling operations that require a federal Clean Water Act �404 permit.

    SLB - Mineral Lease Plan of Operations
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(1))

    Oil and gas and mineral leases including drilling activities, alterations to the natural landscape,
    surface and bottom-hole location of the initial well, location of additional planned wells and
    production facilities, location of shipping fairways and anchorage areas, anticipated routes for
    pipelines, and location of routes of dredging required for all production-related activities, such as
    pipelines, well-drilling, and construction of facilities.

    GLO - Geophysical or Geochemical Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(2))

    Geophysical exploration means a survey or investigation conducted to discover or locate
    minerals or oil and gas prospects using magnetic, gravity, seismic, and/or electrical techniques.
    Geochemical exploration means a survey or investigation conducted to discover or locate
    minerals or oil and gas prospects using techniques involving soil sampling and analysis (TEX.
    NAT. RES. CODE ANN. �52.321 and �53.161).

    GLO - Miscellaneous Easement (ME)
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(4))

    MEs are required for construction and placement of telephone, telegraph, electric transmission,
    and power lines; oil pipelines; gas pipelines and sulphur pipelines; other electric lines and
    pipelines of any nature; irrigation canals, laterals, and water pipelines; roads; and any other
    purpose the commissioner considers to be in the best interests of the state (TEX. NAT. RES.
    CODE ANN. �51.291). MEs are also required for electric substations, pumping stations, loading
    racks, and tank farms on state land other than land owned by the University of Texas System
    (TEX. NAT. RES. CODE ANN. �51.292).

    Texas Coastal Management Program Final EIS    Pait II 4-29                          August 1996

    GLO - Surface Lease
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(6)) i

    Unsold public school land and asylum land may be leased for agricultural, grazing, or
    commercial purposes (TEX. NAT. RES. CODE ANN. �51.121).

    SLB - Structure Registration
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(7))

    Construction of piers by littoral property owners for noncommercial use if pier is 100 feet or less
    in length and 25 feet or less in width, and requires no filling or dredging (TEX. NAT. RES.
    CODE ANN. �33.115).

    SLB - Coastal Easement
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(3))

    Dredging of basins and channels on state-owned submerged land; construction of piers, docks,
    marinas, bulkheads, seawalls, and other waterfront structures on state-owned submerged land.
    The School Land Board may also grant easement rights to the owner of adjacent littoral property
    authorizing the placement or location of a structure on coastal public land for purposes connected
    with the ownership of littoral property (TEX. NAT. RES. CODE ANN. �33.111).

    SLB - Coastal Lease
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(5))

    Coastal public land may be leased to: (1) the Texas Parks and Wildlife Department (TPWD) or to
    any eligible city or county for public recreational purposes; (2) the TPWD for management of
    estuarine preserves; (3) any nonprofit, tax-exempt environmental organization approved by the
    School Land Board for the purpose of managing a wildlife refuge; and (4) any scientific or
    educational organization or institution for conducting scientific research (TEX. NAT. RES.
    CODE ANN. �33.105 and �33.109).

    SLB - Cabin Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(8))

    Permitting of limited continued use of previously unauthorized structures on coastal public land
    if the use is sought by one who is claiming an interest in the structure but is not incident to the
    ownership of the littoral property (TEX. NAT. RES. CODE ANN. �33.119). Previously
    unauthorized structures for which permits are obtained may be used only for noncommercial,
    recreational purposes (TEX. NAT. RES. CODE ANN. �33.128).

    SLB - Navigation District Lease
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(9))

    The School Land Board may lease state-owned land to eligible navigation districts only for
    purposes reasonably related to the promotion of navigation. Navigation includes marine
    commerce and immediately related activities, including but not limited to port development;

    Texas Coastal Management Program Final EIS   Part II 4-30                         August 1996

    channel construction and maintenance; industrial site locations, transportation, shipping and
    storage facilities; pollution abatement facilities; and all other activities necessary or appropriate
     tothe promotion of marine commerce. In applying for leases, districts which will require
    dredging, filling, or bulkheading must provide, among other requirements, a draft environmental
    impact statement assessing the effect of the proposed use on the environment, which statement
    shall generally conform to the requirements of the National Environmental Policy Act. The
    district must also provide proof satisfactory to the board establishing the public convenience and
    necessity for acquisition of lands sought to be leased (TEX. WATER CODE ANN. �61.116).

    GLO - Agency or Subdivision Wetlands Mitigation Bank
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(11))

    The GLO, in conjunction with the U.S. Army Corps of Engineers, U.S. Environmental Protection
    Agency (EPA), U.S. Fish and Wildlife Service, National Marine Fisheries Service, Texas Parks
    and Wildlife Department, and Texas Natural Resource Conservation Commission (Mitigation
    Bank Review Team), approves parcels of real property proposed for a mitigation bank (TEX.
    REV. CIV. STAT. ANN. art. 542 1(u) and Interagency Guidelines for Development and Use of
    Mitigation Banks, GLO et al., 6-93)).

    Policies

    The TNRCC and the RRC shall comply with the policies in this category when issuing
    certifications and adopting rules under Texas Water Code, Chapter 26, and the Texas Natural
    Resources Code, Chapter 91, governing certification of compliance with surface water quality
    standards for federal actions and permits authorizing development affecting critical areas;
    provided that activities exempted from the requirement for a permit for the discharge of dredged
    or fill material, described in Code of Federal Regulations, Title 33, �323.4 and/or Code of
    Federal Regulations, Title 40, �232.3, including but not limited to normal farming, silviculture,
    and ranching activities, such as plowing, seeding, cultivating, minor drainage, and harvesting for
    the production of food, fiber, and forest products, or upland soil and water conservation
    practices, shall not be considered activities for which a certification is required.

    The GLO and the SLB shall comply with the policies in this category when approving oil, gas, or
    other mineral lease plans of operations or granting surface leases, easements, and permits and
    adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 5 1-53, and Texas
    Water Code, Chapter 61, governing development affecting critical areas on state submerged
    lands and private submerged lands, and when issuing approvals and adopting rules under Texas
    Civil Statutes, article 5421u, for mitigation banks operated by subdivisions of the state.

      I1.   Dredging and construction of structures in, or the discharge of dredged or fill material
           into, critical areas shall comply with the policies in this category. In implementing this
           policy, cumulative and secondary adverse effects of these activities will be considered.

           A.     These policies shall be applied in a manner consistent with the goal of achieving
                  no net loss of critical area functions and values.

    Texas Coastal Management Program Final EIS   Part II 4-31                          August 1996

           B.     Persons proposing development in critical areas shall demonstrate that no
                   practicable alternative with fewer adverse effects is available.

                   i.     The person proposing the activity shall demonstrate that the activity is
                           water-dependent. If the activity is not water-dependent, practicable
                           alternatives are presumed to exist, unless the person clearly demonstrates
                           otherwise.

                   ii.    The analysis of alternatives shall be conducted in light of the activity's
                           overall purpose.

                   iii.    Alternatives may include different operation or maintenance techniques or
                           practices or a different location, design, configuration, or size."

           C.     In evaluating practicable alternatives, the following sequence shall be applied:

                   i. Adverse effects on critical areas shall be avoided to the greatest extent
                          practicable.

                   ii.    Unavoidable adverse effects shall be minimized to the greatest extent
                          practicable by limiting the degree or magnitude of the activity and its
                          implementation.

                   iii.    Appropriate and practicable compensatory mitigation shall be required to
                          the greatest extent practicable for all adverse effects that cannot be avoided
                           or minimized.

           D.     Compensatory mitigation includes restoring adversely affected critical areas or
                   replacing adversely affected critical areas by creating new critical areas.
                   Compensatory mitigation should be undertaken, when practicable, in areas
                   adjacent or contiguous to the affected critical areas (on-site). If on-site
                   compensatory mitigation is not practicable, compensatory mitigation should be
                   undertaken in close physical proximity to the affected critical areas if practicable
                   and in the same watershed if possible (off-site). Compensatory mitigation should
                   also attempt to replace affected critical areas with critical areas with
                   characteristics identical to or closely approximating those of the affected critical
                   areas (in-kind). The preferred order of compensatory mitigation is:

                   i.     on-site, in-kind;

                   ii.    off-site, in-kind;

                   iii.    on-site, out-of-kind; and

                   iv.    off-site, out-of-kind.

    Texas Coastal Management Program Final EIS    Part II 4-32                           August 1996

                    E.     Mitigation banking is acceptable compensatory mitigation if use of the mitigation
                           bank has been approved by the agency authorizing the development and
                           mitigation credits are available for withdrawal. Preservation through acquisition
                           for public ownership of unique critical areas or other ecologically important areas
                           may be acceptable compensatory mitigation in exceptional circumstances.
                           Examples of this include areas of high priority for preservation or restoration,
                           areas whose functions and values are difficult to replicate, or areas not adequately
                           protected by regulatory programs. Acquisition will normally be allowed only in
                           conjunction with preferred forms of compensatory mitigation.

                   F.     In determining compensatory mitigation requirements, the impaired functions and
                           values of the affected critical area shall be replaced on a one-to-one ratio.
                           Replacement of functions and values on a one-to-one ratio may require restoration
                           or replacement of the physical area affected on a ratio higher than one-to-one.
                           W~hile no net loss of critical area functions and values is the goal, it is not required
                           in individual cases where mitigation is not practicable or would result in only
                           inconsequential environmental benefits. It is also important to recognize that there
                           are circumstances where the adverse effects of the activity are so significant that,
                           even if alternatives are not available, the activity may not be permitted regardless
                           of the compensatory mitigation proposed.

                   G.     Development in critical areas shall not be authorized if significant degradation of
                           critical areas will occur. Significant degradation occurs if:

    0                    ~~~~~~~i.  the activity will jeopardize the continued existence of species listed as
                                  endangered or threatened, or will result in likelihood of the destruction or
                                  adverse modification of a habitat determined to be a critical habitat under
                                  the Endangered Species Act, 16 United States Code Annotated,
                                  ��1531-1544;

                           ii.    the activity will cause or contribute, after consideration of dilution and
                                  dispersion, to violation of any applicable surface water quality standards
                                  established under Policy Category 6;

                           ii.    the activity violates any applicable toxic effluent standard or prohibition
                                  established under Policy Category 6;

                           iv.    the activity violates any requirement imposed to protect a marine
                                  sanctuary designated under the Marine Protection, Research, and
                                  Sanctuaries Act of 1972, 33 United States Code Annotated, Chapter 27; or

                           V.     taking into account the nature and degree of all identifiable adverse
                                  effects, including their persistence, permanence, areal extent, and the
                                  degree to which these effects will have been mitigated pursuant to
                                  subparagraphs (C) and (D) of this paragraph, the activity will, individually

                                  or collectively, cause or contribute to significant adverse effects on:

           Texas Coastal Management Program Final EIS   Part II 4-33                         August 1996

                          I.     human health and welfare, including effects on water supplies,
                                  plankton, benthos, fish, shellfish, wildlife, and consumption of fish
                                  and wildlife;                                                             O

                          II.    the life stages of aquatic life and other wildlife dependent on
                                  aquatic ecosystems, including the transfer, concentration, or spread
                                  of pollutants or their byproducts beyond the site, or their
                                  introduction into an ecosystem, through biological, physical, or
                                  chemical processes;

                          Ill.   ecosystem diversity, productivity, and stability, including loss of
                                  fish and wildlife habitat or loss of the capacity of a coastal wetland
                                  to assimilate nutrients, purify water, or reduce wave energy; or

                          IV.    generally accepted recreational, aesthetic or economic values of the
                                  critical area which are of exceptional character and importance.

     2.   Agencies required to comply with this policy will coordinate with one another and with
           federal agencies when evaluating alternatives, determining appropriate and practicable
           mitigation, and assessing significant degradation. Those agencies' rules governing
           authorizations for development in critical areas shall require a demonstration that the
           requirements of paragraph (1)(A)-(G) of this policy have been satisfied.

      3.   For any dredging or construction of structures in, or discharge of dredged or fill material
           into, critical areas that is subject to the requirements of �501.15 of this title (relating to
           Policy for Major Actions), data and information on the cumulative and secondary adverse
           affects of the project need not be produced or evaluated to comply with this policy if such
           data and information is produced and evaluated in compliance with �501.15(b)-(c) of this
           title (relating to Policy for Major Actions).

    Explanation

    The TCMP policies for Development in Critical Areas (31 TAC �501.14(h)) contain the primary
    standards for the evaluation of proposed development in or on coastal wetlands, submerged
    aquatic vegetation, tidal sand or mud flats, oyster reefs, and hard substrate reefs. The policy is a
    restatement, in simplified terms, of the standards already being used by the two federal agencies
    with direct permitting responsibilities over these areas, the U.S. Army Corps of Engineers and
    the U.S. Environmental Protection Agency. These standards are called the �404(b)(1)
    Guidelines. By adopting them as the standard for the State of Texas to apply to development in
    or on coastal wetlands and other critical areas, the Council intends to get all state and federal
    agencies on the "same page" and thereby reduce interagency conflicts over coastal wetlands.

    The basic goal of the policies is no net loss of critical area functions and values. Functions are
    the physical processes and manifestations of processes that occur in critical areas; for example,
    the way in which coastal wetlands retain floodwaters after it rains. Value means the benefits that
    coastal communities actually realize from these functions. Using the previous example, coastal

    Texas Coastal Management Program Final EIS   Part II 4-34                          August 1996

                wetlands have value in reducing the loss of life and damage to property from floods by retaining

    is ~~~floodwaters after a heavy rain.

                Least Dama~yinc2 Alternative

                An activity subject to the critical areas policy must meet two basic requirements to be consistent
                with the TCMP. First, the person or entity proposing the project must demonstrate that no
                practicable alternatives with fewer adverse effects are available. To determine whether this basic
                requirement is met, it must initially be determined whether the project is water-dependent.
                Unless the applicant clearly demonstrates otherwise, a project that is not water-dependent is
                presumed to have practicable alternatives that would be less damaging to the critical area. In
                other words, an applicant seeking authorization for a non-water-dependent project must make a
                convincing case that it is not feasible to locate the project outside a critical area.

                A project is water-dependent only if it requires direct access or proximity to coastal waters to
                fulfill the project purpose. Water dependency is determined by looking at the basic purpose of
                the project. For example, the basic purpose of a hotel is shelter. The basic purpose of a
                restaurant is to serve food. A typical hotel or restaurant can serve these functions without access
                to water. Facilities that are water-dependent include public beach use and access facilities, boat
                slips, docks, breakwaters,'marinas, wharves and other vessel loading or off-loading facilities,
                utility easements, boat ramps, navigation channels and basins, bridges and bridge approaches,
                revetments, shoreline protection structures, culverts, groins, saltwater barriers, navigational aids,
                mooring pilings, simple access channels, fish processing plants, boat construction and repair
                facilities, offshore pipelines, and constructed wetlands below mean high water. Activities that
    *         ~~~are water-dependent include marine recreation (fishing, swimming, boating, wildlife viewing),
                industrial uses dependent on marine transportation or requiring large volumes of water that
                cannot be obtained at inland sites, mariculture, exploration for and production of oil and gas
                under coastal waters or submerged lands, and certain meteorological and oceanographic
                activities.

                Once it is determined whether alternatives to the project are presumed to exist, the focus shifts to
               the project's actual impacts. The second step is for the applicant to demonstrate that the project,
                as proposed, is the least environmentally damaging alternative. It meets this criterion only if all
                appropriate and practicable steps have been taken to avoid and minimize, to the greatest extent
               practicable, adverse effects on critical areas. Appropriate and practicable compensatory
               mitigation will be required for unavoidable adverse effects. Unavoidable adverse effects are
               those effects from an activity that cannot be avoided or minimized.

               Compensatory mitigation is not considered avoidance of adverse effects. Rather, avoidance of
               adverse effects is preferred over minimization, and minimization of adverse effects is preferred
               over compensation for them. Compensatory mitigation can include restoration of degraded
               areas, creation of new critical areas, or preservation of critical areas. Cumulative and secondary
               adverse effects of a proposed project are considered as well as primary adverse effects.

               Texas Coastal Management Program Final EIS   Part 11 4-35                         August 1996

    Significant Degradation

    The second basic requirement of the critical areas policy is that a project may not be authorized if
    it causes significant degradation of critical areas. There are some circumstances where the
    adverse effects of a project would be so significant that, even if alternatives are not available, the
    project may not be permitted regardless of the compensatory mitigation proposed. The critical
    areas policy anticipates those circumstances and defines them as cases of "significant
    degradation." As defined in the critical areas policy, significant degradation occurs if the project:

       �   causes or contributes to violation of applicable state water quality or effluent standards
           under Section 307 of the Clean Water Act or Title 30, Texas Administrative Code,
           Chapter 307;

       �  jeopardizes the continued existence of federally listed endangered or threatened species or
           their critical habitat;

       *   violates requirements of any federally designated marine sanctuary; or

       *   causes or contributes to significant adverse effects on human health, on life stages of
           organisms dependent on the aquatic ecosystem, on ecosystem diversity, productivity, and
           stability, or on recreational, aesthetic and economic values.

    Comnensatorv Mitieation

    Where significant degradation is not likely, whether a project can be authorized hinges frequently
    on whether compensatory mitigation is practicable. Compensatory mitigation involves
    replacement of critical area functions and values at a ratio of one-to-one. Functions and values
    may include fish and wildlife habitat, storage and purification of runoff, lost recreational
    opportunities, and others. Compensatory mitigation measures include revegetation of disturbed
    areas, recontouring of land, replacement of oyster reefs, and habitat creation in the form of
    scrapedown and/or planting and restoration. Although the state's goal is no net loss of functions
    and values, this result is not required in individual cases where mitigation is not practicable or
    where it would result in only inconsequential environmental benefits.

    Specific mitigation requirements for unavoidable adverse effects will be determined according to
    the following preferred order.

       * on-site (adjacent or contiguous to the affected area), in-kind (restoring or replacing the
           damaged critical area with critical areas having identical or similar characteristics);

       *   off-site (generally in the same geographic area, such as the same watershed or ecoregion),
           in-kind;

       *   on-site, out-of-kind; and

       �   off-site, out-of-kind.

    Texas Coastal Management Program Final EIS   Part II 4-36                            August 1996

               Preservation of unique critical areas or other ecologically important areas through acquisition for
               public ownership may be acceptable compensatory mitigation in exceptional circumstances. In
    0       ~     ~~determining whether acquisition is appropriate, consideration must be given to whether the area
               is of high priority for preservation in the region where it is located, whether the functions and
               values of the area are difficult to replicate, or whether the area is already adequately protected by
               regulatory programs.

               Mitioation Bankin2y

               Under the TCMP, mitigation banking is acceptable compensatory mitigation if use of the bank
               has been approved by the agency authorizing the development activity and if mitigation credits
               are available for withdrawal. A mitigation bank is a site where wetlands and/or other aquatic
               resources are restored, created, enhanced, or in exceptional circumstances, preserved expressly
               for the purpose of providing compensatory mitigation in advance of authorized impacts to similar
               resources.

               On the Texas coast, an interagency group of federal and state regulatory and resource agencies
               called the Mitigation Bank Review Team (MBRT) oversees the establishment, use, and operation
               of mitigation banks. The MBRT is coordinated by the Galveston District of the Corps. Its
               primary role is to facilitate the establishment of effective, reliable mitigation banks.

               Interagency guidelines for the development and use of mitigation banks in the Corps Galveston
               District were prepared in 1993 by state and federal resource involved in the MBRT. These
               general guidelines were designed to assist potential bankers in developing acceptable mitigation
               bank proposals. They required each bank to be created by a memorandum of agreement (MOA)
               as documentation of agency concurrence on the objectives and administration of the bank.

               The MOA describes in detail the physical and legal characteristics of the bank, and how the bank
               will be established and operated. The MOA is signed by the bank sponsor and agencies
               represented on the MBRT. The guidelines include a definition section, prerequisites for approval
               of mitigation bank MOAs, mitigation bank criteria and procedures during the early consultation
               process, bank location, evaluation of functions and values, components of a site plan, transfer of
               credits, and bank time limits. These guidelines have been superseded by national guidelines
               adopted by Corps, EPA, USFWS, NMFS, and USDA on November 20, 1995. However, the
               national guidelines are similar in nature to the 1993 MBRT guidelines.

               Management Authoritv and Administration

               Section 401 Water-Quality Certification

               The chief state authority for regulation of coastal wetlands is water-quality certification under
               �401 of the Clean Water Act (CWA). This process essentially allows the state to determine
               whether federal permits for discharges into the surface waters of the state will be granted, denied,
               or conditionally granted. Section 401 certification authority covers all Corps permits under �404
               of the CWA, permits or licenses issued by the Federal Energy Regulatory Commission, and
               NPDES permits under �402 of the CWA. Section 401 certifications are also required for

               Texas Coastal Management Program Final EIS   Part 11 4-37                         August 1996

    activities requiring Corps ��9 and 10 of the Rivers and Harbors Act if the activity may lead to a
    discharge.

    Section 401 Certification in Texas

    Wetlands are already included in the definition of "waters in the state" (30 TAC �307.3(a)(45)),
    and current Surface Water Quality Standards (SWQS) apply to wetlands. In Texas, surface water
    quality standards are established by the TNRCC and are contained in Chapter 307 of the
    TNRCC's permanent rules. When combined with the TCMP federal and state consistency
    review processes, �401 certification will provide comprehensive protection from activities in or
    near coastal wetlands. This approach not only strengthens the state role in wetland protection,
    but also reduces duplication of effort and coordinates permit review for applicants. Certification
    of discharges of dredged or fill materials or construction of structures will be evaluated by
    application of the elements of the �404(b)(1) Guidelines based on the antidegradation policy in
    31 TAC Chapter 307.

    Responsibility and authority for issuing �401 certifications in Texas is shared by the TNRCC and
    RRC. The TNRCC issues �401 certifications for all activities except those related to oil and gas
    exploration and production. The RRC is responsible for the prevention and abatement of
    pollution of surface waters associated with oil and gas exploration, development, and production
    operations (E&P operations), including pipeline transportation of crude oil and natural gas.
    Thus, the RRC is the �401 certifying agency for issuance of federal permits associated with oil
    and gas E&P operations. In particular, the RRC is the �401 certifying agency for any Corps
    permit required:

       � to dredge an access channel in order to conduct drilling or production operations in a
           critical area;

       *   in connection with construction of a drilling pad or installation of a production platform
           in a critical area; or

       *   in connection with construction, operation, or maintenance of a crude oil or natural gas
           pipeline facility in a critical area.

    The TNRCC's and RRC's respective authorities and programs for issuing �401 certifications are
    the state's primary existing wetlands regulatory authorities. They constitute the component of the
    TCMP for managing land and water uses that impact coastal wetlands and other critical areas.
    For purposes of the TCMP, therefore, the most important of the permits subject to TNRCC or
    RRC certification are those for discharges of dredged and fill material under �404 of the CWA
    and under �9 and � 10 of the Rivers and Harbors Act for those activities in navigable waters that
    may lead to a discharge. These authorizations are issued by the Corps and include individual
    permits, general permits, and letters of permission.

    TNRCC Process

    For some time, provisions of TNRCC rules applicable to �401 certification of activities affecting
    wetlands have included the following:

    Texas Coastal Management Program Final EIS   Part H 4-38                            August 1996

       * The requirement to conduct a site-specific assessment of uses and standards in response
            to administrative or regulatory actions by the TNRCC.

       *   The primary level of antidegradation protection, which states that existing uses will be
           maintained.

       *   Narrative criteria for aesthetic, radiological, toxic, nutrient, and salinity parameters.

       �   Numerical limitations on thermal elevations above ambient conditions.

       *   Numerical limitations on fecal coliform bacteria to levels which are considered
           appropriate for contact recreation.

       *   Acute toxic criteria to protect aquatic life.

       *   The additional level of protection provided by the antidegradation policy to waters which
           exceed "fishable/swimmable" quality. This provision of the antidegradation policy would
           prohibit any activity that would cause degradation of wetlands unless the activity were
           demonstrated to be socially and economically justified, even if no violations of narrative
           or numerical standards criteria were anticipated. For wastewater discharges, the
           antidegradation policy is already used to require an evaluation of alternatives,
           minimization of impacts, and economic justification if a proposed discharge is expected
           to cause degradation of high-quality waters. Application of this provision of the
           antidegradation policy is based on a case-by-case determination of the characteristics of
           the affected wetlands.

       �   Chronic numerical toxic criteria to protect aquatic life use. Chronic criteria to protect
           aquatic life uses will apply wherever aquatic life uses are attainable, including wetlands.

       - Numerical human health criteria to protect human consumption of fish. Human health
           criteria to protect sustainable fisheries, incidental fisheries, or drinking water supplies
           will apply wherever these uses are attainable, including wetlands.

    Effective July 13, 1995, the TNRCC amended its �401 certification rules to incorporate the basic
    components of the �404(b)(1) Guidelines in a manner consistent with the TCMP critical areas
    policy. Among other things, the rule now requires avoidance of, minimization of, and
    compensation for water quality impacts, including the functions and values of wetlands. TNRCC
    rules expressly affirm the goal of "no net loss" of wetlands.

    Chapter 279 of the TNRCC's rules contains both the procedures and criteria for the application,
    processing and review of state water quality certifications. It provides for public notice, hearing,
    and comment and requires the TNRCC to coordinate the certification of federal permits and
    licenses with other state resource agencies.

    For actions subject to water quality certification, the TNRCC's executive director will utilize, to
    the greatest extent practicable, a joint mailed notice issued by Corps, the EPA, or other licensing
    or permit agency after agreements with those agencies have been reached regarding the content

    Texas Coastal Management Program Final EIS   Part II 4-39                            August 1996

    of the notice and the persons entitled to notice in Texas. Ifjoint notice is not used, the TNRCC
    will publish notice, which will include mailings to, among others: MMW, USFWS, TWDB,
    NMFS, EPA, GLO, and the chairman of the Coastal Coordination Council. The executive i
    director will solicit comments and will consider all comments related to the impacts of the
    proposed activity submitted in accordance with the rules.

    The executive director of the TNRCC will conduct a public hearing on any application for
    certification if the executive director determines that such a hearing would be appropriate or if
    such a hearing is requested by any affected person in writing within 30 days after the publication
    of notice of application. If a public hearing is held, notice will be provided by first class mail to
    all parties receiving the initial notice of application. Following the hearing, the executive
    director will consider al comments and determine if the proposed activity will result in any
    violation of the federal CWA or the criteria in the agency's rules. The executive director may
    grant, conditionally grant, waive, or deny certification. The final decision will be issued within
    60 days from the date the draft permit is mailed, and will be provided to any person or entity
    requesting notification.

    RRC Process

    R.RC rules (which will take effect when provisions for Council review of individual proposed
    actions are implemented) base �401 certifications on consistency with the TCM1P policies. They
    provide that notice of a request for �401 certification may be given through a joint notice issued
    by the Corps or the applicant. The RRC has finalized a joint notice with the Corps. All requests
    for �401 certification shall be noticed through the Corps.

    The RRC will consider all comments on a request for �401 certification that are filed within 30
    days of the date notice is given. The RRC may also hold a public meeting to receive comment if
    it determines that such a meeting is in the public interest. The RRC may grant, conditionally
    grant, deny, or waive certification. The RRC may waive certification in limited instances, such
    as where the proposed activity does not fall within the RRC's jurisdiction or the permitting
    activity involves renewal or amendment of a Corps permit and such renewal or amendment will
    not authorize impacts to critical areas that materially exceed those authorized under the original
    permit.

    A person opposing issuance of a Corps permit will not be granted a hearing on a certification
    decision made by the RRC. Gr-ant, conditional grant, or waiver of certification by the RRC will
    not automatically result in issuance of the permit by the Corps. A grant or waiver of
    certification, or a conditional certification that is accepted by the applicant, merely lifts a bar to
    permit issuance. A protestant may have an opportunity to contest issuance of the permit in a
    hearing conducted by the Corps.

    Because denial of certification acts as a bar to permit issuance, a hearing will be held at the
    applicant's request if certification is denied. If the RRC conditionally grants certification and the
    applicant objects to any of the conditions, the applicant may request a hearing. If a hearing is
    held on the certification action, the RRC's action can be appealed to district court by a party to
    the proceeding. (See Texas Government Code, �2001.171.)

    Texas Coastal Management Program Final EIS    Part II 4-40                           August 1996

    Other Authorities

    Coastal public land means all or any portion of state-owned submerged land, the water overlying
    that land, and all state-owned islands or portions of islands in the coastal zone. Submerged land
    is any land extending from the boundary between the land of the state and the littoral owners
    seaward to the low-water mark on any saltwater lake, bay, inlet, estuary, or inland water within
    the tidewater limits, and any land lying beneath the body of water, but shall exclude beaches
    bordering on the open Gulf of Mexico and the land lying beneath this water (TEX. NAT. RES.
    CODE ANN. �33.004(6)(1 1)).

    Oil and gas leases may be issued for islands, saltwater lakes, bays, inlets, and marshes owned by
    the state within tidewater limits; rivers and channels owned by the state; the portion of the Gulf
    of Mexico within the jurisdiction of the state; all unsold surveyed and unsurveyed public school
    land; and all land sold with a reservation of minerals to the state under TEX. NAT. RES. CODE
    ANN. �51.054 in which the state has retained leasing rights. A mineral lease plan of operations
    is not currently a condition of the lease application process. Applications for mineral leases may
    contain any information the commissioner requires (TEX. NAT. RES. CODE ANN. �53.015).

    Geophysical or geochemical permits are required for all exploration on public school land, which
    includes all land dedicated to the permanent free school fund and specifically includes land with
    a mineral classification in which the state has retained the oil and gas interest and areas within
    tidewater limits (TEX. NAT. RES. CODE ANN. �52.32 1). Except for a person who has a valid
    oil and gas lease on public school land, a person may not conduct geophysical and geochemical
    exploration without a permit (TEX. NAT. RES. CODE ANN. �52.322).

    MEs are required for land and water uses described above for MEs across, through, and under
    unsold public school land, the portion of the Gulf of Mexico within the jurisdiction of the state,
    the state-owned riverbeds and beds of navigable streams in the public domain, and all islands,
    saltwater lakes, bays, inlets, marshes, and reefs owned by the state within tidewater limits (TEX.
    NAT. RES. CODE ANN. �51.291).

    Registration requirements apply only to piers of the dimensions described above for structure
    registrations.

    Permits are required for the land uses described above for cabin permits. Permits may not be
    granted for continued use of a structure located within 1000 feet of: (1) privately owned littoral
    property, without written consent of the littoral owner; (2) any federal or state wildlife sanctuary
    or refuge; or (3) any federal, state, county, or city park bordering on coastal public land (TEX.
    NAT. RES. CODE ANN. �31.124).

    Any state agency and all political subdivisions are authorized to establish mitigation banks,
    subject to GLO approval (TEX. REV. CIV. STAT. ANN. art. 542 1(u)).

    Exemptions

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. Excepted
    from this provision are activities exempted from the requirement for a permit for the discharge of

    Texas Coastal Management Program Final EIS   Part II 4-41                          August 1996

    dredged or fill material, described in Code of Federal Regulations, Title 33, �323.4 and/or Code
    of Federal Regulations, Title 40, �232.3, including but not limited to normal fanning,
    silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, and
    harvesting for the production of food, fiber, and forest products, or upland soil and water
    conservation practices. A �401 water quality certification is not required for these activities.

    Mineral Lease Plan of Operations. Mineral lease plans of operations are not currently a
    condition for obtaining a mineral lease from the GLO/SLB.

    Geophysical of Geochemical Permit. Holders of valid oil and gas leases are not required to
    have a geophysical or geochemical permit (TEX. NAT. RES. CODE ANN. �52.322).

    Miscellaneous Easement, Surface Lease, Coastal Lease, and Navigation District Lease.
    None.

    Coastal Easement, and Structure Registration. Piers over the size specified for structure
    registrations are subject to the requirement of a coastal easement as specified in (TEX. NAT.
    RES. CODE ANN. �33.111).

    Cabin Permit. No cabin permit may be required for structures, excavations, or other similar
    structures as long as they are located wholly on the private littoral upland, even though the
    activities may result in the area being inundated by public water (TEX. NAT. RES. CODE ANN.
    �33.122).

    Agency or Subdivision Wetlands Mitigation Bank. Approval of a wetland mitigation bank is
    based upon a proposed Memorandum of Agreement (MOA) and the MOA's compliance with
    national guidelines adopted in November 1995.

    Variances

    Certification of a Federal Permit for the Discharge of Dredged or Fil Material. The RRC
    may waive the requirement for water quality certification (16 TAC �3.93).

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. The
    TNRCC may waive the requirement for water quality certification (30 TAC �279.4).

    Mineral Lease Plan of Operations, Geophysical or Geochemical Permit, Miscellaneous
    Easement, Surface Lease, and Cabin Permit. None.

    Structure Registration. All uses described for structure registrations must be registered with
    the School Land Board (TEX. NAT. RES. CODE ANN. �33.115). There is no statutory
    provision for a variance from this requirement.

    Coastal Easement. There is no statutory provision for varying from the coastal easement
    requirement.

    Texas Coastal Management Program Final EIS   Part II 4-42                         August 1996

    Coastal Lease. There is no statutory provision for varying from the coastal lease requirement
    (TEX. NAT. RES. CODE ANN. �33.105).

    Navigation District Lease. There is no statutory provision expressly granting variance
    authority.

    Agency or Subdivision Wetlands Mitigation Bank. Approval of a wetland mitigation bank is
    based on a proposed MOA.

    Monitoring and Enforcement

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. Members
    and employees of the RRC, on proper identification, may enter public or private property to
    inspect and investigate conditions relating to the quality of water in the state (TEX. NAT. RES.
    CODE ANN. �91.1012). Violations may subject a person to administrative penalties of up to
    $10,000 per day for each violation as well as criminal penalties (TEX. NAT. RES. CODE ANN.
    �81.0531 and �91.002).

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. The
    members of the TNRCC and their agents are entitled to enter any public or private property at
    any reasonable time for the purpose of inspecting and investigating conditions relating to the
    water quality of the state (TEX. WATER CODE ANN. �26.014). Violations may subject a
    person to administrative penalties of up to $10,000 per day for each violation as well as civil and
    criminal penalties (TEX. WATER CODE ANN. �26.136, �26.122, and �26.2121).

    Mineral Lease Plan of Operations. None.

    Geophysical or Geochemical Permit. A violation of the conditions or provisions of the
    geophysical or geochemical permit is a misdemeanor punishable by a fine of not less than $100
    nor more than $1000 per day. (TEX. NAT. RES. CODE ANN. �52.325). All operations are
    subject to inspection and monitoring by the land commissioner or the commissioner's
    representatives at any time. Within 30 days of the expiration of the permit, the permittee must
    file with the commissioner a sworn "summary of activities" report (31 TAC �9.4(f)).

    Miscellaneous Easement. Existing MEs must be renewed periodically. Easements may be
    granted for a term of years. The commissioner may set a perpetual term if it is deemed to be in
    the best interest of the state (TEX. NAT. RES. CODE �51.296). No person may undertake the
    activities described above for MEs on state-owned land without an easement from the
    commissioner or the board. A person without an easement is subject to a penalty of not more
    than $1,000 per day, the removal of the structure, or the filing of a lien (TEX. NAT. RES. CODE
    ANN. �51.302).

    Surface Lease. Failure to obtain a lease prior to engaging in the actions listed above for surface
    leases subjects the actor to a fine of no more than $1,000 per day, removal of the structure, and/or
    filing of a lien on the structure (TEX. NAT. RES. CODE ANN. �51.302). Civil penalties of not
    more than $200 per day per structure on coastal public lands may be assessed (TEX. NAT. RES.
    CODE ANN. �33.112).

    Texas Coastal Management Program Final EIS   Part II 4-43                           August 1996

    Structure Registration. Any owner of littoral property who fails to register with the School
    Land Board the location and dimensions of the pier to be constructed according to the
    specifications described for structure registrations is subject to a civil penalty of no more than
    $200 (TEX. NAT. RES. CODE ANN. �33.116).

    Coastal Easement. Any construction or placement of a structure on coastal public land without
    first obtaining a coastal easement from the General Land Office is subject to a civil penalty of
    not more than $200 (TEX. NAT. RES. CODE ANN. �33.112). Violations can also result in
    penalties of no more than $1,000 per day per violation, the removal of the structure, or the filing
    of a lien (TEX. NAT. RES. CODE ANN. �51.302).

    Coastal Lease. Engaging in regulated activities without a coastal lease will subject the actor to a
    civil penalty of not more than $200 (TEX. NAT. RES. CODE ANN. �33.112). Violations can
    also result in penalties of no more than $1,000 per day per violation, the removal of the structure,
    or the filing of a lien (TEX. NAT. RES. CODE ANN. �51.302).

    Cabin Permit. Failure to obtain a cabin permit is subject to a civil penalty of not less than $50
    nor more than $1,000 (TEX. NAT. RES. CODE ANN. �33.120).

    Navigation District Lease. If lands leased from the state are used by the navigation district for
    any purpose or use not approved by the School Land Board, the lease may be terminated and the
    lands shall revert to the State of Texas (TEX. WATER CODE ANN. �61.116).

    Agency or Subdivision Wetlands Mitigation Bank. The Mitigation Bank Review Team
    (MBRT) must agree to appropriate assessment methods. Selection of the appropriate assessment
    method will be determined on a case-by-case basis. Methods could include the Wetland
    Evaluation Technique, Habitat Evaluation Procedures, or other methods determined appropriate
    by the MBRT, including best professional judgement.

    Arencv's Authority to Regulate or Condition Listed Action to Satisfy TCMP Policy

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. The
    Railroad Commission is required to adopt rules and issue permits as necessary to prevent
    pollution of surface and subsurface water related to oil and gas exploration and production
    activities (TEX. NAT. RES. CODE ANN. �91.101).

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. After a
    public hearing, notice of which shall be given to the permittee, the TNRCC may require the
    permittee to conform to new or additional conditions (TEX. WATER CODE ANN. �26.029).

    Mineral Lease Plan of Operations. The Texas land commissioner may include in the lease any
    provision the commissioner considers necessary for protection of the interests of the state (TEX.
    NAT. RES. CODE ANN. �53.016(b)).

    Geophysical or Geochemical Permit. The commissioner may make rules relating to
    geophysical or geochemical exploration, permits, or permittees the commissioner considers
    appropriate (TEX. NAT. RES. CODE ANN. �52.324 and �53.163).

    Texas Coastal Management Program Final EIS   Part II 4-44                         August 1996

    Miscellaneous Easement. The grant of a miscellaneous easement may contain any provisions
    that the commissioner considers necessary to protect the interests of the state (TEX. NAT. RES.
    CODE ANN. �51.305).

    Surface Lease. If an application for a surface lease is granted, the School Land Board shall
    determine the reasonable terms, conditions, and considerations for the lease (TEX. NAT. RES.
    CODE ANN. �33.104).

    Structure Registration and Coastal Easement. None.

    Coastal Lease. The SLB has the authority to determine the reasonable terms, conditions, and
    consideration for a coastal lease (TEX. NAT. RES. CODE ANN. �33.104).

    Cabin Permit. The School Land Board may not grant an application for a cabin permit which
    would violate the public policy of this state (TEX. NAT. RES. CODE ANN. �33.129).

    Navigation District Lease. After submission of evidence, the School Land Board shall
    authorize the issuance or denial of the proposed navigation district lease and shall determine any
    other conditions necessary to best serve the interests of the general public (TEX. WATER CODE
    ANN. �61.116).

    Agency or Subdivision Wetlands Mitigation Bank. The GLO must approve a mitigation bank
    prior to the establishment and maintenance of such a bank (TEX. REV. CIV. STAT. ANN. art.
    5421(u)).

    Texas Coastal Management Program Final EIS   Part II 4-45                           August 1996

    POLICY CATEGORY 9: CONSTRUCTION OF WATERFRONT FACILITIES AND
                                OTHER STRUCTURES ON SUBMERGED LANDS

    State Acencv Action and Manaced Uses

    SLB - Mineral Lease Plan of Operations
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(1))

    Oil and gas and mineral leases including drilling activities, alterations to the natural landscape,
    surface and bottom-hole location of the initial well, location of additional planned wells and
    production facilities, location of shipping fairways and anchorage areas, anticipated routes for
    pipelines, and location of routes of dredging required for all production-related activities, such as
    pipelines, well-drilling, and construction of facilities.

    GLO - Geophysical or Geochemical Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(2))

    Geophysical exploration means a survey or investigation conducted to discover or locate
    minerals or oil and gas prospects using magnetic, gravity, seismic, and/or electrical techniques.
    Geochemical exploration means a survey or investigation conducted to discover or locate
    minerals or oil and gas prospects using techniques involving soil sampling and analysis (TEX.
    NAT. RES. CODE ANN. �52.321 and �53.161).

    GLO - Miscellaneous Easement (ME)
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(4))

    MEs are required for construction and placement of telephone, telegraph, electric transmission,
    and power lines; oil pipelines; gas pipelines and sulphur pipelines; other electric lines and
    pipelines of any nature; irrigation canals, laterals, and water pipelines; roads; and any other
    purpose the commissioner considers to be in the best interests of the state (TEX. NAT. RES.
    CODE ANN. �51.291). MEs are also required for electric substations, pumping stations, loading
    racks, and tank farms on state land other than land owned by the University of Texas System
    (TEX. NAT. RES. CODE ANN. �51.292).

    GLO - Surface Lease
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(6))

    Unsold public school land and asylum land may be leased for agricultural, grazing, or
    commercial purposes (TEX. NAT. RES. CODE ANN. �51.121).

    GLO - Structure Registration
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(7))

    Construction of piers by littoral property owners for noncommercial use if pier is 100 feet or less
    in length and 25 feet or less in width, and requires no filling or dredging (TEX. NAT. RES.
    CODE ANN. �33.115).

    Texas Coastal Management Program Final EIS    Part II 4-46                          August 1996

                  SLB - Coastal Easement
    Is (TEX. NAT. RES. CODE ANN. �33.2053(a)(3))

                  Dredging of basins and channels on state-owned submerged land; construction of piers, docks,
                  marinas, bulkheads, seawalls, and other waterfront structures on state-owned submerged land.
                  The School Land Board may also grant easement rights to the owner of adjacent littoral property
                  authorizing the placement or location of a structure on coastal public land for purposes connected
                  with the ownership of littoral property (TEX. NAT. RES. CODE ANN. �33.111).

                  SLB - Coastal Lease
                  (TEX. NAT. RES. CODE ANN. �33.2053(a)(5))

                  Coastal public land may be leased to: (1) the Texas Parks and Wildlife Department (TPWD) or to
                  any eligible city or county for public recreational purposes; (2) the TPWD for management of
                  estuarine preserves; (3) any nonprofit, tax-exempt environmental organization approved by the
                  School Land Board for the purpose of managing a wildlife refuge; and (4) any scientific or
                  educational organization or institution for conducting scientific research (TEX. NAT. RES.
                  CODE ANN. �33.105 and �33.109).

                  SLB - Cabin Permit
                  (TEX. NAT. RES. CODE ANN. �33.2053(a)(8))

                  Permitting of limited continued use of previously unauthorized structures on coastal public land
                  if the use is sought by one who is claiming an interest in the structure but is not incident to the
                  ownership of the littoral property (TEX. NAT. RES. CODE ANN. �33.119). Previously
                  unauthorized structures for which permits are obtained may be used only for noncommercial,
                  recreational purposes (TEX. NAT. RES. CODE ANN. �33.128).

                  SLB - Navigation District Lease
                  (TEX. NAT. RES. CODE ANN. �33.2053(a)(9))

                  The School Land Board may lease state-owned land to eligible navigation districts only for
                  purposes reasonably related to the promotion of navigation. Navigation includes marine
                  commerce and immediately related activities, including but not limited to port development;
                  channel construction and maintenance; industrial site locations, transportation, shipping and
                  storage facilities; pollution abatement facilities; and all other activities necessary or appropriate
                  to the promotion of marine commerce. In applying for leases, districts which will require
                  dredging, filling, or bulkheading must provide, among other requirements, a draft environmental
                  impact statement assessing the effect of the proposed use on the environment, which statement
                  shall generally conform to the requirements of the National Environmental Policy Act. The
                  district must also provide proof satisfactory to the board establishing the public convenience and
                  necessity for acquisition of lands sought to be leased (TEX. WATER CODE ANN. �61.116).

                  GLO - Agency or Subdivision Wetlands Mitigation Bank
    is (TEX. NAT. RES. CODE ANN. �33.2053(a)(11))

                  The GLO, in conjunction with the U.S. Army Corps of Engineers, U.S. Environmental Protection

                  Texas Coastal Management Program Final EIS   Part II 4-47                         August 1996

    Agency (EPA), U.S. Fish and Wildlife Service, National Marine Fisheries Service, Texas Parks
    and Wildlife Department, and Texas Natural Resource Conservation Commission (Mitigation
    Bank Review Team), approves parcels of real property proposed for a mitigation bank (TEX.0
    REV. CIV. STAT. ANN. art. 542 1 (u) and Interagency Guidelines for Development and Use of
    Mitigation Banks, GLO et al., 6-93)).

    Policies

    The GLO and the SLB, in governing development on state submerged lands, shall comply with
    the policies in this category when approving oil, gas, and other mineral lease plans of operations
    and granting surface leases, easements, and permits and adopting rules under the Texas Natural
    Resources Code, Chapters 32, 33 and 5 1-53, and Texas Water Code, Chapter 6 1.

      I1.   Development on submerged lands shall comply with the policies in this category.

           A.     Marinas shall be designed and, to the greatest extent practicable, sited so that tides
                   and currents will aid in flushing of the site or renew its water regularly.

           B.     Marinas designed for anchorage of private vessels shall provide facilities for the
                   collection of waste, refu~se, trash, and debris.

           C.     Marinas with the capacity for long-term anchorage of more than ten vessels shall
                   provide pump-out facilities for marine toilets, or other such measures or facilities
                   that provide an equal or better level of water quality protection.

           D.     Marinas, docks, piers, wharves and other structures shall be designed and, to the
                   greatest extent practicable, sited to avoid and otherwise minimize adverse effects
                   on critical areas from boat traffic to and from those structures.-

           E.     Construction of docks, piers, wharves, aind other structures shall be preferred
                   instead of authorizing dredging of channels or basins or filling of submerged
                   lands to provide access to coastal waters if such construction is practicable,
                   environmentally preferable, and will not interfere with commercial navigation.

           F.     Piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs
                  (including artificial reefs for compensatory mitigation) shall'be limited to the
                  minimum necessary to serve the project purpose and shall be constructed in a
                  manner that:

                  i.     does not significantly interfere with public navigation;

                  ii.    does not significantly interfere with the natural coastal processes which
                          supply sediments to shore areas or otherwise exacerbate erosion of shore
                          areas;

                  iii.    avoids and otherwise minimizes shading of critical areas and other adverse
                          effects.

    Texas Coastal Management Program Final EIS   Part 11 4-48                          August 1996

                   G.     Facilities shall be located at sites or designed and constructed to the greatest
                           extent practicable to avoid and otherwise minimize the potential for adverse
    Is ~~~~~~~effects from:

                           1.     construction and maintenance or other development associated with the
                                   facility;

                           ii.    direct release to coastal waters and critical areas of pollutants form oil or
                                  hazardous substance spills or stormwater runoff; and

                           iii.    deposition of airborne pollutants in coastal waters and critical areas.

                   H.     Where practicable, pipelines, transmission lines, cables, roads, causeways, and
                           bridges shall be located in existing rights-of-way or previously disturbed areas if
                           necessary to avoid or minimize adverse effects and if it does not result in
                           unreasonable risks to human health, safety, and welfare.

                       1. To the greatest extent practicable, construction of facilities shall occur at sites and
                           times selected to have the least adverse effects on recreational uses of CNRAs and
                           on spawning or nesting seasons or seasonal migrations of terrestrial and aquatic
                           wildlife.

                   J.     Facilities shall be located at sites which avoid the impoundment and draining of
                           coastal wetlands. If impoundment or draining cannot be avoided, adverse effects
                           to the impounded or drained wetlands shall be mitigated in accordance with the
                           sequencing requirements of Policy Category 8. To the greatest extent practicable,
                           facilities shall be located at sites at which expansion will not result in
                           development in critical areas.

                   K.     Where practicable, piers, docks, wharves, bulkcheads, jetties, groins, fishing
                           cabins, and artificial reefs shall be constructed with materials that will not cause
                           any adverse effects on coastal waters or critical areas.

                   L.     Developed sites shall be returned as closely as practicable to pre-project
                           conditions upon completion or cessation of operations by the removal of facilities
                           and restoration of any significantly degraded areas, unless:

                           i.     the facilities can be used for public purposes or contribute to the
                                  maintenance or enhancement of coastal water quality, critical areas,
                                  beaches, submerged lands, or shore areas; or

                           11.    restoration activities would fur-ther degrade CNRAs.

                   M.     Water-dependent uses and facilities shall receive preference over those uses and
                           facilities that are not water-dependent.

           Texas Coastal Management Program Final EIS   Part 11 4-49                           August 1996

           N.     Nonstructural erosion response methods such as beach nourishment, sediment
                   bypassing, nearshore sediment berms, and planting of vegetation shall be
                   preferred instead of structural erosion response methods.
           0.    Major residential and recreational waterfront facilities shall to the greatest extent
                   practicable accommodate public access to coastal waters and preserve the public's
                   ability to enjoy the natural aesthetic values of coastal submerged lands.

           P.     Activities on submerged land shall avoid and otherwise minimize any significant
                   interference with the public's use of and access to such lands.

           Q.     Erosion of Gulf beaches and coastal shore areas caused by construction or
                   modification of jetties, breakwaters, groins, or shore stabilization projects shall be
                   mitigated to the extent the costs of mitigation are reasonably proportionate to the
                   benefits of mitigation. Factors that shall be considered in determining whether the
                   costs of mitigation are reasonably proportionate to the cost of the construction or
                   modification and benefits include, but are not limited to, environmental benefits,
                   recreational benefits, flood or storm protection benefits, erosion prevention
                   benefits, and economic development benefits.

      2.   To the extent applicable to the public beach, these policies are supplemental to any
           further restrictions or requirements relating to the beach access and use rights of the
           public.

    Manazement Authoritv and Administration

    The SLB, according to rules set out in 31 TAC Chapter 155, grants easements for the
    construction of waterfront structures on state submerged land. The SLB must comply with the
    TCMP policies in �501.14(I) by virtue of their inclusion in 31 TAC Ch. 16 when granting a
    coastal easement and when adopting rules pursuant to the siting, design, and construction of
    these structures.

    The SLB reviews projects to ensure conformity with the policies, practices, and procedures in
    these rules. In addition, SLB rules contain more specific guidelines for evaluating a proposed
    waterfront structure include siting to avoid restriction of water circulation, navigation, or public
    use of the waters; design considerations such as joint use of a moorage facility by a subdivision,
    motel, or multiple dwelling, and the use of a pier or catwalk in preference to solid fills to provide
    needed access across biologically productive shallows and marshes to navigable waters; and
    requirements that facilities provide proper handling of waste, refuse, and petroleum products
    where applicable, as required by the TNRCC.

    Under 31 TAC � 1 55.3, an owner of adjacent littoral property must obtain an easement from the
    SLB prior to the placement or location of a structure on state submerged lands for purposes
    connected with the ownership of littoral property. The owner of littoral property may construct a
    pier which is not to be used for commercial purposes and does not exceed I100 feet in length or

    25 feet in width by obtaining a one-time structure registration from the SLB. While a permit is

    Texas Coastal Management Program Final EIS   Part II 4-50                          August 1996

    not required, the location and dimensions of the pier must be included in the structure
    registration. No filling or dredging is permitted without an easement from the SLB.

    The SLB, according to rules set out in 31 TAC Chapter 155, grants easements for the
    construction of marinas on state-owned submerged land and for associated dredging of basins
    and channels. The SLB must comply with the policies in this category when granting a coastal
    easement or adopting rules for marina activities. The SLB reviews projects to ensure their
    conformity with the policies, practices, and procedures in these rules. Specific guidelines for
    evaluating a proposed marina include project siting to minimize dredging, disruption of currents,
    and the need for excavation of shore areas. Project design considerations include extending
    dockage to deep water as an alternative to dredging for navigational access, avoiding dead-end or
    deep canals without flushing, and designing turning basins or navigation channels to prevent
    long-term degradation of water quality. Marinas are also required to provide adequate facilities
    for waste disposal.

    The alignment of channels or canals should make maximum use of natural or existing channels.
    Design and alignment should also minimize disruption of natural sheetflow, water flow, and
    drainage systems. Dredging is to be conducted in a manner that minimizes turbidity. Canals and
    basins are to avoid oyster reefs and highly productive wetland areas. Dredging of channels
    through highly productive coastal public lands is discouraged, and such channels are approved
    only in unusual circumstances.

    All marina development on coastal public lands must be undertaken in a manner that will prevent
    pollution. The easement holder is responsible for using all reasonable means for recapturing all
    pollutants, and for all damage to public and private property from pollution caused by faiure to
    provide adequate facilities for waste and garbage.

    The SLB, according to rules set out in 31 TAC Chapter IS55, grants easements for the
    construction of piers, docks, wharves, and other waterfront structures on state submerged land.
    The SLB must comply with the policies in this category when granting a coastal easement or
    adopting rules pursuant to the siting, design, and construction of these structures.

    The SLB reviews projects to ensure conformity with the policies, practices, and procedures in
    these rules. Specific guidelines for evaluating a proposed pier, dock, or wharf include siting to
    avoid restriction of water circulation, navigation, or public use of the waters; design
    considerations, such as joint use of a moorage facility by a subdivision, motel, or multiple
    dwelling, and the use of a pier or catwalk in preference to solid fills to provide needed access
    across biologically productive shallows and marshes to navigable waters; and requirements that
    facilities provide proper handling of waste, refuse, and petroleum products where applicable, as
    required by the TNRCC.

    Under 31 TAC � 1 55.3, an easement must be obtained from the SLB by the owner of adjacent
    littoral property prior to the placement or location of a structure on coastal public lands for
    purposes connected with the ownership of littoral property. The owner of littoral property may
    construct a pier which is not for commercial purposes and does not exceed I100 feet in length or
    25 feet in width by obtaining a one-time structure registration from the SLB. W~hile a permit is

    Texas Coastal Management Program Final EIS   Part II 4-51                          August 1996

    not required, the location and dimensions of any pier must be included in the structure
    registration. No filling or dredging is permitted without an easement from the SLB.

    The SLB, according to rules set out in 31 TAC Chapter 155, grants easements for the
    construction ofjetties, groins, breakwaters, bulkheads, and seawalls on state submerged land.
    The SLB must comply with the policies in this category when granting a coastal easement and
    when adopting rules pursuant to the siting, design, and construction of these structures. The SLB
    reviews projects to ensure conformity with the policies, practices, and procedures in these rules.

    Specific guidelines for evaluating a proposed jetty, groin, or breakwater include an analysis to
    ensure that the structure does not create adverse sediment transportation patterns that induce
    erosion or undesirable shoaling in adjacent areas, and that the structure does not unduly interfere
    with public use. In general, bulkheads or seawalls should be located no fur-ther seaward than the
    mean high water line and designed so that reflected wave energy does not destroy stable marine
    bottom or constitute a safety hazard. Where possible, sloping riprap is to be used rather than a
    vertical seawall or bulkhead. Bulkhead construction should avoid hard angle turns that may
    collect trash or cause shoaling or flushing problems. Bulkhead construction is normally denied if
    it will lead to the destruction of a significant public marsh or grassflat.

    Section 501.14(I)(1)(Q) requires mitigation of erosion due to construction or modification of
    jetties, breakwaters, groins, or shore stabilization projects to the extent the costs of mitigation are
    reasonably proportionate to the benefits of mitigation. The intent of this provision is to require
    mitigation when the benefits of the mitigation are reasonably proportionate to both the costs of
    the modification or construction and the costs of the mitigation. However, mitigation is not
    required in individual cases where it is not cost-effective or where it would result in only
    inconsequential benefits.

    Under Chapter 51 of the Texas Natural Resources Code and 31 TAC Chapter 13, the GLO may
    lease public land for commercial purposes, including recreational activity, under the terms and
    conditions set by the commissioner. Approvals of Imaes under this authority must be in
    compliance with these policies.

    Under Chapter 33 of the Texas Natural Resources Code and 31 TAC Chapter 155, easements
    may be granted for structures on coastal public lands, including those for purposes of public
    recreation. Easements under this authority must be in compliance with the policies in this
    category. The rules governing easements for the construction of public recreational facilities
    require that certain criteria be considered. Filling for a proposed structure in a marsh or
    submerged aquatic vegetation is generally denied. Authorization of such filling will only be
    considered for a water-dependent use or public use an relatively unproductive public lands.
    Shoreline fills should be designed and located so that no significant damage to existing
    ecological values or natural resources and no alteration of natural currents will occur. Perimeters
    of fills should be stabilized with vegetation, retaining walls, riprap, or other mechanisms to
    prevent erosion. Material should be of such quality that it will not cause water quality
    degradation.

    Coastal public land means all or any portion of state-owned submerged land, the water overlying
    that land, and al state-owned islands or portions of islands in the coastal zone. Submerged land

    Texas Coastal Management Program Final EIS   Part 11 4-52                          August 1996

    is any land extending from the boundary between the land of the state and the littoral owners
    seaward to the low-water mark on any saltwater lake, bay, inlet, estuary, or inland water within
    the tidewater limits, and any land lying beneath the body of water, but shall exclude beaches
    bordering on the open Gulf of Mexico and the land lying beneath this water (TEX. NAT. RES.
    CODE ANN. �33.004(6)(1 1)).

    Oil and gas leases may be issued for islands, saltwater lakes, bays, inlets, and marshes owned by
    the state within tidewater limits; rivers and channels owned by the state; the portion of the Gulf
    of Mexico within the jurisdiction of the state; all unsold surveyed and unsurveyed public school
    land; and all land sold with a reservation of minerals to the state under TEX. NAT. RES. CODE
    ANN. �51.054 in which the state has retained leasing rights. A mineral lease plan of operations
    is not currently a condition of the lease application process. Applications for mineral leases may
    contain any information the commissioner requires (TEX. NAT. RES. CODE ANN. �53.015).

    Geophysical or geochemical permits are required for all exploration on public school land, which
    includes all land dedicated to the permanent free school fund and specifically includes land with
    a mineral classification in which the state has retained the oil and gas interest and areas within
    tidewater limits (TEX. NAT. RES. CODE ANN. �52.32 1). Except for a person who has a valid
    oil and gas lease on public school land, a person may not conduct geophysical and geochemical
    exploration without a permit (TEX. NAT. RES. CODE ANN. �52.322).

    MEs are required for land and water uses described above for MEs across, through, and under
    unsold public school land, the portion of the Gulf of Mexico within the jurisdiction of the state,
    the state-owned riverbeds and beds of navigable streams in the public domain, and all islands,
    saltwater lakes, bays, inlets, marshes, and reefs owned by the state within tidewater limits (TEX.
    NAT. RES. CODE ANN. �51.291).

    Permits are required for the land uses described above for cabin permits. Permits may not be
    granted for continued use of a structure located within 1000 feet of: (1) privately owned littoral
    property, without written consent of the littoral owner; (2) any federal or state wildlife sanctuary
    or refuge; or (3) any federal, state, county, or city park bordering on coastal public land (TEX.
    NAT. RES. CODE ANN. �31.124).

    Any state agency and all political subdivisions are authorized to establish mitigation banks,
    subject to GLO approval (TEX. REV. CIV. STAT. ANN. art. 5421(u)).

    Exemptions

    Mineral Lease Plan of Operations. Mineral lease plans of operations are not currently a
    condition for obtaining a mineral lease from the GLO/SLB.

    Geophysical of Geochemical Permit. Holders of valid oil and gas leases are not required to
    have a geophysical or geochemical permit (TEX. NAT. RES. CODE ANN. �52.322).

    Miscellaneous Easement, Surface Lease, Coastal Lease, and Navigation District Lease.
    None.

    Texas Coastal Management Program Final EIS   Part II 4-53                          August 1996

    Coastal Easement, and Structure Registration. Piers over the size specified for structure
    registrations are subject to the requirement of a coastal easement as specified in (TEX. NAT.
    RES. CODE ANN. �33.111).

    Cabin Permit. No cabin permit may be required for structures, excavations, or other similar
    structures as long as they are located wholly on the private littoral upland, even though the
    activities may result in the area being inundated by public water (TEX. NAT. RES. CODE ANN.
    �33.122).

    Agency or Subdivision Wetlands Mitigation Bank. Approval of a wetland mitigation bank is
    based upon a proposed Memorandum of Agreement (MOA) and the MOA's compliance with
    national guidelines adopted in November 1995.

    Variances

    Mineral Lease Plan of Operations, Geophysical or Geochemical Permit, Miscellaneous
    Easement, Surface Lease, and Cabin Permit. None.

    Structure Registration. All uses described for structure registrations must be registered with
    the School Land Board (TEX. NAT. RES. CODE ANN. �33.115). There is no statutory
    provision for a variance from this requirement.

    Coastal Easement. There is no statutory provision for varying from the coastal easement
    requirement.

    Coastal Lease. There is no statutory provision for varying from the coastal lease requirement
    (TEX. NAT. RES. CODE ANN. �33.105).

    Navigation District Lease. There is no statutory provision expressly granting variance
    authority.

    Agency or Subdivision Wetlands Mitigation Bank. Approval of a wetland mitigation bank is
    based on a proposed MOA.

    Monitorinra and Enforcement

    Mineral Lease Plan of Operations. None.

    Geophysical or Geochemical Permit. A violation of the conditions or provisions of the
    geophysical or geochemical permit is a misdemeanor punishable by a fine of not less than $100
    nor more than $1000 per day. (TEX. NAT. RES. CODE ANN. �52.325). All operations are
    subject to inspection and monitoring by the land commissioner or the commissioner's
    representatives at any time. Within 30 days of the expiration of the permit, the permittee must
    file with the commissioner a sworn "summary of activities" report (31 TAC �9.4(f)).

    Miscellaneous Easement. Existing MEs must be renewed periodically. Easements may be i
    granted for a term of years. The commissioner may set a perpetual term if it is deemed to be in

    Texas Coastal Management Program Final EIS   Part IH 4-54                       August 1996

         the best interest of the state (TEX. NAT. RES. CODE �51.296). No person may undertake the
         activities described above for MEs on state-owned land without an easement from the
         commissioner or the board. A person without an easement is subject to a penalty of not more
         than $1,000 per day, the removal of the structure, or the filing of a lien (TEX. NAT. RES. CODE
         ANN. �51.302).

         Surface Lease. Failure to obtain a lease prior to engaging in the actions listed above for surface
         leases subjects the actor to a fine of no more than $1,000 per day, removal of the structure, and/or
         filing of a lien on the structure (TEX. NAT. RES. CODE ANN. �51.302). Civil penalties of not
         more than $200 per day per structure on coastal public lands may be assessed (TEX. NAT. RES.
         CODE ANN. �33.112).

         Structure Registration. Any owner of littoral property who fails to register with the School
         Land Board the location and dimensions of the pier to be constructed according to the
         specifications described for structure registrations is subject to a civil penalty of no more than
         $200 (TEX. NAT. RES. CODE ANN. �33.116).

         Coastal Easement. Any construction or placement of a structure on coastal public land without
         first obtaining a coastal easement from the General Land Office is subject to a civil penalty of
         not more than $200 (TEX. NAT. RES. CODE ANN. �33.112). Violations can also result in
         penalties of no more than $1,000 per day per violation, the removal of the structure, or the filing
         of a lien (TEX. NAT. RES. CODE ANN. �51.302).
    O ~~~~~~~~~~~~~~~~~~~~~~~~~
         Coastal Lease. Engaging in regulated activities without a coastal lease will subject the actor to a
         civil penalty of not more than $200 (TEX. NAT. RES. CODE ANN. �33.112). Violations can
         also result in penalties of no more than $1,000 per day per violation, the removal of the structure,
         or the filing of a lien (TEX. NAT. RES. CODE ANN. �51.302).

         Cabin Permit. Failure to obtain a cabin permit is subject to a civil penalty of not less than $50
         nor more than $1,000 (TEX. NAT. RES. CODE ANN. �33.120).

         Navigation District Lease. If lands leased from the state are used by the navigation district for
         any purpose or use not approved by the School Land Board, the lease may be terminated and the
         lands shall revert to the State of Texas (TEX. WATER CODE ANN. �61.116).

         Agency or Subdivision Wetlands Mitigation Bank. The Mitigation Bank Review Team
         (MBRT) must agree to appropriate assessment methods. Selection of the appropriate assessment
         method will be determined on a case-by-case basis. Methods could include the Wetland
         Evaluation Technique, Habitat Evaluation Procedures, or other methods determined appropriate
         by the MBRT, including best professional judgement.

         Agencv's Authority to Reaulate or Condition Listed Action to Satisfy TCMP Policy

         Mineral Lease Plan of Operations. The Texas land commissioner may include in the lease any
         provision the commissioner considers necessary for protection of the interests of the state (TEX.
         NAT. RES. CODE ANN. �53.016(b)).

         Texas Coastal Management Program Final EIS   Part II 4-55                         August 1996

    Geophysical or Geochemical Permit. The commissioner may make rules relating to
    geophysical or geochemical exploration, permits, or permittees the commissioner considers
    appropriate (TEX. NAT. RES. CODE ANN. �52.324 and �53.163).

    Miscellaneous Easement. The grant of a miscellaneous easement may contain any provisions
    that the commissioner considers necessary to protect the interests of the state (TEX. NAT. RES.
    CODE ANN. �51.305).

    Surface Lease. If an application for a surface lease is granted, the School Land Board shall
    determine the reasonable terms, conditions, and considerations for the lease (TEX. NAT. RES.
    CODE ANN. �33.104).

    Structure Registration and Coastal Easement. None.

    Coastal Lease. The SLB has the authority to determine the reasonable terms, conditions, and
    consideration for a coastal lease (TEX. NAT. RES. CODE ANN. �33.104).

    Cabin Permit. The School Land Board may not grant an application for a cabin permit which
    would violate the public policy of this state (TEX. NAT. RES. CODE ANN. �33.129).

    Navigation District Lease. After submission of evidence, the School Land Board shall
    authorize the issuance or denial of the proposed navigation district lease and shall determine any
    other conditions necessary to best serve the interests of the general public (TEX. WATER CODE
    ANN. �61.116).

    Agency or Subdivision Wetlands Mitigation Bank. The GLO must approve a mitigation bank
    prior to the establishment and maintenance of such a bank (TEX. REV. CIV. STAT. ANN. art.
    5421(u)).

    Texas Coastal Management Program Final ElS   Part II 4-56                         August 1996

    POLICY CATEGORY 10: DREDGING AND DREDGED MATERIAL DISPOSAL AND
                                PLACEMENT

    State Acencv Action and Manaced Uses

    TNRCC - Certification of a Federal Permit for the Discharge of Dredged or Fill Material
    (TEX. NAT. RES. CODE ANN. �33.2053(0(6))

    Dredging and filling operations that require a federal permit under �404 of the CWA.

    RRC - Certification of a Federal Permit for the Discharge of Dredged or Fill Material
    (TEX. NAT. RES. CODE ANN. �33.2053(c)(3))

    Dredging and filling activities associated with oil and gas exploration, production, or pipeline
    construction that require a federal CWA �404 permit,

    TxIDOT - Acquisition of a Site for the Placement or Disposal of Dredged Material from, or
    the Expansion, Relocation, or Alteration of, the Gulf Intracoastal Waterway
    (TEX. NAT. RES. CODE ANN. �33.2053(D)(1))

    Texas Transportation Commission acquisitions, including but not limited to easements and
    rights-of-way for dredged material disposal sites and for channel expansion, relocation, or
    alteration (TEX. REV. CIV. STAT. ANN. art. 5415e-2, �6(c), Texas Coastal Waterway Act of
    1975).

    SLB - Mineral Lease Plan of Operations
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(1))

    Oil and gas and mineral leases including drilling activities, alterations to the natural landscape,
    surface and bottom-hole location of the initial well, location of additional planned wells and
    production facilities, location of shipping fairways and anchorage areas, anticipated routes for
    pipelines, and location of routes of dredging required for all production-related activities, such as
    pipelines, well-drilling, and construction of facilities.

    GLO - Geophysical or Geochemical Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(2))

    Geophysical exploration means a survey or investigation conducted to discover or locate
    minerals or oil and gas prospects using magnetic, gravity, seismic, and/or electrical techniques.
    Geochemical exploration means a survey or investigation conducted to discover or locate
    minerals or oil and gas prospects using techniques involving soil sampling and analysis (TEX.
    NAT. RES. CODE ANN. �52.321 and �53.161).

    GLO - Miscellaneous Easement
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(4))

    MEs are required for construction and placement of telephone, telegraph, electric transmission,

    Texas Coastal Management Program Final EIS   Part II 4-57                         August 1996

    and power lines; oil pipelines; gas pipelines and sulphur pipelines; other electric lines and
    pipelines of any nature; irrigation canals, laterals, and water pipelines; roads; and any other
    purpose the commissioner considers to be in the best interests of the state (TEX. NAT. RES.
    CODE ANN. �51.291). MEs are also required for electric substations, pumping stations, loading
    racks, and tank farms on state land other than land owned by the University of Texas System
    (TEX. NAT. RES. CODE ANN. �51.292).

    GLO - Surface Lease
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(6))

    Unsold public school land and asylum land may be leased for agricultural, grazing, or
    commercial purposes (TEX. NAT. RES. CODE ANN. �51.121).

    SLB - Structure Registration
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(7))

    Construction of piers by littoral property owners for noncommercial use if pier is 100 feet or less
    in length and 25 feet or less in width, and requires no filling or dredging (TEX. NAT. RES.
    CODE ANN. �33.115).

    SLB - Coastal Easement
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(3))

    Dredging of basins and channels on state-owned submerged land; construction of piers, docks,
    marinas, bulkheads, seawalls, and other waterfront structures on state-owned submerged land.
    The School Land Board may also grant easement rights to the owner of adjacent littoral property
    authorizing the placement or location of a structure on coastal public land for purposes connected
    with the ownership of littoral property (TEX. NAT. RES. CODE ANN. �33.111).

    SLB - Coastal Lease
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(5))

    Coastal public land may be leased to: (1) the Texas Parks and Wildlife Department (TPWD) or to
    any eligible city or county for public recreational purposes; (2) the TPWD for management of
    estuarine preserves; (3) any nonprofit, tax-exempt environmental organization approved by the
    School Land Board for the purpose of managing a wildlife refuge; and (4) any scientific or
    educational organization or institution for conducting scientific research (TEX. NAT. RES.
    CODE ANN. �33.105 and �33.109).

    SLB - Cabin Permit
    (TEX. NAT. RES. CODE ANN. �33.2053(a)(8))

    Permitting of limited continued use of previously unauthorized structures on coastal public land
    if the use is sought by one who is claiming an interest in the structure but is not incident to the
    ownership of the littoral property (TEX. NAT. RES. CODE ANN. �33.119). Previously
    unauthorized structures for which permits are obtained may be used only for noncommercial,
    recreational purposes (TEX. NAT. RES. CODE ANN. �33.128).

    Texas Coastal Management Program Final EIS   Part II 4-58                           August 1996

                   SLB - Navigation District Lease
    is (TEX. NAT. RES. CODE ANN. �33.2053(a)(9))

                   The School Land Board may lease state-owned land to eligible navigation districts only for
                  purposes reasonably related to the promotion of navigation. Navigation includes marine
                   commerce and immediately related activities, including but not limited to port development;
                  channel construction and maintenance; industrial site locations, transportation, shipping and
                  storage facilities; pollution abatement facilities; and all other activities necessary or appropriate
                  to the promotion of marine commerce. In applying for leases, districts which will require
                  dredging, filling, or bulkheading must provide, among other requirements, a draft environmental
                  impact statement assessing the effect of the proposed use on the environment, which statement
                  shall generally conform to the requirements of the National Environmental Policy Act. The
                  district must also provide proof satisfactory to the board establishing the public convenience and
                  necessity for acquisition of lands sought to be leased (TEX. WATER CODE ANN. �61.116).

                  GLO - Agency or Subdivision Wetlands Mitigation Bank
                  (TEX. NAT. RES. CODE ANN. �33.2053(a)(11))

                  The GLO, in conjunction with the U.S. Army Corps of Engineers, U.S. Environmental Protection
                  Agency (EPA), U.S. Fish and Wildlife Service, National Marine Fisheries Service, Texas Parks
                  and Wildlife Department, and Texas Natural Resource Conservation Commission (Mitigation
                  Bank Review Team), approves parcels of real property proposed for a mitigation bank (TEX.
                  REV. CIV. STAT. ANN  art. 5421(u) and Interagency Guidelines for Development and Use of
                  Mitigation Banks, GLO et al., 6-93).

                  TPWD - Permit for Disturbing Marl, Sand, Shell, or Gravel on State-Owned Land
                  (TEX. NAT. RES. CODE ANN. �33.2053(h)(3))

                  TPWD issues permits for the taking of marl, sand, gravel, shell, or mudshell from the submerged
                  lands of the state (PARKS & WILDLIFE CODE ANN. �86.002).

                  Policies

                  The TNRCC and the RRC shall comply with the policies below when issuing certifications and
                  adopting rules under Texas Water Code, Chapter 26, and the Texas Natural Resources Code,
                  Chapter 91, governing certification of compliance with surface water quality standards for
                  federal actions and permits authorizing dredging or the discharge or placement of dredged
                  material.

                  TxDOT shall comply with the policies in this category when adopting rules and taking actions as
                  local sponsor of the Gulf Intracoastal Waterway under Texas Civil Statutes, article 5415e-2. The
                  exercise of eminent domain by the Texas Transportation Commission under Article 5415e-2
                  must relate to the maintenance, expansion, relocation, or alteration of the main channel, not
                  including tributaries or branches, of the shallow-draft navigation channel running from the
                  Sabine River southward along the Texas coast to the Brownsville Ship Channel near Port Isabel
                  that is generally referred to as the Gulf Intracoastal Waterway (GIWW).

                  Texas Coastal Management Program Final EIS   Part I 4-59                         August 1996

    The GLO and the SLB shall comply with the policies in this category when approving oil, gas,
    and other mineral lease plans of operations and granting surface leases, easements, and permits
    and adopting rules under the Texas Natural Resources Code, Chapters 32, 33, and 51-53, and I
    Texas Water Code, Chapter 61, for dredging and dredged material disposal and placement.

    The TPWD shall comply with the policies in this category when adopting rules at 31 TAC
    Chapter 57 (relating to Fisheries) governing dredging and dredged material disposal and
    placement. The TPWD shall comply with the policies in 31 TAC �501.14(j)(8) when adopting
    rules and issuing permits under Texas Parks and Wildlife Code, Chapter 86, governing the
    mining of sand, shell, marl, gravel, and mudshell.

      1.   Dredging and the disposal and placement of dredged material shall avoid and otherwise
           minimize adverse effects to coastal waters, submerged lands, critical areas, coastal shore
           areas, and Gulf beaches to the greatest extent practicable. The policies in this category
           are supplemental to any fur-ther restrictions or requirements relating to the beach access
           and use rights of the public. In implementing this policy category, cumulative and
           secondary adverse effects of dredging and the disposal and placement of dredged material
           and the unique characteristics of affected sites shall be considered.

           A.     Dredging and dredged material disposal and placement shall not cause or
                  contribute, after consideration of dilution and dispersion, to violation of any
                  applicable surface water quality standards established under Policy Category 6.

           B.     Except. as otherwise provided in subparagraph (D) of this paragraph, adverse
                  effects on critical areas from dredging and dredged material disposal or placement
                  shall be avoided and otherwise minimized, and appropriate and practicable
                  compensatory mitigation shall be required, in accordance with Policy Category S.

           C.     Except as provided in subparagraph (D) of this paragraph, dredging and the
                  disposal and placement of dredged material shall not be authorized if-

                  i.     there is a practicable alternative that would have fewer adverse effects on
                          coastal waters, submerged lands, critical areas, coastal shore areas, and
                          Gulf beaches, so long as that alternative does not have other significant
                          adverse effects;

                  Ii     all appropriate and practicable steps have not been taken to minimize
                          adverse effects on coastal waters, submerged lands, critical areas, coastal
                          shore areas, and Gulf beaches; or

                  iii.   significant degradation of critical areas under Policy Category 8 would
                          result.

           D.     A dredging or dredged material disposal or placement project that would be
                  prohibited solely by application of subparagraph (C) of this paragraph may be
                  allowed if it is determined to be of overriding importance to the public and

    Texas Coastal Management Program Final EIS   Part 11 4-60                        August 1996

                  national interest in light of economic impacts on navigation and maintenance of
                   commercially navigable waterways.

      2.   Adverse effects from dredging and dredged material disposal and placement shall be
           minimized as required in paragraph (1) of this policy. Adverse effects can be minimized
           by employing the techniques in this paragraph where appropriate and practicable.

           A.     Adverse effects from dredging and dredged material disposal and placement can
                  be minimized by controlling the location and dimensions of the activity. Some of
                  the ways to accomplish this include:

                  1.     locating and confining discharges to minimize smothering of organisms;

                  ii.    locating and designing projects to avoid adverse disruption of water
                          inundation patterns, water circulation, erosion and accretion processes, and
                          other hydrodynamic processes;

                  iii.   using existing or natural channels and basins instead of dredging new
                          channels or basins, and discharging materials in areas that have been
                          previously disturbed or used for disposal or placement of dredged
                          material;

                  iv.    limiting the dimensions of channels, basins, and disposal and placement
                          sites to the minimum reasonably required to serve the project purpose,
                          including allowing for reasonable overdredging of channels and basins,
                          and taking into account the need for capacity to accommodate future
                          expansion without causing additional adverse effects;

                  V.     discharging materials at sites where the substrate is composed of material
                          similar to that being discharged;

                  vi.    locating and designing discharges to minimize the extent of any plume and
                          otherwise control dispersion of material; and

                  vii.   avoiding the impoundment or drainage of critical areas.

           B.     Dredging and disposal and placement of material to be dredged shal comply with
                  applicable standards for sediment toxicity. Adverse effects from constituents
                  contained in materials discharged can be minimized by treatment of or limitations
                  on the material itself. Some ways to accomplish this include:

                  1.     disposal or placement of dredged material in a manner that maintains
                          physiochemical conditions at discharge sites and limits or reduces the
                          potency and availability of pollutants;

                  Ii     limiting the solid, liquid, and gaseous components of material discharged;

    Texas Coastal Management Program Final EIS   Part II 4-61                        August 1996

                   iii.    adding treatment substances to the discharged material; and

                   iv.    adding chemical flocculants to enhance the deposition of suspended0
                          particulates in confined disposal areas.

           C.     Adverse effects from dredging and dredged material disposal or placement can be
                  minimized through control of the materials discharged. Some ways of
                  accomplishing this include:

                  1.     use of containment levees and sediment basins designed, constructed, and
                          maintained to resist breaches, erosion, slumping, or leaching;

                  Hi.    use of lined containment areas to reduce leaching where leaching of
                          chemical constituents from the material is expected to be a problem;

                  iii.    capping in-place contaminated material or, selectively discharging the
                          most contaminated material first and then capping it with the remaining
                          material;

                  iv.    properly containing discharged material and maintaining discharge sites to
                          prevent point and nonpoint pollution; and

                  V.     timing the discharge to minimize adverse effects from unusually high
                          water flows, wind, wave, and tidal actions.

           D.     Adverse effects from dredging and dredged material disposal or placement can be
                  minimized by controlling the manner in which material is dispersed. Some ways
                  of accomplishing this include:

                  i.     where environmentally desirable, distributing the material in a thin layer;

                  ii.    orienting material to minimize undesirable obstruction of the water current
                          or circulation patterns;

                  iii.    using silt screens or other appropriate methods to confine suspended
                          particulates or turbidity to a small area where settling or removal can
                          occur;

                  iv.    using currents and circulation patterns to mix, disperse, dilute, or
                          otherwise control the discharge;

                  V.     minimizing turbidity by using a diffuser system or releasing material near
                          the bottom;

                  vi.    selecting sites or managing discharges to confine and minimize the release
                          of suspended particulates and turbidity and maintain light penetration for0
                          organisms; and

    Texas Coastal Management Program Final EIS   Part 11 4-62                        August 1996

                   vii.   setting limits on the amount of material to be discharged per unit of time
                          or volume of receiving waters.

           E.     Adverse effects from dredging and dredged material disposal or placement
                   operations can be minimized by adapting technology to the needs of each site.
                   Some ways of accomplishing this include:

                   i.     using appropriate equipment, machinery, and operating techniques for
                          access to sites and transport of material, including those designed to
                          reduce damage to critical areas;

                   ii.    having personnel on site adequately trained in avoidance and minimization
                          techniques and requirements; and

                   ini.    designing temporary and permanent access roads and channel spanning
                          structures using culverts, open channels, and diversions that will pass both
                          low and high water flows, accommodate fluctuating water levels, and
                          maintain circulation and faunal movement.

           F.     Adverse effects on plant and animal populations from dredging and dredged
                   material disposal or placement can be minimized by:

                   i.     avoiding changes in water current and circulation patterns that would
                          interfere with the movement of animals;

                   ii.    selecting sites or managing discharges to prevent or avoid creating habitat
                          conducive to the development of undesirable predators or species that have
                          a competitive edge ecologically over indigenous plants or animals;

                   ii.    avoiding sites having unique habitat or other value, including habitat of
                          endangered species;

                   iv.    using planning and construction practices to institute habitat development
                          and restoration to produce a new or modified environmental state of higher
                          ecological value by displacement of some or all of the existing
                          environmental characteristics;

                  V.     using techniques that have been demonstrated to be effective in
                          circumstances similar to those under consideration whenever possible and,
                          when proposed development and restoration techniques have not yet
                          advanced to the pilot demonstration stage, initiating their use on a small
                          scale to allow corrective action if unanticipated adverse effects occur;

                  vi.    timing dredging and dredged material disposal or placement activities to
                          avoid spawning or migration seasons and other biologically critical time
                          periods; and

    Texas Coastal Management Program Final EIS   Part II 4-63                        August 1996

                   vii.   avoiding the destruction of remnant natural sites within areas already
                          affected by development.

           G.     Adverse effects on human use potential from dredging and dredged material
                   disposal or placement can be minimized by:

                   i.     selecting sites and following procedures to prevent or minimize any
                          potential damage to the aesthetically pleaing features of the site,
                          particularly with respect to water quality;

                   ii.    selecting sites which are not valuable as natural aquatic areas;

                   iii.   timing dredging and dredged material disposal or placement activities to
                          avoid the seasons or periods when human recreational activity associated
                          with the site is most important; and

                  iv.    selecting sites that will not increase incompatible human activity or
                          require frequent dredge or fill maintenance activity in remote fish and
                          wildlife areas.

           1H.    Adverse effects from new channels and basins can be minimized by locating them
                  at sites:

                  i.     that ensure adequate flushing and avoid stagnant pockets; or

                  ii.    that will create the fewest practicable adverse effects on CNRAs from
                          additional infrastructure such as roads, bridges, causeways, piers, docks,
                          wharves, transmission line crossings, and ancillary channels reasonably
                          likely to be constructed as a result of the project; or

                  iii.    with the least practicable risk that increased vessel traffic could result in
                          navigation hazards, spills, or other forms of contamination which could
                          adversely affect CNRAs;

                  iv.    provided that, for any dredging of new channels or basins subject to the
                          requirements of Policy Category 20, data and information on minimization
                          of secondary adverse effects need not be produced or evaluated to comply
                          with this subparagraph if such data and information is produced and
                          evaluated in compliance with Policy Category 20.

     3.   Disposal or placement of dredged material in existing contained dredge disposal sites
           identified and actively used as described in an environmental assessment or
           environmental impact statement issued prior to the effective date of this chapter shall be
           presumed to comply with the requirements of paragraph (1) of this policy category unless
           modified in design, size, use, or function.

    Texas Coastal Management Program Final EIS   Part II 4-64                        August 1996

      4.   Dredged material from dredging projects in commercially navigable waterways is a
            potentially reusable resource and must be used beneficially in accordance with this
            policy.
            A.     If the costs of the beneficial use of dredged material are reasonably comparable to
                   the costs of disposal in a non-beneficial manner, the material shall be used
                   beneficially.

            B.     If the costs of the beneficial use of dredged material are significantly greater than
                   the costs of disposal in a non-beneficial manner, the material shall be used
                   beneficially unless it is demonstrated that the costs of using the material
                   beneficially are not reasonably proportionate to the costs of the project and
                   benefits that will result. Factors that shall be considered in determining whether
                   the costs of the beneficial use are not reasonably proportionate to the benefits
                   include, but are not limited to:

                   1.     environmental benefits, recreational benefits, flood or storm protection
                           benefits, erosion prevention benefits, and economic development benefits;

                   ii.    the proximity of the beneficial use site to the dredge site; and

                   iii.    the quantity and quality of the dredged material and its suitability for
                           beneficial use.

           C.     Examples of the beneficial use of dredged material include, but are not limited to:

                   i.     projects designed to reduce or minimize erosion or provide shoreline
                           protection;

                   ii.    projects designed to create or enhance public beaches or recreational areas;

                   ii.    projects designed to benefit the sediment budget or littoral system;

                   iv.    projects designed to improve or maintain terrestrial or aquatic wildlife
                          habitat;

                   V.     projects designed to create new terrestrial or aquatic wildlife habitat,
                          including the construction of marshlands, coastal wetlands, or other
                          critical areas;

                   vi.    projects designed and demonstrated to benefit benthic communities or
                          aquatic vegetation;

                   vii.   projects designed to create wildlife management areas, parks, airports, or
                          other public facilities;

                   Vill.   projects designed to cap landfills or other waste disposal areas;

    Texas Coastal Management Program Final EIS    Part II 4-65                          August 1996

                  ix.    projects designed to fill private property or upgrade agricultural land, if
                          cost-effective public beneficial uses are not available; and i

                  X.     projects designed to remediate past adverse impacts on the coastal zone.

     5.   If dredged material cannot be used beneficially as provided in paragraph (4)(B) of this
           policy, to avoid and otherwise minimize adverse effects as required in paragraph (1) of
           this policy, preference will be given to the greatest extent practicable to disposal in:

           A.     contained upland sites;

           B.     other contained sites; and

           C.     open water areas of relatively low productivity or low biological value.

     6.   For new sites, dredged materials shall not be disposed of or placed directly on the
           boundaries of submerged lands or at such location so as to slump or migrate across the
           boundaries of submerged lands in the absence of an agreement between the affected
           public owner and the adjoining private owner or owners that defines the location of the
           boundary or boundaries affected by the deposition of the dredged material.

     7.   Emergency dredging shall be allowed without a prior consistency determination as
           required in the applicable consistency rule when:

           A.     there is an unacceptable hazard to life or navigation;

           B.     there is an immediate threat of significant loss of property; or

           C.     an immediate and unforeseen significant economic hardship is likely if corrective
                  action is not taken within a time period less than the normal time needed under
                  standard procedures. The Council secretary shall be notified at least 24 hours
                  prior to commencement of any emergency dredging operation by the agency or
                  entity responding to the emergency. The notice shall include a statement
                  demonstrating the need for emergency action. Prior to initiation of the dredging
                  operations the project sponsor or permit-issuing agency shall, if possible, make all
                  reasonable efforts to meet with Council's designated representatives to ensure
                  consideration of and consistency with applicable policies in this category.
                  Compliance with all applicable policies in this category shall be required at the
                  earliest possible date. The permit-issuing agency and the applicant shall submit a
                  consistency determination within 60 days after the emergency operation is
                  complete.

     8.   Mining of sand, shell, marl, gravel, and mudshell on submerged lands shall be prohibited
           unless there is an affirmative showing of no significant impact on erosion within the
           coastal zone and no significant adverse effect on coastal water quality or terrestrial and

           aquatic wildlife habitat within any CNRA. i

    Texas Coastal Management Program Final EIS   Part 11 4-66                          August 1996

    Explanation

    31 TAC �501.140) contains the TCMP policy on dredging and disposal and placement of
    dredged material. It incorporates the TCMP critical areas policy in 31 TAC �501.14(h).
    Together, these two subsections are intended to incorporate into the TCMP the substance of the
    standards currently applied by the U.S. Army Corps of Engineers and the U.S. Environmental
    Protection Agency to the discharge of dredged or fill material into coastal waters. These
    standards are called the �404(b)(1) Guidelines because they are mandated by �404 of the federal
    CWA.

    The content of the two different subsections varies because each applies to slightly different
    categories of activities and CNRAs. The policy in 31 TAC �501.14(h) applies to the
    construction of structures in and the filling of critical areas, which is equivalent to the term
    "special aquatic sites" under the �404(b)(1) Guidelines. Critical areas are coastal wetlands,
    submerged aquatic vegetation, tidal sand or mud flats, oyster reefs, and hard substrate reefs. In
    contrast, the policy in 31 TAC �501.140) applies to a narrower category of activities, but a
    broader category of CNRAs. It applies only to dredging and disposal and placement of dredged
    material. In addition to critical areas, however, it applies to coastal waters, submerged lands,
    coastal shore areas, and Gulf beaches.

    The dredging policy contains a special provision that is designed to incorporate into the TCMP
    an equivalent to �404(b)(2) of the federal CWA. Section 404(b)(2) applies when a dredging
    activity does not comply with the �404(b)(1) Guidelines and therefore cannot be authorized. In
    that case, the costs of any potential impairment to navigation resulting from not performing the
    dredging, whether it be a physical impairment or an economic impairment, must also be
    considered. If the costs of not dredging outweigh the benefits, the dredging may be authorized.

    The TCMP reflects this provision at 31 TAC �501.140)(1)(D). It provides that if a dredging
    activity would be prohibited solely by 31 TAC �501.14(j)(1)(C), which mirrors the full
    mitigation sequence and significant degradation provisions of the �404(b)(1) Guidelines, it may
    be authorized if the economic consequences of failure to dredge the waterway in question would
    be detrimental to the public and national interest. However, the dredging must still comply with
    the provisions of 31 TAC �501.140)(1)(A) and (B), which respectively requires that impacts
    must be avoided and minimized to the greatest extent practicable and prohibits the violation of
    state water quality standards.

    It is anticipated that this exceptional provision will be rarely raised and even more rarely applied.
    If this provision were to be invoked, it would have to be included in the consistency
    determination for the dredging activity prepared by the permit applicant or federal agency
    proposing the activity. Therefore, that applicant or agency bears the burden of demonstrating
    that the provision applies to the dredging in question. In making these decisions, the Council
    will consider the relevant statements of national interest in Chapter Seven, including specifically
    that from the Corps relating to dredging.

    The TCMIP establishes new state-level requirements for beneficial use of dredged material.
    Section 501.14(j)(4)(B) requires that dredged material from commercially navigable waterways
    be used beneficially, unless it costs "significantly greater" than disposal or placement in a

    Texas Coastal Management Program Final EIS   Part II 4-67                          August 1996

    nonbeneficial manner and the resulting benefits do not justify the costs. This section also
    establishes factors to consider if the costs of the beneficial use of dredged material are
    "significantly greater" than the costs of disposal in a non-beneficial manner.

    The Council and the Corps recognize that review of current maintenance dredging practices
    should be phased in so that the Corps's and local sponsors' existing planning and budgeting
    cycles may programmatically address these practices. Application of these policies to
    maintenance dredging activities will take place through implementation of the Memorandum of
    Agreement (MOA) Between the Council and the Corps (Regarding Review of Coastal
    Maintenance Dredging Activities, dated October 27, 1994).

    The MOA phases in application of these policies in several ways. First, maintenance dredging
    projects in commercially navigable waterways in the coastal zone will be reviewed over the first
    three to five years after federal approval of the TCMP. Second, if the Council finds a
    maintenance dredging project inconsistent, the MOA requires the Council and the Corps to
    engage in an alternative dispute resolution process for a period of up to two years. Third, the
    final consistency determination for the project may include a schedule for implementing changes
    to current maintenance dredging practices required for a project to be consistent with the TCMP.

    These three provisions are designed to mitigate situations where changes to current maintenance
    dredging practices will be required and funds are not immediately available to implement the
    changes. They are intended to provide flexibility for the Corps, local sponsors, the state, and
    others to plan, budget for, and seek the necessary funding for the incremental costs under 31
    TAC �501.14(j)(4)(B) or other provisions of the dredging and dredged material disposal and
    placement policy.

    It is the Council's goal to promote beneficial use of dredged material where it is prudent, feasible,
    and cost-effective, while allowing the continued construction, operation, and maintenance of
    commercially navigable waterways. If the project is a maintenance project included in the MOA,
    the Council would consider the cost factors under 31 TAC �501. 14()(4)(B) within the MOA
    process. Under �VII.D. of the MOA, the initial consistency determination for the project may
    include a schedule for implementing a beneficial use project. This schedule would be designed
    to allow sufficient time to seek necessary funding for incremental costs when a beneficial use is
    prudent, feasible, and cost effective, but funds for the incremental costs are not immediately
    available. If the federal sponsor, local sponsors, and if applicable, the other entities sponsoring
    the beneficial use project cannot obtain funding for the incremental cost of a beneficial use
    project, the cost/benefit analysis required by 31 TAC �501.14(j)(4)(B) would include
    consideration of any increased cost to dredging due to deferred maintenance, safety risks to
    navigation, vessel draft restrictions, the potential for closure of a commercially navigable
    waterway from the failure to dredge, and the cost to local, state, and national economies due to
    closure of a commercially navigable waterway. These costs would be considered "costs of the
    beneficial use" under 31 TAC �501.14(j)(4)(B). The Council would consider them in the context
    of a revised consistency determination to be submitted without consideration of a beneficial use
    project. The Corps would submit this to the Council under �VIII.C of the MOA after good faith
    efforts have failed to obtain funds.

    Texas Coastal Management Program Final EIS   Part II 4-68                          August 1996

               Management Authority and Administration

               Chapter 86 of the Parks and Wildlife Code authorizes the TPWD to manage and protect marl,
               sand, gravel, shell, and mudshell located in the beds of state-owned waterways. TPWD rules
               under 31 TAC Chapter 57 establish procedures for the issuance of permits for the taking of these
               resources. The TPWTD will comply with the policy in 31 TAC �501.14(j)(8) and (9) when
               adopting rules and issuing permits under this authority.

               In accordance with TPWD rules, a permit cannot be issued without findings on navigation,
               conservation, economics, general environmental concerns, fish and wildlife values, recreation,
               and relative public and private benefits. The rules require that the following criteria be
               considered in the evaluation of a permit request:

                 1.   whether the operation under the proposed permit will damage or injure oysters, oyster
                      beds, or fish-inhabited waters;

                2.   whether the operation will damage or injuriously affect any island, reef, bar, channel,
                      creek, or bayou used for frequent or occasional navigation, or change any current that will
                      affect navigation; and

                3.   the requirements of industry for such sedimentary materials and the relative value of
                      their commercial use to the state.

               Other criteria considered include whether granting the permit will have a material adverse effect
               on recreational activity, commercial fishing, or the general seafood industry in the area of the
              permit and the effect, if any, on navigation in the area of the permit. The list of criteria is
              discretionary and is not exclusive, so that the TPWD may consider other factors as appropriate
              for individual permits.

               Several exemptions from the requirements to obtain a permit or pay for dredged material are
              provided. Dredging necessary or incidental to navigation and dredging under state or federal
              authority is exempt. The holder of an oil and gas lease executed by the state is not required to
              obtain a permit. Entities obtaining sand or gravel to be used on public roads and streets are
              exempt from the requirement to pay the state for materials. The taking of sediment from areas
              near a seawall for any purpose other than that necessary or incidental to navigation or dredging
              under state or federal authority is prohibited.

              If, after granting a pennit, the TPWD finds that the use of excessive equipment is causing
              siltation or other damage to oysters, oyster beds, or fish-inhabited waters, the quantity and/or
              type of equipment used in a particular area may be limited. Failure or refuisal to comply with the
              terms of the permit or the violation of any law or condition pertaining to the taking of marl, sand,
              and/or gravel will result in immediate termination or revocation of all rights conferred in or
              claimed under the permit, and the permit may be canceled by the TPWD.

    .        ~~By virtue of their incorporation in 31 TAC Ch. 16, the GLO and SLB must comply with the
              policies in this category when approving oil, gas, and other mineral lease plans of operations;

              Texas Coastal Management Program Final EIS    Part II 4-69                           August 1996

    granting surface leases, easements, and permits; and adopting rules under Chapters 32, 33, and
    5 1-53 of the Texas Natural Resources Code and Chapter 61 of the Texas Water Code for
    dredging and dredged material disposal and placement. The policies in 31 TAC Ch. 16 reflect I
    the mitigation sequencing and other provisions of the �404(b)(l) Guidelines.

    The GLO and the SLB are the management entities for activities on state-owned lands under the
    authority of chapters 32, 33, and 5 1-53 of the Texas Natural Resources Code.

    Under 31 TAC Chapter 155, easements are issued to lessees for dredging of channels to allow
    access to the holder of any surface or mineral interests in coastal public lands for purposes
    necessary or appropriate to the use of such interests. In addition to the policies in 31 TAC,
    Chapter 155 establishes standards and criteria for the siting, design, and construction of dredged
    channels and dredged material disposal. To the extent feasible, project plans should utilize piers
    or catwalks to reach deeper water areas rather than channels or canals. A channel or basin should
    be designed to ensure adequate flushing and to prevent the creation of pockets or other hydraulic
    conditions which would cause stagnant water pockets. Dredging for navigational access should
    be well planned to prevent excavation of an unnecessary channel. Where several landowners are
    to be served by a project, peripheral canals leading to a central navigational channel should be
    considered rather than separate access channels for each waterfront landowner. The alignment of
    a channel or canal should make maximum use of a natural or existing channel. Design and
    alignment should minimize disruption of natural sheetfiow, water flow, and drainage systems
    and avoid oyster reefs and highly productive wetland areas. Any proposal to dredge a channel
    through highly productive coastal public lands is discouraged and will be approved only in
    unusual circumstances. Dredging should be conducted in a manner that minimizes turbidity and
    dispersal of dredged material.

    Guidelines for dredged material disposal include placement, to the extent possible, of all dredged
    material on suitable uplands above mean high water, and location of disposal areas in areas of
    relatively low productivity above the mean high water line. Any toxic material should be
    disposed of in an upland area behind impervious dikes unless detoxification is undertaken.
    Open-water and deep-water disposal should be considered as alternatives only if upland
    alternatives are not feasible and should be seriously considered only after careful consultation
    with concerned agencies. Habitat creation and improvement should be considered when only
    minor environmental damage would result.

    Under 31 TAC Chapter 13, miscellaneous easements are granted for rights-of-way across public
    lands for oil and gas pipelines, transmission lines, roads, and other linear facilities. Surface
    leases are granted for the construction of commercial facilities and other non-waterfront
    structures. These authorizations must comply with the policies in this category if such structures
    or facilities involve dredging or disposal and placement of dredged material.

    In the Texas Coastal Waterway Act of 1975, TxDOT received a mandate to carry out a state
    coastal policy relating to navigation. As part of this policy, the state declared its support of
    environmentally sound shallow-draft navigation in the state's coastal waters. It is also state
    policy to strive to prevent the waste of both publicly and privately owned natural resources and
    to prevent or minimize adverse impacts to the environment. The state also pledged to maintain, i
    preserve, and enhance wildlife and fisheries. The legislation specifically authorized TxDOT to

    Texas Coastal Management Program Final EIS   Part 11 4-70                          August 1996

    acquire by gift, purchase, or condemnation any property or interest in property deemed necessary
    to fulfill its responsibilities under this authority, including easements and rights-of-way for
    dredged material disposal sites and channel expansion, relocation, or alteration. TxDOT is also
    responsible for evaluating the Gulf Intracoastal Waterway (GIWW), including the importance of
    the waterway, principal problems of the waterway, significant modifications to the waterway,
    and specific recommendations for legislative action.

    Amendments to the Texas Coastal Waterway Act in 1995 allow the Texas Transportation
    Commission, through TxDOT, to enter into agreements with the U.S. Army Corps of Engineers
    to participate in the cost of a project to benieficially use material dredged from the GIWW.

    TxDOT has organized a state interagency committee of natural and economic resource agencies
    to help address problems and to recommend solutions concerning the GlWW. The committee
    also assists in the selection of dredged material disposal sites. As a means of selecting
    environmentally and operationally suitable sites, TxDOT appoints a task force consisting of
    representatives from state agencies, the Corps of Engineers, and federal resource protection
    agencies. After a site has met the approval of the task force, the Corps of Engineers coordinates
    the environmental approval process in accordance with the National Environmental Policy Act.
    The opinions and recommendations of the task force are advisory in nature.

    The 1975 legislation mandates that public hearings be held to receive evidence and testimony
    concerning the desirability of the proposed acquisition of any property or interest in property for
    any dredged material disposal site, or for the widening, relocation, or alteration of the main
    channel of the GIWW. Based on public testimony and environmental findings, TxDOT makes a
    determination on the proposed use of the property.

    TxDOT must comply with the policies in this category when adopting rules and taking actions as
    local sponsor of the Gulf Intracoastal Waterway under Texas Civil Statutes, article 5415e-2.

    The commission is the state agency responsible for issuing certifications pursuant to �401 of the
    federal CWA to ensure that federal permits for dredging and filling activities comply with Texas
    Water Quality Standards. No person may conduct any activity under federal permit or license
    which may result in any discharge into or adjacent to waters in the state unless the person has
    received a certification (30 TAC �279.4).

    In accordance with the federal CWA �404, any entity intending to discharge dredged or fill
    material into the waters of the U.S., including wetlands, must obtain a permit from the U.S.
    Army Corps of Engineers. All �404 permits must receive a water quality certification from the
    RRC under �401 of the CWA for dredging activities associated with oil and gas exploration,
    development, and production, including transportation by pipeline or from the TNRCC for all
    other dredging activities. The �401 water quality certification attests that a proposed activity
    resulting in a discharge to surface waters will not cause a violation of the state's water quality
    standards set out in 30 TAC Chapter 307. The TNRCC and the RRC must comply with the
    policies in this category when issuing water quality certifications and adopting rules under
    Chapter 26 of the Texas Water Code and Chapter 91 of the Texas Natural Resources Code,
    governing certification of compliance with surface water quality standards for federal actions and
    permits authorizing dredging or the discharge or placement of dredged material.

    Texas Coastal Management Program Final EIS   Part 11 4-71                           August 1996

    The TNRCC's �401 water quality certification review process has been strengthened by
    clarifying the TNRCC's policy on wetlands protection and by providing consistency between
    related state and federal rules (30 TAC �279.11). The TNRCC regulations incorporate a
    mitigation sequence to avoid, minimize, and compensate for adverse impacts on wetlands. The
    Railroad Commission has adopted rules for a �401 water quality certification process similar to
    the process adopted by the TNRCC.

    The RRC is the state agency responsible for issuing certifications pursuant to �401 of the federal
    CWA to ensure that federal permits for dredging and filling activities associated with oil and gas
    exploration, production, or pipeline construction comply with Texas Water Quality Standards.

    The TPWD must comply with the policies in this category when adopting rules under 31 TAC
    Chapter 57 (relating to fisheries) governing dredging and dredged material disposal and
    placement. The rules under Chapter 57 recognize that wetland areas are of indispensable value
    to fish and wildlife. Section 57.1 provides guidance to staff commenting on permits for dredging
    or advocating methods of disposal of dredged material to minimize detrimental environmental
    effects. Section 57.141 provides that the TPWD will oppose wetland channelization and
    drainage as a general practice.

    Exemptions

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material Excepted
    from this provision are activities exempted from the requirement for a permit for the discharge of
    dredged or fill material, described in Code of Federal Regulations, Title 33, �323.4 and/or Code
    of Federal Regulations, Title 40, �232.3, including but not limited to normal farming,
    silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, and
    harvesting for the production of food, fiber, and forest products, or upland soil and water
    conservation practices. A �401 water quality certification is not required for these activities.

    Acquisition of a Site for the Placement or Disposal of Dredged Material From, or the
    Expansion, Relocation, or Alteration of, the Gulf Intracoastal Waterway. None.

    Mineral Lease Plan of Operations. Mineral lease plans of operations are not currently a
    condition for obtaining a mineral lease from the GLO/SLB.

    Geophysical of Geochemical Permit. Holders of valid oil and gas leases are not required to
    have a geophysical or geochemical permit (TEX. NAT. RES. CODE ANN. �52.322).

    Miscellaneous Easement, Surface Lease, Coastal Lease, and Navigation District Lease.
    None.

    Coastal Easement, and Structure Registration. Piers over the size specified for structure
    registrations are subject to the requirement of a coastal easement as specified in (TEX. NAT.
    RES. CODE ANN. �33.111).

    Cabin Permit. No cabin permit may be required for structures, excavations, or other similar
    structures as long as they are located wholly on the private littoral upland, even though the

    Texas Coastal Management Program Final EIS   Part II 4-72                          August 1996

    activities may result in the area being inundated by public water (TEX. NAT. RES. CODE ANN.
    �33.122).

    Agency or Subdivision Wetlands Mitigation Bank. Approval of a wetland mitigation bank is
    based upon a proposed Memorandum of Agreement (MOA) and the MOA's compliance with
    national guidelines adopted in November 1995.

    Permit for Disturbing Marl, Sand, Shell, or Gravel on State-Owned Land. Several
    exemptions apply to the use of marl, sand, gravel, shell, and mudshell for public purposes, such
    as seawalls and state oil and gas leases (PARKS & WILDLIFE CODE ANN. Ch. 86).

    Variances

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. The RRC
    may waive the requirement for water quality certification (16 TAC �3.93).

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. The
    TNRCC may waive the requirement for water quality certification (30 TAC �279.4).

    Acquisition of a Site for the Placement or Disposal of Dredged Material From, or the
    Expansion, Relocation, or Alteration of, the Gulf Intracoastal Waterway. None.

    Mineral Lease Plan of Operations, Geophysical or Geochemical Permit, Miscellaneous
    Easement, Surface Lease, and Cabin Permit. None.

    Structure Registration. All uses described for structure registrations must be registered with
    the School Land Board (TEX. NAT. RES. CODE ANN. �33.115). There is no statutory
    provision for a variance from this requirement.

    Coastal Easement. There is no statutory provision for varying from the coastal easement
    requirement.

    Coastal Lease. There is no statutory provision for varying from the coastal lease requirement
    (TEX. NAT. RES. CODE ANN. �33.105).

    Navigation District Lease. There is no statutory provision expressly granting variance
    authority.

    Agency or Subdivision Wetlands Mitigation Bank. Approval of a wetland mitigation bank is
    based on a proposed MOA.

    Permit for Disturbing Marl, Sand, Shell, or Gravel on State-Owned Land. None.

    Monitorinc and Enforcement

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. Members
    and employees of the RRC, on proper identification, may enter public or private property to

    Texas Coastal Management Program Final EIS   Part II 4-73                     August 1996

    inspect and investigate conditions relating to the quality of water in the state (TEX. NAT. RES.
    CODE ANN. �91.1012). Violations may subject a person to administrative penalties of up to
    $10,000 per day for each violation as well as criminal penalties (TEX. NAT. RES. CODE ANN.
    �81.0531 and �91.002).

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. The
    members of the TNRCC and their agents are entitled to enter any public or private property at
    any reasonable time for the purpose of inspecting and investigating conditions relating to the
    water quality of the state (TEX. WATER CODE ANN. �26.014). Violations may subject a
    person to administrative penalties of up to $10,000 per day for each violation as well as civil and
    criminal penalties (TEX. WATER CODE ANN. �26.136, �26.122, and �26.2121).

    Acquisition of a Site for the Placement or Disposal of Dredged Material From, or the
    Expansion, Relocation, or Alteration of, the Gulf Intracoastal Waterway. Not applicable.

    Mineral Lease Plan of Operations. None.

    Geophysical or Geochemical Permit. A violation of the conditions or provisions of the
    geophysical or geochemical permit is a misdemeanor punishable by a fine of not less than $100
    nor more than $1000 per day. (TEX. NAT. RES. CODE ANN. �52.325). All operations are
    subject to inspection and monitoring by the land commissioner or the commissioner's
    representatives at any time. Within 30 days of the expiration of the permit, the permittee must
    file with the commissioner a sworn "summary of activities" report (31 TAC �9.4(f)).          ,

    Miscellaneous Easement. Existing MEs must be renewed periodically. Easements may be
    granted for a term of years. The commissioner may set a perpetual term if it is deemed to be in
    the best interest of the state (TEX. NAT. RES. CODE �51.296). No person may undertake the
    activities described above for MEs on state-owned land without an easement from the
    commissioner or the board. A person without an easement is subject to a penalty of not more
    than $1,000 per day, the removal of the structure, or the filing of a lien (TEX. NAT. RES. CODE
    ANN. �51.302).

    Surface Lease. Failure to obtain a lease prior to engaging in the actions listed above for surface
    leases subjects the actor to a fine of no more than $1,000 per day, removal of the structure, and/or
    filing of a lien on the structure (TEX. NAT. RES. CODE ANN. �51.302). Civil penalties of not
    more than $200 per day per structure on coastal public lands may be assessed (TEX. NAT. RES.
    CODE ANN. �33.112).

    Structure Registration. Any owner of littoral property who fails to register with the School
    Land Board the location and dimensions of the pier to be constructed according to the
    specifications described for structure registrations is subject to a civil penalty of no more than
    $200 (TEX. NAT. RES. CODE ANN. �33.116).

    Coastal Easement. Any construction or placement of a structure on coastal public land without
    first obtaining a coastal easement from the General Land Office is subject to a civil penalty of
    not more than $200 (TEX. NAT. RES. CODE ANN. �33.112). Violations can also result in

    Texas Coastal Management Program Final EIS   Part II 4-74                           August 1996

    penalties of no more than $1,000 per day per violation, the removal of the structure, or the filing
    of a lien (TEX. NAT. RES. CODE ANN. �51.302).

    Coastal Lease. Engaging in regulated activities without a coastal lease will subject the actor to a
    civil penalty of not more than $200 (TEX. NAT. RES. CODE ANN. �33.112). Violations can
    also result in penalties of no more than $1,000 per day per violation, the removal of the structure,
    or the filing of a lien (TEX. NAT. RES. CODE ANN. �51.302).

    Cabin Permit. Failure to obtain a cabin permit is subject to a civil penalty of not less than $50
    nor more than $1,000 (TEX. NAT. RES. CODE ANN. �33.120).

    Navigation District Lease. If lands leased from the state are used by the navigation district for
    any purpose or use not approved by the School Land Board, the lease may be terminated and the
    lands shall revert to the State of Texas (TEX. WATER CODE ANN. �61.116).

    Agency or Subdivision Wetlands Mitigation Bank. The Mitigation Bank Review Team
    (MBRT) must agree to appropriate assessment methods. Selection of the appropriate assessment
    method will be determined on a case-by-case basis. Methods could include the Wetland
    Evaluation Technique, Habitat Evaluation Procedures, or other methods determined appropriate
    by the MBRT, including best professional judgement.

    Permit for Disturbing Marl, Sand, Shell, or Gravel on State-Owned Land. Persons violating
    the provisions of Chapter 86 are subject to penalties of $500 per day. (PARKS & WILDLIFE
    CODE ANN. �{86.020).

    Aeencv's Authoritv to Regulate or Condition Listed Action to Satisfv TCMP Policv

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. The
    Railroad Commission is required to adopt rules and issue permits as necessary to prevent
    pollution of surface and subsurface water related to oil and gas exploration and production
    activities (TEX. NAT. RES. CODE ANN. �91.101).

    Certification of a Federal Permit for the Discharge of Dredged or Fill Material. After a
    public hearing, notice of which shall be given to the permittee, the TNRCC may require the
    permittee to conform to new or additional conditions (TEX. WATER CODE ANN. �26.029).

    Acquisition of a Site for the Placement or Disposal of Dredged Material From, or the
    Expansion, Relocation, or Alteration of, the Gulf Intracoastal Waterway. Section 6(d) of
    article 5415e-2 requires the Texas Transportation Commission to coordinate with appropriate
    state and federal agencies whenever its proposed acquisitions will potentially have a significant
    environmental impact or effect on coastal public lands, coastal marshes and similar areas,
    wildlife, or fisheries.

    Mineral Lease Plan of Operations. The Texas land commissioner may include in the lease any
    provision the commissioner considers necessary for protection of the interests of the state (TEX.
    NAT. RES. CODE ANN. �53.016(b)).

    Texas Coastal Management Program Final ElS   Part H 4-75                          August 1996

    Geophysical or Geochemical Permit. The commissioner may make rules relating to
    geophysical or geochemical exploration, permits, or permittees the commissioner considers
    appropriate (TEX. NAT. RES. CODE ANN. �52.324 and �53.163).

    Miscellaneous Easement. The grant of a miscellaneous easement may contain any provisions
    that the commissioner considers necessary to protect the interests of the state (TEX. NAT. RES.
    CODE ANN. �51.305).

    Surface Lease. If an application for a surface lease is granted, the School Land Board shall
    determine the reasonable terms, conditions, and considerations for the lease (TEX. NAT. RES.
    CODE ANN. �33.104).

    Structure Registration and Coastal Easement. None.

    Coastal Lease. The SLB has the authority to determine the reasonable terms, conditions, and
    consideration for a coastal lease (TEX. NAT. RES. CODE ANN. �33.104).

    Cabin Permit. The School Land Board may not grant an application for a cabin permit which
    would violate the public policy of this state (TEX. NAT. RES. CODE ANN. �33.129).

    Navigation District Lease. After submission of evidence, the School Land Board shall
    authorize the issuance or denial of the proposed navigation district lease and shall determine any
    other conditions necessary to best serve the interests of the general public (TEX. WATER CODE
    ANN. �61.116).

    Agency or Subdivision Wetlands Mitigation Bank. The GLO must approve a mitigation bank
    prior to the establishment and maintenance of such a bank (TEX. REV. CIV. STAT. ANN. art.
    5421(u)).

    Permit for Disturbing Marl, Sand, Shell, or Gravel on State-Owned Land. The Parks and
    Wildlife Commission shall manage, control, and protect marl and sand of commercial value and
    all gravel, shell, and mudshell located within the tidewater limits of the state and on islands
    within those limits, and within the freshwater areas of the state not embraced by a survey of
    private land, and on islands within those areas (PARKS & WILDLIFE CODE ANN. �86.001).

    Texas Coastal Management Program Final EIS   Part II 4-76                         August 1996

    POLICY CATEGORY 11: CONSTRUCTION IN THE BEACH/DUNE SYSTEM

    State Avencv Action and Manafed Uses

    GLO - Certification of Local Government Beach Access or Dune Protection Plan
    (TEX. NAT. RES. CODE ANN. �:3.2053(a)(10))

    Certain local governments are required to adopt and implement programs for the preservation of
    dunes and enhancement of use of and access to and from public beach (31 TAC � 15.3(a)). The
    plans regulate activities that could destroy or promote erosion of public beaches and other coastal
    public resources. They encourage environmentally sound erosion response methods and
    discourage methods such as rigid shorefront structures which can have a harmful impact on the
    environment (31 TAC � 15.1(5)).

    Local Government - Dune Protection Permit that Authorizes Construction Activity that is
    Located 200 Feet or Less Landward of the Line of Vegetation and that Results in the
    Disturbance of more than 7,000 Square Feet of Dunes or Dune Vegetation, Construction
    Activity that Results in the Disturbance of more 7,500 Cubic Yards of Dunes, or a Coastal
    Shore Protection Project Undertaken on a Gulf Beach or 200 Feet or Less Landward of the
    Line of Vegetation that Affects more than 500 Linear Feet of Gulf Beach
    (TEX. NAT. RES. CODE ANN. ��33.2053(J)(1)-(3))

    Damaging, destroying, or removing a sand dune or portion of a sand dune seaward of a dune
    protection line or within a critical dune area or killing, destroying, or removing in any manner
    any vegetation growing on a sand dune seaward of a dune protection line or within a critical dune
    area (TEX. NAT. RES. CODE ANN. �63.091). Prohibited land and water use: construction of
    any barrier, obstruction, or restraint that will interfere with the public's right to enter, leave, or
    use any public beach or any larger area abutting on or contiguous to a public beach if the public
    has acquired a right of use or easement or has retained a right by virtue of continuous right in the
    public (TEX. NAT. RES. CODE ANN. �61.013).

    Local Government - Beachfront Construction Certificate that Authorizes Construction
    Activity that is Located 200 Feet or Less Landward of the Line of Vegetation and that
    Results in the Disturbance of More than 7,000 Square Feet of Dunes or Dune Vegetation, a
    Coastal Shore Protection Project Undertaken on a Gulf Beach o' 200 Feet or Less
    Landward of the Line of Vegetation that Affects More than 500 Linear Feet of Gulf Beach,
    or a Closure, Relocation, or Reduction in Existing Public Beach Access or Public Beach
    Access Designated in an Approved Local Government Beach Access Plan, Other than for a
    Short Term(TEX. NAT. RES. CODE ANN. ��33.2053(I)(1),(3), and (4))

    The certificate regulates construction that could destroy and erode public beaches and other
    coastal public resources (31 TAC � 15.1 (5)).

    Policies

    The GLO shall comply with the policies in this category when certifying local government dune
    protection and beach access plans and adopting rules under the Texas Natural Resources Code,

    Texas Coastal Management Program Final EIS   Part II 4-77                      August 1996

    Chapters 61 and 63. Local governments required by the Texas Natural Resources Code,
    Chapters 61 and 63, and 3 1 TAC Chapter IS (relating to Coastal Area Planning) to adopt dune
    protection and beach access plans shall comply with the applicable policies in this category when
    issuing beachfront construction certificates and dune protection permits.

    Construction in critical dune areas and adjacent to Gulf beaches shall comply with the policies in
    this category.

           A.     Construction within a critical dune area that results in the material weakening of
                  dunes and material damage to dune vegetation shall be prohibited.

           B.     Construction within critical dune areas that does not materially weaken dunes or
                  materially damage dune vegetation shall be sited, designed, constructed,
                  maintained, and operated so that adverse "effects" (as defined in 31 TAC � 15.2,
                  relating to Coastal Area Planning) on the sediment budget and critical dune areas
                  are avoided to the greatest extent practicable. Practicability shall be determined
                  by considering the effectiveness, scientific feasibility, and commercial availability
                  of the technology or technique. Cost of the technology or technique shall also be
                  considered. Adverse effects (as defined in 31 TAC Chapter 15, relating to Coastal
                  Area Planning) that cannot be avoided shall be:

                  1.     minimized by limiting the degree or magnitude of the activity and its
                          implementation; I

                  ii.    rectified by repairing, rehabilitating, or restoring the adversely affected0
                          dunes and dune vegetation; and

                  iii.    compensated for on-site or off-site by replacing the resources lost or
                          damaged seaward of the dune protection line.

           C.     Rectification and compensation for adverse effects that cannot be avoided or
                  minimized shall provide at least a one-to-one replacement of the dune volume and
                  vegetative cover, and preference shall be given to stabilization of blowouts and
                  breaches and on-site compensation.

           D.     The ability of the public, individually and collectively, to exercise its rights of use
                  of and access to and from public beaches shall be preserved and enhanced.

           E.     Nonstructural erosion response methods such as beach nourishment, sediment
                  bypassing, nearshore sediment berms, and planting of vegetation shall be
                  preferred instead of structural erosion response methods. Subdivisions shall not
                  authorize the construction of a new erosion response structure within the
                  beach/dune system, except for a retaining wall located more than 200 feet
                  landward of the line of vegetation. Subdivisions shall not authorize the
                  enlargement, improvement, repair or maintenance of existing erosion response
                  structures on the public beach. Subdivisions shall not authorize the repair or Is
                  maintenance of existing erosion response structures within 200 feet landward of

    Texas Coastal Management Program Final EIS   Part 1I 4-78                          August 1996

                   the line of vegetation except as provided in 31 TAC 15.6(d) of this title (relating
                   to Concurrent Dune Protection and Beachfront Construction Standards).

    Manacement Authoritv and Administration

    Under Chapter 61 of the Texas Natural Resources Code and 31 TAC Chapter 15, the GLO and
    the Office of the Attorney General (OAG) are responsible for protecting the public's right to use
    and have access to and from the public beach, and for providing standards to the local
    governments certifying that construction on land adjacent to the Gulf of Mexico is consistent
    with such public rights.

    Coastal development is the primary activity the GLO manages under the Open Beaches Act
    (Chapter 61 of the Texas Natural Resources Code), the Dune Protection Act (Chapter 63 of the
    Texas Natural Resources Code), and Texas Water Code, Chapter 16. GLO jurisdiction extends
    to the construction of public, residential, commercial, and industrial structures that affect the
    critical dune areas, Gulf beaches, and coastal hazard areas. Amendments to the above-mentioned
    acts in 1991 required the GLO to promulgate rules for the protection of coastal sand dunes and to
    ensure the public's right to use of and access to the public beach. The GLO must comply with
    the policies in this category when certifying local government dune protection and beach access
    plans.

    The beachfront construction certification area is the land adjacent to and landward of public
    beaches and lying in the area either up to the first public road not parallel to the beach, or the area
    up to 1,000 feet of mean high tide, whichever distance is greater (31 TAC � 15.3(c)). Critical
    dune areas are all dunes and dune complexes located within 1,000 feet of mean high tide of the
    Gulf of Mexico (31 TAC � 15.3(d)). Local governments without certified plans cannot permit
    construction within the jurisdiction of the Dune Protection and Open Beaches Acts (31 TAC
    �15.3(p)).

    Local governments have direct management authority over coastal development but are subject
    to GLO and OAG oversight. The Open Beaches Act and Dune Protection Act require local
    governments to adopt dune protection and beach access plans that comply with the GLO rules for
    management of the beach/dune system. Local governments can fund, directly engage in, or
    permit construction activities affecting the beach/dune system. Local governments required by
    the Texas Natural Resources Code, Chapters 61 and 63, and 31 TAC Chapter 15 (relating to
    Coastal Area Planning) to adopt dune protection and beach access plans must comply with the
    GLO rules and the policies in this category when issuing beachfront construction certificates and
    dune protection permits.

    The beachfront construction certification area is the land adjacent to and landward of public
    beaches and lying in the area either up to the first public road not parallel to the beach, or the area
    up to 1,000 feet of mean high tide, whichever distance is greater (31 TAC � 15.3(c)).

    Critical dune areas are within 1,000 feet of mean high tide and are essential to the protection of
    state-owned land, public beaches, and submerged land (TEX. NAT. RES. CODE ANN.
    �63.121). Permits are required within the critical dune area or seaward of the dune protection
    line (TEX. NAT. RES. CODE ANN. �63.0091).

    Texas Coastal Management Program Final EIS   Part II 4-79                          August 1996

    Exemptions

    Certification of Local Government Beach Access or Dune Protection Plan. National park
    areas, national wildlife refuges, or other designated national natural areas; state park areas, state
    wildlife refuges, or other designated state natural areas; and beaches on islands and peninsulas
    not accessible by public road or ferry are exempt from local government plans (31 TAC
    �15.3(q)).

    Beachfront Construction Certificate. Beachfront certification for construction does not
    prevent any agency or subdivision of the state or federal government from erecting or
    maintaining any groin, seawall, barrier, pass, channel, jetty, or other structure as an aid to
    navigation, protection of the shore, fishing, safety, or other lawful purpose authorized by the
    constitution or laws of Texas or the United States (TEX. NAT. RES. CODE ANN. �61.022).

    Dune Protection Permit. The following activities are exempt from permit requirements but are
    subject to requirements of the Open Beaches Act and local laws: (1) exploration for and
    production of oil and gas and reasonable and necessary activities directly related to such
    exploration and production; (2) grazing livestock and reasonable and necessary activities directly
    related to grazing; and (3) recreational activities other than operation of a recreational vehicle
    (31 TAC �15.3(s)(2)).

    Variances

    Certification of Local Government Beach Access or Dune Protection Plan. There is no
    provision authorizing variances from the requirements for certification of local government
    plans.

    Dune Protection Permit and Beachfront Construction Certificate. A local government shall
    inform the GLO and the FEMA regional representative before it issues any variance from FEMA
    regulations or allows any activity in variance of FEMA's regulations (31 TAC � 15.6(e)(2)).

    Monitoring and Enforcement

    Certification of Local Government Beach Access or Dune Protection Plan. Any person or
    local government who violates the Dune Protection Act, the Open Beaches Act, or a permit or a
    certificate condition is liable to the GLO for a civil penalty of not more than $1,000 per violation
    per day (31 TAC �15.9).

    Beachfront Construction Certificate. Any person or local government who violates a
    certificate condition is liable to the GLO for a civil penalty of not more than $1,000 per day (31
    TAC � 15.9). The GLO may assist the attorney general in enforcement (TEX. NAT. RES. CODE
    ANN. �61.01 1).

    Dune Protection Permit. Any person or local government who violates the Dune Protection
    Act, the Open Beaches Act, or a permit or certificate condition is subjected to a civil penalty of
    not less than $50 nor more than $1,000 per violation per day (31 TAC � 15.9).

    Texas Coastal Management Program Final EIS    Part H1 4-80                           August 1996

                   Aaencv's Authoritv to Regulate or Condition Listed Action to Satisfy TCMP Policy

    0s             Certification of Local Government Beach Access or Dune Protection Plan. The
                   commissioners court or other governing body of the municipality may include in a permit the
                   terms and conditions it finds necessary to assure the protection of life, natural resources, and
                  property (TEX. NAT. RES. CODE ANN. �63.055).

                  Beachfront Construction Certificate. Certification is issued pursuant to the public policy of
                  the state which upholds the public right to ingress and egress to and from state-owned beaches
                  within the scope described under "Agency Action and Managed Uses" above. The public policy
                  forbids interference with safe and healthy use of state beaches (TEX. NAT. RES. CODE ANN.
                   �61.011).

                  Dune Protection Permit. The commissioners court or governing body of the municipality may
                  include in a permit the terms and conditions it finds necessary to assure the protection of life,
                  natural resources, and property (TEX. NAT. RES. CODE ANN. �63.055).

    e

                  Texas Coastal Management Program Final EIS    Part II 4-81                          August 1996

    POLICY CATEGORY 12: DEVELOPMENT IN COASTAL HAZARD AREAS

    Policies i

    1.     Subdivisions participating in the National Flood Insurance Program shall adopt
           ordinances or orders governing development in special hazard areas under Texas Water
           Code, Chapter 16, Subchapter I, and Texas Local Govermnent Code, Chapter 240,
           Subchapter Z, that comply with construction standards in regulations at Code of Federal
           Regulations, Title 44, Parts 59-60, adopted pursuant to the National Flood Insurance Act,
           42 United States Code Annotated, ��4001 et seq.

    2.     Pursuant to the standards and procedures under the Texas Natural Resources Code,
           Chapter 33, Subchapter H, the GLO shall adopt or issue rules, recommendations,
           standards, and guidelines for erosion avoidance and remediation and for prioritizing
           critical erosion areas.

    Management Authoritv and Administration

    The National Flood Insurance Program is a voluntary federal program in which local
    governments may participate. The purpose of the program is to make flood insurance coverage
    available for those communities that encourage sound land use by minimizing exposure of
    property to flood loss. Local governments have the state authority to implement the federal
    regulations under Texas Water Code, Chapter 16, Subchapter I, governing flood insurance, and
    Texas Local Government Code, Chapter 240, Subchapter Z, governing land use regulation for
    flood control in coastal counties. The construction standards under Code of Federal Regulations,
    Title 44, Parts 59-60, adopted pursuant to the National Flood Insurance Act (42 U.S.C.A. �4001
    et seq.) establish minimum bottom-floor elevations and require that structures be designed for
    resistance to wind and water loads.

    Under Texas Natural Resources Code, Chapter 33, the GLO is responsible for coordinating a
    plan and promulgating rules for coastal erosion avoidance and remediation. See "Shoreline
    Erosion Response" in Chapter Six, "Special Planning."

    Texas Coastal Management Program Final EIS   Part II 4-82                         August 1996

    POLICY CATEGORY 13: DEVELOPMENT WITHIN COASTAL BARRIER RESOURCE
                                SYSTEM UNITS AND OTHERWISE PROTECTED AREAS ON
                                COASTAL BARRIERS

    State Acenov Action and Manaoed Uses

    TNRCC - Creation of a Special Purpose District or Approval of Bonds for the Purpose of
    Construction of Infrastructure on Coastal Barriers
    (TEX. NAT. RES. CODE ANN. �33.2053(t)(4))

    Levee improvement districts are created to construct and maintain levees along rivers, streams,
    and creeks; regulate drainage; and perform other improvements of reclaimed land (TEX.
    WATER CODE ANN. �57.091). Irrigation districts are created to deliver untreated water for
    irrigation and to provide for drainage of lands (TEX. WATER CODE ANN. �58.121).
    Navigation districts are created for purposes reasonably related to the promotion of navigation
    (TEX. WATER CODE ANN. �61.116). Special utility districts may be created to provide water
    to towns, cities, and other political subdivisions of this state, to private business entities, and to
    individuals (TEX. WATER CODE ANN. �65.012). Stormwater control districts are created to
    control stormwater and floodwater and to prevent area and downstream flooding in all or part of
    a watershed (TEX. WATER CODE ANN. �66.012).

    TxDOT - Transportation Construction Project or Maintenance Program
    (TEX. NAT. RES. CODE ANN. �33.2053(d)(2))

    Texas Transportation Commission approvals of plans for the location, construction, and
    maintenance of the state highway system and public roads and of the location, construction, and
    maintenance of individual state highway system projects.

    Policies

    TNRCC rules and approvals for the creation of special districts and for infrastructure projects
    funded by issuance of bonds by water, sanitary sewer, and wastewater drainage districts under
    Texas Water Code, Chapter 50; water control and improvement districts under Texas Water
    Code, Chapter 50; municipal utility districts under Texas Water Code, Chapter 54; regional plan
    implementation agencies under Texas Water Code, Chapter 54; special utility districts under
    Texas Water Code, Chapter 65; stormwater control districts under Texas Water Code, Chapter
    66; and all other general and special law districts subject to and within the jurisdiction of the
    TNRCC, shall comply with the policies in this category.

    TxDOT rules and approvals under Texas Civil Statutes, article 6663 et seq., governing planning,
    design, construction, and maintenance of transportation projects, shall comply with the policies
    in this category.

    Development of new infrastructure or major repair of existing infrastructure within or supporting
    development within Coastal Barrier Resource System Units and Otherwise Protected Areas
    designated on maps dated October 24, 1990, under the Coastal Barrier Resources Act, 16 United
    States Code Annotated, �3503(a), shall comply with the policies in this category.

    Texas Coastal Management Program Final EIS   Part II 4-83                           August 1996

      A.   Development of publicly funded infrastructure shall be authorized only if it is essential
           for public health, safety, and welfare, enhances public use, or is required by law.

      B.   Infrastructure shall be located at sites at which reasonably foreseeable future expansion
           will not require development in critical areas, critical dunes, Gulf beaches, and washover
           areas within Coastal Barrier Resource System Units or Otherwise Protected Areas.

      C.   Infrastructure shall be located at sites that to the greatest extent practicable avoid and
           otherwise minimize the potential for adverse effects on critical areas, critical dunes, Gulf
           beaches, and washover areas within Coastal Barrier Resource System Units or Otherwise
           Protected Areas from:

              1. construction and maintenance of roads, bridges, and causeways; and

              Hi. direct release to coastal waters, critical areas, critical dunes, Gulf beaches, and
                   washover areas within Coastal Barrier Resource System Units or Otherwise
                   Protected Areas of oil, hazardous substances, or stormwater runoff.

      D.  Where practicable, infrastructure shall be located in existing rights-of-way or previously
           disturbed areas to avoid or minimize adverse effects within Coastal Barrier Resource
           System Units or Otherwise Protected Areas.

      E.   Development of infrastructure shall occur at sites and times selected to have the least
           adverse effects practicable within Coastal Barrier Resource System Units or Otherwise
           Protected Areas on critical areas, critical dunes, Gulf beaches, and washover areas and on
           spawning or nesting areas or seasonal migrations of commercial, recreational, threatened,
           or endangered terrestrial or aquatic wildlife.

    Manakgement Authority and Administration

    The TNRCC has the statutory authority to create and supervise certain water and water-related
    districts and to approve the issuance and sale of bonds for a district's construction of
    infrastructure in accordance with Texas Water Code, Chapters 50-52, 54, 65, and 66. TNRCC
    rules and approvals for the creation of special districts or for infrastructure projects funded by
    issuance of bonds by water, sanitary sewer, and wastewater drainage districts; water control and
    improvement districts; municipal utility districts; regional plan implementation agencies; special
    utility districts; stormwater control districts; and all other general and special law districts within
    the TNRCC's jurisdiction must comply with the policies in this category.

    A district may include the area in all or part of any one or more counties including all or part of
    any cities and other public agencies. The land composing a district is not required to be
    contiguous, but may consist of separate bodies of land separated by land that is not included in
    the district (TEX. WATER CODE ANN. �65.013).

    The purpose of the TNRCC's oversight of district creation and projects is to ensure that the
    districts fulfill their obligation under article III, �52, and article XVI, �59, of the Texas
    Constitution to conserve and develop the natural resources of the state in a manner not contrary

    Texas Coastal Management Program Final EIS    Part II 4-84                           August 1996

    to the public health, safety, and welfare. Regulations in 30 TAC Chapters 293 and 301 authorize
    the TNRCC to review certain information when deciding whether to approve creation of a
    district or the use of bonds to finance construction of infrastructure. This includes the location of
    the infrastructure, land and floodwater elevations, areas to be filled, existing hydrologic
    conditions, floodplain boundaries, and the effects of the infrastructure on stormwater runoff and
    water quality.

    TxDOT rules and approvals governing planning, design, construction, and maintenance of
    transportation projects under Texas Civil Statutes, article 6663 et seq., must comply with the
    policies in this category. TXDOT's authorities and guidelines regarding transportation projects
    are described in this chapter under Policy Category 16, "Transportation."

    The Texas Transportation Commission is authorized to locate, construct, maintain, and operate
    the state highway system (TEX. REV. CIV. STAT. ANN. art. 6674w-1). This authority includes
    the power of eminent domain (TEX. REV. CIV. STAT. ANN. art. 6674w-3).

    Exemptions

    Creation of a Special Purpose District or Approval of Bonds for the Purpose of
    Construction of Infrastructure on Coastal Barriers. None.

    Transportation Construction Project or Maintenance Program. None.

    Variances

    Creation of a Special Purpose District or Approval of Bonds for the Purpose of
    Construction of Infrastructure on Coastal Barriers. None.

    Transportation Construction Project or Maintenance Program. None.

    Monitoring and Enforcement

    Creation of a Special Purpose District or Approval of Bonds for the Purpose of
    Construction of Infrastructure on Coastal Barriers. The executive director of the TNRCC
    has access to all the financial records of a special purpose district (TEX. WATER CODE ANN.
    �50.376). Special purpose districts are required to undergo annual audits which are subject to
    review by the executive director of the TNRCC (TEX. WATER CODE ANN. �50.371 et seq.).
    Districts which do not comply with the audit requirements are subject to civil penalties of $100
    per day (TEX. WATER CODE ANN. �50.374).

    Transportation Construction Project or Maintenance Program. Not applicable.

    AMencv's Authority to Regulate or Condition Listed Action to Satisfy TCMP Policv

    Creation of a Special Purpose District or Approval of Bonds for the Purpose of
    Construction of Infrastructure on Coastal Barriers. If a proposed district does not conform
    to legal requirements or is not feasible, practicable, necessary, or a benefit to the land in the

    Texas Coastal Management Program Final EIS   Part II 4-85                         August 1996

    district, the TNRCC may deny the creation of the district (TEX. WATER CODE ANN.
    �65.021).

    Transportation Construction Project or Maintenance Program. The Texas Transportation
    Commission is required to conduct environmental reviews of all highway projects not otherwise
    subject to the National Environmental Policy Act (42 U.S.C.A. �4321 et seq.). The
    environmental review process provides for public comment, the analysis of project alternatives,
    the evaluation of direct and indirect effects, and the mitigation of environmental harm (TEX.
    REV. CIV. STAT. ANN. art. 6673g and 43 TAC ��1 1.80-11.90). The Commission is also
    required to adopt a memorandum of understanding with each state agency that has
    responsibilities for the protection of the natural environment so as to coordinate the review of the
    environmental impacts of highway projects.

    Texas Coastal Management Program Final EIS   Part II 4-86                        August 1996

    POLICY CATEGORY 14: DEVELOPMENT IN STATE PARKS, WILDLIFE
    MANAGEMENT AREAS, OR PRESERVES

    State Aeencv Action and Managed Uses

    TPWD - Development by a Person Other than the Texas Parks and Wildlife Department
    that Requires the Use or Taking of any Public Land in a State Park, Wildlife Management
    Area, or Preserve
    (TEX. NAT. RES. CODE ANN. �33.2053(h)(4))

    Development efforts in state parks, wildlife management areas, and preserves, including the
    construction of park improvements and access roads. All state parks, wildlife management areas,
    and preserves within the coastal zone are covered.

    Policies

    Development by a person other than the Texas Parks and Wildlife Department that requires the
    use or taking of any public land in such areas shall comply with Parks and Wildlife Code Chapter
    26.

    Manaaement Authority and Administration

    Chapter 26 of the Parks and Wildlife Code limits development on protected lands. The statute
    states that a governmental entity of the state may not approve any program or project that
    requires the use or taking of any public land designated and used as a park, recreation area,
    scientific area, wildlife refuge, or historic site unless the approving entity determines that (1)
    there is no feasible and prudent alternative to the use or taking of such land; and (2) the program
    or project includes all reasonable planning to minimize harm to the land, for purposes for which
    it is designated, resulting from the use or taking. There are also provisions for consideration of
    local preferences for the area, public notice, public hearings, and judicial reviews. The Parks and
    Wildlife Commission's environmental policy directs the TPWD to use sound principles of natural
    resource management in all activities and in operation of department facilities.

    The Texas Coastal Preserve System established in October 1987 can be used to protect and
    restore specific state-owned areas for their conservation, ecological, and aesthetic values. The
    Coastal Preserve System was established through a Memorandum of Agreement (MOA) between
    the General Land Office and the Texas Parks and Wildlife Department. The MOA provides for:
    (1) a coastal preserve coordinator to be designated at each agency to ensure that all concerns are
    addressed, (2) development of a list of candidate sites with suggested goals and management
    activities to most effectively preserve the target natural resources, and (3) public meetings to be
    held near suggested preserve sites for open discussion of coastal preserve goals and management
    activities and for receipt of comments.

    To date, four coastal preserves have been designated. South Bay is a 3,419-acre estuarine area at
    the southernmost extreme of the Laguna Madre. It comprises seagrass, algal flats, and mangrove
    habitats and a unique oyster population that has adapted to high salinity levels. Welder Flats is

    Texas Coastal Management Program Final EIS   Part II 4-87                         August 1996

    an area of approximately 1,480 acres of submerged land across San Antonio Bay from the
    Aransas National Wildlife Refuge. This area is an important whooping crane habitat.

    Armand Bayou is a 2,000-acre recreation and wilderness area adjacent to the Armand Bayou
    Nature Center in Harris County. It is surrounded by the heavy urban development of the
    Houston area. Christmas Bay, a shallow, 4,173-acre embayment adjacent to the Brazoria
    National Wildlife Refuge, is relatively unaffected by human activity. Though 15 threatened or
    endangered species have been seen in the area, the bay is best known for the mounds of oyster
    and clam shells that remain on its shores as evidence of previous occupation by the now extinct
    Karankawa Indians.

    Exemptions

    Development by a Person Other than the Texas Parks and Wildlife Department that
    Requires the Use or Taking of any Public Land in a State Park, Wildlife Management
    Area, or Preserve. None.

    Variances

    Development by a Person Other than the Texas Parks and Wildlife Department that
    Requires the Use or Taking of any Public Land in a State Park, Wildlife Management
    Area, or Preserve. Not applicable.

    Monitoring and Enforcement

    Development by a Person Other than the Texas Parks and Wildlife Department that
    Requires the Use or Taking of any Public Land in a State Park, Wildlife Management
    Area, or Preserve. The state auditor reviews contracts for construction and development on
    state properties including state parks, wildlife management areas, and preserves.

    Agencyv's Authoritv to Regulate or Condition Listed Action to Satisfv TCMP Policv

    Development by a Person Other than the Texas Parks and Wildlife Department that
    Requires the Use or Taking of any Public Land in a State Park, Wildlife Management
    Area, or Preserve. The department has broad authority to regulate planning for and
    development of park projects (31 TAC �59.31).

    Texas Coastal Management Program Final EIS   Part II 4-88                    August 1996

    POLICY CATEGORY 15: ALTERATION OF COASTAL HISTORIC AREAS

    State Aiencv Action and Managed Uses

    THC - Permit for Destruction, Alteration, or Taking of a Coastal Historic Area
    (TEX. NAT. RES. CODE ANN. �33.2053(E)(1))

    A permit is required for the taking, altering, damaging, destroying, salvaging, or excavating of
    state archeological landmarks. Permits are also required for site-assessment-related activities,
    such as surveys, testing, excavation, and preservation activities and for specially designated
    archeological landmarks on private property, as well as American Indian or aboriginal paintings
    (13 TAC �41.20 and �41.2).

    THC - Review of a Federal Undertaking Affecting a Coastal Historic Area
    (TEX. NAT. RES. CODE ANN. �33.2053(E)(2))

    Federal undertakings affecting property listed in the National Register or affecting property
    eligible for inclusion in the National Register. Such properties are nationally significant for their
    illustration or commemoration of the history or prehistory of the United States (36 CFR Part 800
    and 36 CFR Part 60).

    Policies

    The Texas Historical Commission shall comply with the policies in this category when adopting
    rules and issuing permits under the Texas Natural Resources Code, Chapter 191, governing
    alteration of coastal historic areas. The THC shall comply with the policies in this category
    when issuing reviews under the National Historic Preservation Act, �106 (16 U.S.C.A. �470f),
    and the regulations enacted pursuant thereto (36 CFR Chapter 1, Part 63).

      1.   Development affecting a coastal historic area shall avoid and otherwise minimize
           alteration or disturbance of the site unless the site's excavation will promote historical,
           archaeological, educational, or scientific understanding.

    Management Authority and Administration

    The enabling legislation of the Texas Historical Commission directs the agency to protect and
    preserve the cultural resources of Texas. Cultural resources include archaeological sites,
    historical sites, and shipwrecks on land or underwater. For projects strictly on private property,
    the agency offers historic preservation advice. If the project requires a federal permit or involves
    federal funding, regardless of the land ownership, THC applies federal guidelines and rules under
    �106 of the National Historic Preservation Act (16 U.S.C.A. �470 et seq.). A permit is required
    for the taking, altering, or destruction of cultural resources on public land. The Texas Antiquities
    Code includes enforcement with misdemeanor criminal penalties (TEX. NAT. RES. CODE
    Chapter 191, �171) and injunctive relief (TEX. NAT. RES. CODE Chapter 191, �172).
    Members of the public also can file charges under Texas Natural Resources Code, Chapter 191,
    �173.

    Texas Coastal Management Program Final EIS    Part II 4-89                           August 1996

    The THC must comply with the policies in this category when adopting rules and issuing permits
    under the Texas Natural Resources Code, Chapter 191, governing alteration of coastal historic
    areas. The THC must comply with the policies in this category when issuing reviews under the
    National Historic Preservation Act, � 106 (16 U.S.C.A. �470f), and the regulations enacted
    pursuant thereto (36 CFR Part 800).

    The Texas Historical Commission regulates and protects all State Archeological Landmarks
    under the Antiquities Code of Texas. The commission issues permits for this purpose. Civil and
    criminal penalties are provided for unpermitted destruction, damage, modification, or alteration
    of State Archeological Landmarks.

    A State Archeological Landmark includes any cultural resource or site located in, on, or under
    the surface of any lands belonging to or controlled by the state, including submerged lands, or
    owned by any county, city, or other political subdivision of the state, as defined in the Texas
    Natural Resources Code, Title 9, Chapter 191, �191.003(4).

    Through the consultation process, the federal agency and the state historic preservation officer
    (SHPO) consider alternatives to the proposed federal undertaking to avoid or otherwise minimize
    adverse impacts on both listed sites and eligible sites.

    Exemptions

    Permit for Destruction, Alteration, or Taking of a Coastal Historic Area. All landmarks
    require a permit except nonpublic interior spaces of historical structures. The public interior
    spaces which are not exempt are those which were originally intended for public use or those
    which are of overriding importance to the public because of any significant historical,
    architectural, cultural, or ceremonial value (13 TAC �41.22(a)(4)).

    Review of a Federal Undertaking Affecting a Coastal Historic Area. The National Historic
    Preservation Act (NHPA) calls for federal agencies to take historic properties into account in
    their undertakings, and allows state consultation (through the THC) and public involvement in
    historic preservation matfers. The term "undertaking" takes on a specific and important meaning
    in the NHPA, and applies only to federal agencies.

    "Undertaking" means any project, activity, or program that can result in changes in the character
    or use of historic properties. The project, activity, or program must be under the direct or
    indirect jurisdiction of a federal agency or licensed or assisted by a federal agency. Undertakings
    include new and continuing projects, activities, or programs and any of their elements not
    previously considered under �106 of the NHPA (36 CFR, Part 800).

    Thus, if there is no direct or indirect federal involvement in a project, activity, or program, these
    are not considered undertakings, and are exempted from regulation under the NHPA.

    The Antiquities Code of Texas has jurisdiction over all state-owned or state-controlled lands, as
    defined above. Actions, projects, activities or programs taking place on privately owned lands
    are thus exempt from regulation under the Code.

    Texas Coastal Management Program Final EIS   Part U 4-90                            August 1996

    Variances

    Permit for Destruction, Alteration, or Taking of a Coastal Historic Area. No power to
    waive the responsibility of obtaining a permit is granted to the commission (TEX. NAT. RES.
    CODE ANN. �191.054).

    Review of a Federal Undertaking Affecting a Coastal Historic Area. None.

    Monitorine and Enforcement

    Permit for Destruction, Alteration, or Taking of a Coastal Historic Area. Permits are
    usually granted for a period of two years or less (13 TAC �41.17(c)). Any member or agent of
    the commission and any officer in charge of land owned by the state may, at any time, visit the
    investigation site under permit and examine the permit, records, materials, and specimen being
    recovered (13 TAC �41.18).

    Failure to comply with the rules of the commission or the terms of a permit may result in the
    cancellation of the permit by the commission and the immediate removal of all personnel and
    equipment from the site (13 TAC �41.3).

    Review of a Federal Undertaking Affecting a Coastal Historic Area. The Commission seeks
    to ensure that all federal agencies proposing federal undertakings affecting listed and eligible
    sites in Texas comply with the consultation requirements of the NI-PA and with any agreed
    alternatives following from such consultations.

    Agenev's Authoritv to Regulate or Condition Listed Action to Satisfv TCMP Policy

    Permit for Destruction, Alteration, or Taking of a Coastal Historic Area. TEX. REV. CIV.
    STAT. ANN. art. 6145-9 authorizes the commission to provide for a system of permits and
    contracts for salvage of treasures embedded in the earth and the excavation or study of
    archeological and historical sites and objects.

    Review of a Federal Undertaking Affecting a Coastal Historic Area. Before approval of a
    federal undertaking, the federal agency proposing the action must consult with the SHPO. The
    federal agency is not obligated to adopt the alternatives or conditions the SHPO proposes but is
    obligated to comply with applicable TCMP policies.

    Texas Coastal Management Program Final EIS   Part II 4-91                         August 1996

    POLICY CATEGORY 16: TRANSPORTATION

    State Avencv Action and Manaced Uses

    TxDot - Transportation Construction Project or Maintenance Program (TEX. NAT. RES.
    CODE ANN. �33.2053(d)(2))

    Texas Transportation Commission approvals of plans for the location, construction, and
    maintenance of the state highway system and public roads and of the location, construction, and
    maintenance of individual state highway system projects.

    Policies

    TxDOT rules and project approvals under Texas Civil Statutes, articles 6663b and 6663c, and
    Texas Civil Statutes, article 6674a et seq., governing transportation projects within the coastal
    zone, shall comply with the policies in this category.

    Transportation construction projects and maintenance programs within the coastal zone shall
    comply with the policies in this category.

     A.   Pollution prevention procedures shall be incorporated into the construction and
           maintenance of transportation projects to minimize pollutant loading to coastal waters
           from erosion and sedimentation, use of pesticides and herbicides for maintenance of
           rights-of-way, and other pollutants from stormwater runoff.

     B.   Transportation projects shall be located at sites that to the greatest extent practicable
           avoid and otherwise minimize the potential for adverse effects from construction and
           maintenance of additional roads, bridges, causeways, and other development associated
           with the project; and direct release to CNRAs of pollutants from oil or hazardous
           substance spills, contaminated sediments or stormwater runoff.

     C.   Where practicable, transportation projects shall be located in existing rights-of-way or
           previously disturbed areas if necessary to avoid or minimize adverse effects.

     D.   Where practicable, transportation projects shall be located at sites at which future
           expansion will not require development in coastal wetlands except where such
           construction is determined to be essential for evacuation in the case of a natural disaster.

     E.   Construction and maintenance of transportation projects shall avoid the impoundment
           and draining of coastal wetlands. If impoundment or draining cannot be avoided, adverse
           effects to the impounded or drained wetlands shall be mitigated in accordance with the
           sequencing requirements of Policy Category 8.

     F.   Construction of transportation projects shall occur at sites and times selected to have the
           least adverse effects practicable on recreational uses of CNRAs and on spawning or
           nesting seasons or seasonal migrations of terrestrial or aquatic species. i

    Texas Coastal Management Program Final EIS   Part H 4-92                           August 1996

      G. Beach-quality sand from maintenance of roadways adjacent to Gulf beaches shall be
           beneficially used by placement on Gulf beaches where practicable. Where placement on
           Gulf beaches is not practicable, the material shall be placed in critical dune areas.

    Management Authoritv and Administration

    TxDOT is responsible for statewide transportation plans and activities, including highways,
    aviation, mass transportation, railroads, high-speed rail, and water traffic under the authority of
    Texas Civil Statutes, articles 6663b and 6663c, and Texas Civil Statutes article 6674a et seq.
    Specific activities include the planning, construction, operation, and maintenance of the state
    highway and public road system (including associated bridges, culverts, and rights-of-way) and
    coordinating the planning, environmental review, land acquisition, and construction activities for
    general aviation non-reliever airports. TxDOT rules and project approvals governing
    transportation projects within the coastal zone must comply with the policies in this category.

    Title 43, TAC, Chapter 11 sets out rules for highway planning, construction, operation and
    maintenance; interagency coordination and public involvement; and procedures for
    environmental assessments and environmental impact statements. Mechanisms to manage the
    planning and development of highways and roads are included in the Procedures Manual for
    Highway Project Planning and Development, which also sets up coordination procedures for all
    environmental concerns. Standards specifications include measures for erosion and
    sedimentation control, waste disposal, earthwork, and revegetation during construction. Funds
    can be withheld if a project does not meet specifications. Procedures for maintenance of
    highways are included in the Maintenance and Operations Division Procedures Manual.

    Planning, design, construction, and improvement activities of general aviation airports are
    reviewed in accordance with NEPA and FAA guidelines, and appropriate environmental permits
    must be obtained prior to implementation. All airport construction projects must adhere to
    standard FAA construction guidelines and specifications, which also include measures for
    erosion and sedimentation control and stormwater runoff prevention.

    The Texas Transportation Commission is authorized to locate, construct maintain, and operate
    the state highway system (TEX. REV. CIV. STAT. ANN. art. 6674w-1). This authority includes
    the power of eminent domain (TEX. REV. CIV. STAT. ANN. art. 6674w-3).

    Exemptions

    Transportation Construction Project or Maintenance Program. None.

    Variances

    Transportation Construction Project or Maintenance Program. None.

    Monitoring and Enforcement

    Transportation Construction Project or Maintenance Program. Not applicable.

    Texas Coastal Management Program Final EIS   Part II 4-93                        August 1996

    Aaencv's Authority to Regulate or Condition Listed Action to Satisfy TCMP Policy

    Transportation Construction Project or Maintenance Program. The Texas Transportation
    Commission is required to conduct environmental reviews of all highway projects not otherwise
    subject to the National Environmental Policy Act (42 U.S.C.A. �4321 et seq.). The
    environmental review process provides for public comment, the analysis of project alternatives,
    the evaluation of direct and indirect effects, and the mitigation of environmental harm (TEX.
    REV. CIV. STAT. art. 6673g and 43 TAC ��11.80-11.90).

    The Commission is also required to adopt a memorandum of understanding with each state
    agency that has responsibilities for the protection of the natural environment so as to coordinate
    the review of the environmental impacts of highway projects.

    Texas Coastal Management Program Final EIS   Part II 4-94                        August 1996

    POLICY CATEGORY 17: EMISSION OF AIR POLLUTANTS

    State Aeencv Action and Managed Uses

    TNRCC - Rules governing emissions of air pollutants
    (TEX. NAT. RES. CODE ANN. �33.2051(b)(1))

    Policies

    TNRCC rules under Texas Health and Safety Code, Chapter 382, governing emissions of air
    pollutants, shall comply with regulations at Code of Federal Regulations, Title 40, adopted
    pursuant to the Clean Air Act, 42 United States Code Annotated, �7401 et seq., to protect and
    enhance air quality in the coastal area so as to protect CNRAs and promote the public health,
    safety, and welfare.

    Management Authority and Administration

    Texas Health and Safety Code, Chapter 382, also referred to as the Texas Clean Air Act,
    establishes the authority of the TNRCC to adopt any rules necessary to carry out its duties under
    the Act, including the establishment of air quality standards and of a permitting program for air
    emissions. The TNRCC is also designated as the agency responsible for developing a
    comprehensive plan for proper control of air pollution sources.

    Regulations in 30 TAC Chapters  111-114 address the control of air pollution from particulate
    matter, sulfur compounds, toxic materials, and mobile sources. Title 30, Chapter 115, addresses
    the control of air pollution from volatile organic compounds such as petroleum refining and
    petrochemical processes, solvent-using processes, and other miscellaneous industrial sources.
    Title 30, Chapter 116, sets forth permit requirements for new construction or modification,
    including detailed information concerning permit requirements, responsibility for obtaining a
    permit or exemption, consideration for granting permits to construct and operate facilities,
    special conditions, exempted facilities, and emergency orders for damaged facilities.

    Texas Coastal Management Program Final EIS   Part II 4-95                         August 1996

    POLICY CATEGORY 18: APPROPRIATIONS OF WATER

    State AMencv Action and Manaced Uses

    TNRCC - New Permit for an Annual Appropriation of 5,000 or More Acre-Feet of Water
    Within the Program Boundary or 10,000 or More Acre-Feet of Water Outside the Program
    Boundary but Within 200 Stream Miles of the Coast
    (TEX. NAT. RES. CODE ANN. �33.2053(0(8))

    No person may appropriate any state water or begin construction of any work designed for the
    storage, taking, or diversion of water without first obtaining a permit from the TNRCC to make
    the appropriation (TEX. WATER CODE ANN. � 11.121).

    TNRCC - Amendment to a Water Permit for an Increase in an Annual Appropriation of
    5,000 or More Acre-Feet of Water Within the Program Boundary or 10,000 or More Acre-
    Feet of Water Outside the Program Boundary but Within 200 Stream Miles of the Coast
    (TEX. NAT. RES. CODE ANN. �33.2053(0(9))

    All holders of permits must obtain permission to change the use, the place of use, purpose of use,
    point of diversion, rate of diversion, acreage to be irrigated, or otherwise alter a water right
    (TEX. WATER CODE ANN. �11.122).

    TNRCC - Declaration of an Emergency and Request for an Emergency Release of Water
    (TEX. NAT. RES. CODE ANN. �33.2053(0(7))

    Upon a determination by the TNRCC that an emergency exists, the Texas Water Development
    Board may release unappropriated water and other water of the state stored in any facility
    acquired by and under the control of the board to relieve any emergency condition arising from
    drought, severe water shortage, or public calamity (TEX. WATER CODE ANN. �16.195).
    Facilities from which water may be released that can effectively relieve the emergency
    conditions arising from drought, severe water shortage, or public calamity.

    Policies

    The TNRCC rules and authorizations under Texas Water Code, Chapter 11, governing review
    and action on applications for new permits or amendments proposing changes to existing permits
    for diversions or impoundments of state water within 200 stream miles of the coast, and TNRCC
    rules and approvals governing creation of districts and issuance of district bonds for levee and
    flood control projects within the coastal zone, shall comply with the policies in this category.

    Impoundments and diversion of state water within 200 stream miles of the coast, to commence
    from the mouth of the river thence inland, shall comply with the policies in this category.

     A. The TNRCC shall administer the law so as to promote the judicious use and maximum
           conservation and protection of the quality of the environment and the natural resources of
          the state. It is the public policy of the state to provide for the conservation and

    Texas Coastal Management Program Final EIS   Part II 4-96                        August 1996

                      development of the state's natural resources, including:

    Is i~~~~.  the control, storage, preservation, and distribution of the state's storm and
                            floodwaters and the waters of its rivers and streams for irrigation, power, and
                            other useful purposes;

                     Hi.    the reclamation and irrigation of the state's arid, semiarid, and other land needing
                            irrigation;

                     Mi.    the reclamation and drainage of the state's overflowed land and other land needing
                            drainage;

                     iv.    the conservation and development of its forest, water, and hydroelectric power;

                     V.     the navigation of the state's inland and coastal waters; and

                     vi.    the maintenance of a proper ecological environment of the bays and estuaries of
                            Texas and the health of related living marine resources.

               B.   In this policy category, "beneficial inflows" means a salinity, nutrient, and sediment
                     loading regime adequate to maintain an ecologically sound environment in the receiving
                     bay and estuary system that is necessary for the maintenance of productivity of
                     economically important and ecologically characteristic sport or commercial fish and
                     shellfish species and estuarine life upon which such fish and shellfish are dependent.

               C.   In its consideration of an application for a permit to store, take, or divert water, the
                     TNRCC shall assess the effects, if any, of the issuance of the permit on the bays and
                     estuaries of Texas. For permits issued within an area that is within 200 river miles of the
                     coast, to commence from the mouth of the river thence inland, the TNRCC shall include
                     in the permit, to the greatest extent practicable when considering all public interests,
                     those conditions considered necessary to maintain beneficial inflows to any affected bay
                     and estuary system.

               D.   For the purposes of making a determination under paragraph (C), the TNRCC shall
                     consider among other factors:

                     1.     the need for periodic freshwater inflows to supply nutrients and modify salinity to
                            preserve the sound environment of the bay or estuary, using any available
                            information, including studies and plans specified in and other studies considered
                            by the TNRCC to be reliable; together with existing circumstances, natural or
                            otherwise, that might prevent the conditions imposed from producing benefits;

                     ii.    the ecology and productivity of the affected bay and estuary system;

                     iii.    the expected effects on the public welfare of not including in the permit some or
                            all of the conditions considered necessary to maintain the beneficial inflows to the
                            affected bay or estuary;

             Texas Coastal Management Program Final EIS    Part 11 4-97                           August 1996

           iv.    the quantity of water requested and the proposed use of water by the applicant, as
                   well as the needs of those who would be served by the applicant;

           V.     the expected effects on the public welfare of the failure to issue all or part of the
                   permit being considered; and

           vi.    for the purposes of this policy, the declarations as to preferences for competing
                   uses of water as found in Texas Water Code, � 11.024 and � 11.033, as well as the
                  public policy statement in paragraph (A).

      E.   In its consideration of an application to store, take, or divert water, the TNRCC shall
           consider the effect, if any, of the issuance of the permit on existing instream uses and
           water quality of the stream or river to which the application applies. The TNRCC shall
           also consider the effect, if any, of the issuance of the permit on fish and wildlife habitats.

      F.   On receipt of an application for a permit to store, take, or divert water, the TNRCC shall
           send a copy of the permit application and any subsequent amendments to the TPWD. In
           making a final decision on any application for a permit, the TNRCC, in addition to other
           information, evidence, and testimony presented, shall consider al information, evidence,
           or testimony presented by the TPWD and the TWDB.

     G.   Permit conditions relating to beneficial inflows to affected bays and estuaries and
           instream uses may be suspended by the TNRCC if the TNRCC finds that an emergency
           exists and cannot practically be resolved in other ways. Before the TNRCC suspends a
           permit, it must give written notice to the T`PWD of the proposed suspension. The
           TNRCC shall give the TPWD an opportunity to submit comments on the proposed
           suspension within 72 hours from such time and the TNRCC shall consider those
           comments before issuing its order imposing the suspension.

     H.   In its consideration of an application for a permit under this policy, the TNRCC shall
           assess the effects, if any, of the issuance of the permit on water quality in coastal waters.
           In its consideration of an application for a permit to store, take, or divert water in excess
           of 5,000 acre-feet per year, the commnission shall assess the effects, if any, of the issuance
           of the permit on fish and wildlife habitats and may require the applicant to take
           reasonable actions to mitigate adverse effects on such habitat. In determining whether to
           require an applicant to mitigate adverse effects on a habitat, the TNRCC may consider
           any net benefit to habitat produced by the project. The TNRCC shall offset against any
           mitigation required by the United States Fish and Wildlife Service pursuant to Code of
           Federal Regulations, Title 33, ��320-330, any mitigation authorized by this policy.

        1. Unappropriated water and other water of the state stored in any facility acquired by and
           under the control of the TWDB may be released without charge to relieve any emergency
           condition arising from drought, severe water shortage, or other calamity, if the TNRCC
           first determines the existence of the emergency and requests the TWDB to release the
           water.

    Texas Coastal Management Program Final EIS    Part HI 4-98                          August 1996

      J.   Five percent of the annual firm yield of water in any reservoir and associated works
           constructed with state financial participation within 200 river miles of the coast, to
           commence from the mouth of the river thence inland, is appropriated to the TPWD for
           use to make releases to bays and estuaries and for instreant uses, and the TNRCC shall
           issue permits for this water to the TPWD under procedures adopted by the TNRCC. This
           applies only to reservoirs and associated works on which construction begins on or after
           September 1, 1985. This policy does not limit or repeal any other authority of or law
           relating to the TPWD or the TNRCC.

      K.   The TWDB, in coordination with the TNRCC and TPWD, shall identify ways to assist in
           providing flows to meet instream needs, including protection of water quality, protection
           of terrestrial or aquatic wildlife habitat, and bay and estuary inflow needs, in the
           implementation of the Texas Water Bank, Texas Water Code, Chapter 15, Subchapter K.
           This may include, but not be limited to, the purchase by the TPWD and/or the TWDB of
           water rights deposited in the Texas Water Bank in order to provide for existing instreanm
           uses and beneficial inflows to bays and estuaries if funds are available and such purchase
           is not prohibited by law. The TNRCC shall facilitate the approval of any necessary
           permit amendments to achieve this purpose.

      L.   An applicant for a new or amended water right permit shall submit a water conservation
           plan in accordance with 30 TAC �295.9 (relating to Conservation Plan). The TNRCC
           shall consider the information contained in the conservation plan in determining whether
           any feasible alternative to the proposed appropriation exists, whether the proposed
           amount to be appropriated as measured at the point of diversion is reasonable and
           necessary for the proposed use, the term and other conditions of the water right and to
           ensure that reasonable diligence will be used to avoid waste and achieve water
           conservation. Based upon its review, the TNRCC may deny or grant, in whole or in part,
           the requested appropriation.

    Management Authority and Administration

    The TNRCC has sole authority for the regulation and management of surface water rights in
    Texas, as authorized by Chapter 11 of the Texas Water Code. The TNRCC rules and
    authorizations governing review and actions on applications for new permits, or amendments
    proposing changes to existing permits for diversion or impoundments of state water within 200
    stream miles of the coast, must comply with the policies in 31 TAC �501.14(r). TNRCC rules
    and approval governing the creation of districts and issuance of district bonds for levee and flood
    control projects within the coastal zone must also comply with these policies.

    Title 30, Chapter 288, of the Texas Administrative Code establishes guidelines and minimum
    requirements for water conservation plans required by the TNRCC regulatory programs,
    including water rights administration. Title 30, Chapter 295, contains content and notice
    requirements for a water right application. Title 30, Chapter 299, establishes regulations to
    provide for the safe construction, maintenance, repair, and removal of dams. Title 30, Chapter
    301, contains procedures for authorizing the construction of a levee or other improvement,
    including channel improvements, drainage works, and other projects on, along, or near any
    stream in order to control, regulate, or otherwise change the floodwater of the stream.

    Texas Coastal Management Program Final EIS   Part II 4-99                          August 1996

    Title 30, Chapter 297, sets forth conditions, restrictions, limitations, and/or provisions reasonably
    necessary for TNRCC approval or denial of a new or amended water right permit and defines the
    limits and responsibilities of all water right holders. For water right applications within 200
    stream miles of the coast, the TNRCC must include in the water right permit those conditions
    necessary to maintain beneficial inflows to any affected bay and estuary system. On an
    application to amend a water right, including an amendment for the sale or transfer of conserved
    water, the commission must consider the instream needs for water quality, aquatic and riparian
    habitat, bays and estuaries, and other public purposes. The TNRCC may reserve from
    appropriation water necessary to protect these instream uses by placing limitations and
    conditions on the amended water right. These may include stream flow restrictions to protect
    existing water right holders, water quality, aquatic fish and wildlife habitat, inflows for bays and
    estuaries, and recreational uses; habitat mitigation measures; and water conservation measures.

    The commission regulates all waters of the state, including every bay or arm of the Gulf of
    Mexico and including any water imported from any source outside the boundaries of the state for
    use in the state and which is transported through the beds and banks of any navigable stream
    within the state or by utilizing any facilities owned or operated by the state (TEX. WATER
    CODE ANN. �11.021).

    Exemptions

    New Permit for an Annual Appropriation of Water and Amendment to a Water Permit. A
    person who is drilling and producing petroleum and conducting operations associated with
    drilling and producing petroleum may take a certain amount of state water from the Gulf of
    Mexico and adjacent bays and arms of the Gulf of Mexico without a permit (TEX. WATER
    CODE ANN. �11.142). Without obtaining a permit a person engaged in mariculture on land
    may take a certain amount of state water from the Gulf of Mexico and adjacent bays and arms of
    the Gulf of Mexico (TEX. WATER CODE ANN. �11.1421).

    Declaration of an Emergency and Request for an Emergency Release of Water. None.

    Variances

    New Permit for an Annual Appropriation of Water and Amendment to a Water Permit.
    None.

    Declaration of an Emergency and Request for an Emergency Release of Water. None.

    Monitorina and Enforcement

    New Permit for an Annual Appropriation of Water and Amendment to a Water Permit.
    Permit conditions may be suspended by the commission ifan emergency exists and cannot
    practically be solved in other ways (TEX. WATER CODE � 11.148). Persons unlawfully using
    state water may be subject to civil penalties of $1,000 per day (TEX. WATER CODE ANN.
    �11.082).

    Texas Coastal Management Program Final EIS   Part II 4-100                        August 1996

    Declaration of an Emergency and Request for an Emergency Release of Water. The Texas
    Parks and Wildlife Commission and other resource agencies of the state may monitor for
    emergency conditions and may petition the commission for an emergency determination where
    circumstances warrant.

    Agencv's Authority to Regulate or Condition Listed Action to Satisfy TCMP Policy

    New Permit for an Annual Appropriation of Water and Amendment to a Water Permit.
    The TNRCC may require amendment of the application, maps, or other materials to achieve
    necessary compliance (TEX. WATER CODE ANN. �11.129).

    Declaration of an Emergency and Request for an Emergency Release of Water. Where
    emergency conditions are adversely affecting an estuary or other coastal natural resource area, an
    emergency determination may be issued to address such adverse effects.

    Texas Coastal Management Program Final EIS   Part H 4-101                      August 1996

    POLICY CATEGORY 19: LEVEE AND FLOOD CONTROL PROJECTS

    State Agencv Action and Manaaed Uses                                                                     0

    TNRCC - Levee Improvement or Flood Control Projects
    (TEX. NAT. RES. CODE ANN. �33.2053()(5))

    The TNRCC must approve construction, attempted construction, or maintenance of any levee or
    other such improvement on, along, or near any stream of this state that is subject to floods,
    freshets, or overflows so as to control, regulate, or otherwise change the floodwater of the stream
    (TEX. WATER CODE ANN. �{16.233). The TNRCC must approve levee improvement district
    proposed plans of reclamation, which include the application filed by a levee improvement
    district. The application is composed of the U.S. Army Corps of Engineers district engineer's
    reclamation report, which shall include economic data, maps, profiles, and results of land
    surveys, and the preliminary plan for levees or other improvements (30 TAC �301.4).

    Policies

    TNRCC rules and approvals for the levee construction, modification, drainage, reclamation,
    channelization, or flood- or floodwater-control projects, pursuant to the Texas Water Code,
    � 16.236, shall comply with the policies in this category.

      !.   Drainage, reclamation, channelization, levee construction or modification, or flood- or
           floodwater-control infrastructure projects shall be designed, constructed, and maintained
           to avoid the impoundment and draining of coastal wetlands to the greatest extent
           practicable. If impoundment or draining of coastal wetlands cannot be avoided, adverse
           effects to the wetlands shall be mitigated in accordance with the sequencing requirements
           found in the critical areas policy.

    Management Authority and Administration

    TNRCC rules and approvals for levee construction or modification, drainage, reclamation,
    channelization, or flood or floodwater control projects, pursuant to Texas Water Code � 16.236,
    must comply with the policies in this category. Texas Water Code � 16.236 requires that the
    TNRCC approve plans before anyone can construct or maintain a levee or other such
    improvement on, along, or near any state stream that is subject to floods, freshets, or overflows in
    order to control, regulate, or otherwise change the floodwater of the stream. 30 TAC Chapter
    301 establishes rules for TNRCC review and approval of levee district reclamation plans and
    plans for levees and other improvements, such as channel improvements and drainage works.
    The TNRCC may approve, approve with modifications, or disapprove the following specific
    plans.

    1. Preliminary Engineering Plans for Levees or Other Improvements Pursuant to Texas
    Water Code Chapter 16. These plans should clearly reflect the design concept and indicate
    how the design was developed, including the location and extent of the proposed works; the
    location and ownership of similar existing works such as levees, channels, reservoirs, and dams;
    ownership of properties that are within or adjacent to, or that may be affected by, the project; and

    Texas Coastal Management Program Final EIS   Part II 4-102                        August 1996

               certain flood data. The purpose of the review of these plans is to determine whether a project
    O         ~~~appears safe and is compatible with existing hydraulic conditions in the area. 30 TAC �301.34
               establishes criteria for approval of preliminary engineering plans. These include structural
               integrity; compatibility with existing hydraulic conditions; consideration of possible deleterious
               effects; safety to ensure that the project will not increase flooding or divert waters in such a way
               that any person's life or property will be endangered or subjected to significantly increased
               flooding or will create a public hazard; protection of third parties' rights; and consideration of
               topographic and hydrographic conditions.

               2. Final Engineering Plans and Specifications for Levees or Other Improvements Pursuant
               to Texas Water Code �16.236. Title 30, Texas Administrative Code, �301.38 establishes
               specific requirements for final channel excavation plans and final levee and dike construction
               plans.

               3. As-Built Plans. These are the engineering plans and specifications for levees or other
               improvements that reflect the structures as actually built and for which preliminary plans were
               approved.

               4. Proposed Plans of Reclamation. A proposed plan of reclamation is an application filed by a
               levee improvement district and composed of the district engineer's reclamation report. Upon
               approval, a proposed plan becomes a plan of reclamation.

               Projects must be inspected during construction and receive final certification by the TNRCC that
    .         ~~~they are in compliance with approved plans. Failure to comply with approved plans and
               specifications during construction, enlargement, repair, or alteration may result in revocation of
              the approval and/or civil penalties. The TNRCC may order the structure removed to eliminate a
               safety hazard to life and property.

               Exemp~tions

               Levee Improvement or Flood Control Projects. No commission approval is required for dams
               constructed by a person on his/her own property which impounds or contains 200 acre-feet of
              water or less, certain levees within the corporate limits of a city or town or within a political
               subdivision which has qualified for the National Flood Insurance Program as authorized by the
              National Flood Service, or projects implementing soil and water conservation practices approved
              by a soil and water conservation district (TEX. WATER CODE ANN. � 16.236).

              Texas Water Code � 16.23 6 exempts the following projects.

                 I1.   Dams permitted by the TNRCC, recognized as valid by final decree in a proceeding
                      under Subchapter G, Chapter I11 of the Texas Water Code or authorized by Texas Water
                      Code �11I.142.

                2.   Levees or other improvements within the corporate limits of a city or town, provided (a)
                      plans of construction and/or maintenance are approved by the city or town, and (b) the
                      city or town requires that plans be in substantial compliance with rules and standards
                      adopted by the TNRCC.

              Texas Coastal Management Program Final EIS   Part 11 4-103                          August 1996

      3.   Levees or improvements within the boundaries of any political subdivision which has
           qualified for the National Flood Insurance Program, provided (a) plans for the
           construction and/or maintenance are approved by the political subdivision, and (b) the
           political subdivision requires that such plans be in substantial compliance with rules and
           standards adopted by the TNRCC.

      4.   Projects implementing soil and water conservation practices in an approved conservation
           plan, provided that the governing board of a soil and water conservation district finds that
           the practices do not significantly affect stream flooding conditions on, along, or near a
           state stream.

    The TNRCC should be notified about these projects but is not required to approve the plans.
    Exempt projects located within the corporate limits of a city or town or within the boundaries of
    a political subdivision can be appealed by potentially affected parties to the TNRCC. If the
    appeal is accepted by the TNRCC for a hearing, the project is reviewed according to the TNRCC
    procedural rules (30 TAC Chapter 301). The commission regulates all activities specified in
    paragraph 1 within the state.

    Variances

    Levee Improvement or Flood Control Projects. Any person seeking a variance is required to
    file a petition with the commission. A person must have demonstrated continuous and substantial
    progress toward compliance before the date of petition (30 TAC � 101.15).

    Monitoring and Enforcement

    Levee Improvement or Flood Control Projects. Representatives of the executive director of
    the commission may enter any land or go on any water with appropriate equipment for the
    purpose of surveillance and inspection with reference to the proposed location of levees or other
    improvements (30 TAC �301.2). Persons in violation of an approval requirement are subject to
    civil penalties of $100 per day (TEX. WATER CODE ANN. �16.236).

    A2encv's Authoritv to Regulate or Condition Listed Action to Satisfv TCMP Policv

    Levee Improvement or Flood Control Projects. The executive director may request any
    additional pertinent information from the applicant which he deems necessary to evaluate the
    effects of a proposed project before the submission of the application to the commission (30
    TAC �301.35).

    Texas Coastal Management Program Final EIS   Part II 4-104                         August 1996

    POLICY CATEGORY 20: POLICY FOR MAJOR ACTIONS

      1.   For purposes of these policy categories, "major action" means an individual agency or
              subiviionaction listed in �505.1 1 of this title (relating to Actions and Rules Subject to
           the Coastal Management Program), �506.12 of this title (relating to Federal Actions
           Subject to the Coastal Management Program), or �505.60 of this title (relating to Local
           Government Actions Subject to the Coastal Management Program), relating to an activity
           for which a federal environmental impact statement under the National Environmental
           Policy Act, 42 United States Code Annotated, �4321 et seq. is required.

      2.   Prior to taking a major action, the agencies and subdivisions having jurisdiction over the
           activity shall meet and coordinate their major actions relating to the activity. The
           agencies and subdivisions shall, to the greatest extent practicable, consider the cumulative
           and secondary adverse effects, as described in the federal environmental impact
           assessment process, of each major action relating to the activity.

      3.   No agency or subdivision shall take a major action that is inconsistent with the goals and
           policies of this chapter. In addition, an agency or subdivision shall avoid and otherwise
           minimize the cumulative adverse effects to CNRAs of each of its major actions relating to
           the activity.

    Texas Coastal Management Program Final EIS   Part 11 4-105                           August 1996

    POLICY CATEGORY 21: ADMINISTRATIVE POLICIES

        IAgency and subdivision rules and ordinances subject to the TCMIP goals and policies, as I
           provided in 31 TAC �50 1.10O (relating to Compliance with Goals and Policies), shall:

           A.     require applicants to provide information necessary for an agency or subdivision
                  to make an informed decision on a proposed action listed in 31 TAC �505.11
                  (relating to Actions and Rules Subject to the Coastal Management Program) or 31
                  TAC �505.60 (relating to Local Government Actions Subject to the Coastal
                  Management Program);

           B.     identify the monitoring established to ensure activities authorized by actions listed
                  in 31 TAC �505.11 (relating to Actions and Rules Subject to the Coastal
                  Management Program) or 31 TAC � 505.60 (relating to Local Government
                  Actions Subject to the Coastal Management Program) comply with all applicable
                  requirements;

           C.     identify circumstances in which agencies and subdivisions have the authority to
                  issue variances from standards or requirements for the protection of CNRAs,
                  including the grounds for granting variances; and

           D.     take into account the national interest as defined in the Texas Submission
                  Document, Chapter Nine.

     2.   A threshold for referral adopted by an agency under the provisions of 31 TAC Chapter
           505 (relating to Council procedures for consistency reviews) of this title shall be set at a
           level that is reasonably calculated to ensure that actions that may have unique and
           significant adverse effects on CNRAs are above the threshold for referral.

    Texas Coastal Management Program Final EIS   Part II 4-106                         August 1996

    E.     Advisory Policies

    The TCMP recommends that the following policies be observed within the TCMP boundary.

    Planning

    P-1 Local governments are encouraged to protect CNRAs and guide development to areas
           where the necessary infrastructure already exists.

    P-2    Local governments are encouraged to develop comprehensive plans or regional master
           plans that set appropriate density limits in specified coastal areas and allow for adequate
           open space.

    P-3    Local governments are encouraged to develop comprehensive plans, economic
           development plans, or master plans that address the appropriate location and design of
           tourist attractions.

    P-4 Local governments are encouraged to develop comprehensive plans, master plans, or
           other appropriate means to discourage development in designated coastal hazard areas
           and other areas specifically protected under the TCMP.

    P-5   The appropriate state agencies are encouraged to pursue or provide funding for studying
           the feasibility of transporting sediment impounded behind watershed dams to the
           estuaries and the Gulf of Mexico.

    P-6    Local and regional governments are encouraged to develop outdoor recreation plans or
           master plans that allow for the orderly and environmentally sustainable development of
           outdoor recreation opportunities necessary for coastal citizens and tourists.

    P-7    State-designated regional planning agencies are encouraged to develop planning guides or
           regional plans that address the overall growth of the coastal zone, area-wide problems,
           and issues of common concern.

    Acquisition

    A-I    State agencies, local governments, federal agencies, and private nonprofit entities are
           strongly encouraged to acquire coastal lands (including coastal wetlands) to conserve
           CNRAs.

    Conservation/Preservation

    CP-1 Local governments are encouraged to develop plans or other mechanisms that designate
           areas for preservation of CNRAs and for educational and scientific research on CNRAs
           where commercial development will be limited to activities supporting these management
           functions (e.g., ecotourism).

    Texas Coastal Management Program Final EIS   Part II 4-107                         August 1996

    CP-2 Local governments and state agencies are encouraged to work cooperatively with
           landowners to further the goals and policies of the TCMP, including considering the use
           of economic incentives whenever possible.

    CP-3 Local governments are strongly encouraged to establish water conservation programs.

    CP4   Consideration should be given to the reuse of dredged material disposal sites for such
           purposes as the development of public parks, recreation areas, bird sanctuaries, or other
           wildlife habitat.

    Restoration

    R-l    Restoration of previously degraded or destroyed coastal wetlands is strongly encouraged.

    R-2   Restoration and stabilization of eroding shorelines with vegetation is encouraged.

    R-3   Restoration of urban waterfront areas is encouraged.

    Research/Education

    RE-I  Research and education about living and other natural resources of the coast, including
           terrestrial and aquatic wildlife habitat and coastal processes, is encouraged as long as it
           does not adversely affect CNRAs.                               is

    RE-2 Research on coastal management issues (e.g., cumulative and secondary adverse effects
           of resource uses) and conflicts between competing uses is strongly encouraged.

    Pollution Prevention/Recycling

    PP-I Source reduction, recycling, and pollution prevention are strongly encouraged.

    PP-2 Waterfront facility operators are encouraged to establish recycling programs and to provide
           recycling containers on the premises.

    Coastal Hazard Areas

    CH-1 Designated coastal hazard areas should be used passively, such as for parks or open
           space, rather than for intensive development.

    CH-2 Floodplain and watershed management and other nonstructural solutions to flooding
           should receive preference over the erection of dams or flood control structures.

    CH-3 Environmentally compatible restoration of eroded coastal shorelines is encouraged.

    CH-4  Where effective, sediment bypassing is encouraged in the construction and retrofitting of
           dams on rivers that flow into the coastal zone, and at new and existing jetties, groins, and
           other structures that interrupt sediment transport to the coastal sand budget.

    Texas Coastal Management Program Final EIS   Part II 4-108                        August 1996

    CH-5 Removal of existing erosion response structures having a negative impact on natural
           coastal processes is encouraged.

    CH-6 Activities that accelerate the natural coastal erosion process or increase coastal flood
           hazards should be avoided.

    CH-7 The placement of sand on Gulf beaches (e.g., from the maintenance of roadways or public
           rights-of-way) where it can benefit the coastal sand budget is encouraged.

    CH-8 Local governments and state and federal agencies, in issuing approvals for or undertaking
           coastal and shore protection projects, are encouraged to require a monitoring program to
           study the effects of the projects on CNRAs and natural coastal processes.

    CH-9 Local governments are encouraged to develop long-range plans for financing and
           executing beach nourishment projects.

    CH-lIO The use of setbacks by local governments for new construction in eroding coastal shore
           areas is encouraged.

    CH-lI I The relocation of structures threatened by coastal shoreline erosion is encouraged.

    CH-12 Local governments and state agencies are encouraged to avoid investing in infrastructure
           or facilities that support development in critical erosion areas.

    CH- 1 3 In areas of subsidence, local governments and state agencies are encouraged to ensure
           that critical areas and coastal shore areas are maintained by appropriate management of
           groundwater resources.

    CH--14 Construction in washover areas is discouraged.

    CH- 15 The minimizing of boat wakes to reduce coastal shoreline erosion is encouraged.

    Coastal Barriers

    GB-I Construction on coastal barriers should avoid adverse effects on critical areas, Gulf
           beaches, critical dune areas, coastal hazard areas, and washover areas.

    CB-2 Construction on coastal barriers should be sited to avoid or minimize the potential for
           adverse effects on critical areas, Gulf beaches, critical dune areas, coastal hazard areas, or
           washover areas.

    CB-3 Local governments and state agencies are encouraged to restrict the expenditure of state
           and local funds for infrastructure on undeveloped coastal barriers not within the Coastal
           Barrier Resources System or otherwise protected areas.

    Texas Coastal Management Program Final EIS   Part 11 4-109                         August 1996

    Coastal Shore Areas

    CSA-1         Local governments are encouraged to protect coastal shore areas that provide              0
                   habitat protection, protect uplands from erosion and coastal flooding, prevent
                   degradation of coastal water quality from stormwater runoff, and protect public
                   access.

    CSA-2         Local governments are encouraged to permit construction only in shore areas
                  where it will not adversely affect critical areas, Gulf beaches, critical dune areas,
                  coastal hazard areas, or washover areas.

    CSA-3         Runoff from construction located within coastal shore areas should be controlled
                  to avoid adverse effects on critical areas, Gulf beaches, critical dune areas, coastal
                  hazard areas, and washover areas.

    CSA-4         Local governments are encouraged to promote the use of vegetated buffers
                  between construction within coastal shore areas and critical areas, Gulf beaches,
                  critical dune areas, coastal hazard areas, or washover areas.

    CSA-5         Construction within coastal shore areas should be sited to avoid or minimize the
                  potential for adverse effects on critical areas, Gulf beaches, critical dune areas,
                  coastal hazard areas, or washover areas.

    CSA-6         Local governments are encouraged to consider sea level rise (projected for 50
                  years) in designing and constructing new development.

    Water Quality

    WQ-1 Persons engaged in agriculture are encouraged to employ best management practices to
           prevent nonpoint-source pollution.

    WQ-2 Local governments are encouraged to use best management practices to avoid or
           minimize nonpoint-source pollution from urban areas.

    WQ-3 Reduced use of pesticides and fertilizers for agriculture and in residential and
           commercial areas is encouraged to reduce contamination of surface waters.

    Public Access/Recreation

    PA-I The recreational and conservation potential of surplus federal lands near CNRAs should
           be given priority when a decision on the disposition of the land is being made.

    PA-2 Local governments are encouraged to improve public access to bay shores.

    PA-3  Safe public access for fishing in coastal waters from bridge ramps is encouraged.

    Texas Coastal Management Program Final EIS   Part II 4-110                        August 1996

    PA-4 Boaters are encouraged to avoid adversely affecting submerged aquatic vegetation and
           coastal wetlands (e.g., propwashing and scarring).

    PA-5 The use of personal motorized craft in a manner that will adversely affect critical areas is
           discouraged.

    Visual/Scenic Access

    V-1 Provisions for scenic buffer areas around active industrial sites in or near CNRAs are
           encouraged.

    V-2   Visual compatibility of new facilities/activities in or near CNRAs with surrounding
           natural resources and development is encouraged (e.g., scale, height, materials, color,
           texture, and geometry of building and site design).

    V-3   Scenic vistas of the Gulf, beaches, wetlands, and other CNRAs should be preserved.

    V-4   Structures which are visually compatible with natural surroundings should be utilized in
           recreational areas (e.g., building and grounds design, materials, and color) in or near
           CNRAs.

    V-5   Removal of abandoned structures from CNRAs is encouraged.

    Fisheries Management

    F-1 Designation of artificial reef development zones is encouraged.

    Construction/Development

    CD-1 Drainage plans and construction measures for industrial, commercial, and residential
           development in or near CNRAs should provide for the lessening or elimination of
           erosion, water quality degradation, and other negative impacts on adjacent CNRAs.

    CD-2 Design and construction options which promote dune creation, dune vegetation, or
           revegetation of coastal wetlands are encouraged.

    CD-3 The use of marsh buggies in critical areas is discouraged.

    CD4 Locating new nuclear energy facilities and nuclear fuel processing facilities outside the
           TCMP boundary is encouraged because proximity to coastal waters increases exposure to
           hurricanes, tidal surges, and other coastal hazards that could damage such facilities and
           create the risk of contamination of CNRAs.

    Texas Coastal Management Program Final EIS   Part II 4-111                          August 1996

    CD-5 In siting residential development, developers and builders are encouraged to locate
           structures away from designated coastal hazard areas and to provide a buffer between
           development and coastal shore areas.

    CD-6  Persons engaged in industrial, commercial, and residential development and associated
           activities in the coastal zone are encouraged to locate such development and activities in
           areas where adequate human resources and infrastructure already exist.

    CD-7  The provision of buffer areas around CNRAs to protect the resource and enhance the
           visual compatibility of development is encouraged.

    CD-8  Persons engaged in development and construction in the coastal zone are encouraged to
           reduce the discharge of total suspended solids (TSS) during construction by the use of
           erosion and sediment control best management practices (BMPs) which are approved
           under the EPA NPDES stormwater control program.

    CD-9 Persons engaged in development and construction in the coastal zone are encouraged to
           avoid activities that contribute to erosion and sediment loss.

    CD-lIO Persons engaged in development or construction in the coastal zone are encouraged to
           preserve areas that provide important water quality benefits or that are necessary to
           maintain riparian areas and aquatic life.

    CD-i I1 Persons, local governments, and state and federal agencies engaged in development or
           construction in the coastal zone are encouraged to protect the integrity of water bodies
           and natural drainage systems.

    CD-12 Persons, local governments, and state and federal agencies engaged in development and
           construction in the coastal zone are encouraged to reduce erosion and retain sediment on-
           site during and after construction.

    CD- 1 3 Local governments and state and federal agencies charged with regulating construction
           and other development are encouraged to conduct a cost/benefit analysis comparing the
           economic benefits of the development with its economic costs, including the
           environmental costs resulting from any adverse effects of the development on CNRAs.

    Silviculture/Agriculture

    SA- 1  Persons engaged in agriculture in the coastal zone are encouraged to implement the range
           and pasture components of a Conservation Management System as defined in the Field
           Office Technical Guide of the USDA Natural Resources Conservation Service by
           applying the progressive planning approach to reduce soil erosion.

    SA-2  Persons engaged in silviculture are encouraged to plan and operate normal ongoing
           forestry activities (including harvesting, road design and construction, site preparation
           and regeneration, and chemical management) to adequately protect aquatic functions of0
           forested coastal wetlands.

    Texas Coastal Management Program Final EIS   Part II 4-112                        August 1996

    SA-3  Persons engaged in silviculture and agriculture are encouraged to use best management
           practices developed by the Texas Agricultural Extension Service, Texas Agricultural
           Experiment Station, Texas Forest Service, State Soil and Water Conservation Board, and
           USDA Natural Resources Conservation Service to avoid and minimize adverse effects on
           CNTRAs.

    Texas Coastal Management Program Final EIS   Part 11 4-113                        August 1996

                                          CHAPTER FIVE.
                    ENSURING COMPLIANCE WITH PROGRAM POLICIES

    A. Introduction

           The TCMP is implemented through agencies' and subdivisions' existing legal authorities.
    Each agency or subdivision which exercises a networked authority is legally bound to comply
    with the goals and policies of the TCMP. This obligation is set out in �33.205(a) of the Act:

           "An agency or subdivision that takes an agency or subdivision action listed in
            �33.2051 or �33.2053 that may adversely affect a coastal natural resource area
           shall comply with the goals and policies of the coastal management program."

           The Act and Council rules identify the agencies and their authorities that are networked
    into the TCMP. This enhances enforceability of the TCMP by clearly delineating the scope of
    the TCMP. Section 33.2051 of the Act lists the permits and other individual authorizations that
    are subject to this requirement. Adoption and amendment of rules governing these
    authorizations, as well as certain other rules, are listed in �33.2053 and also constitute actions
    subject to this requirement. Chapter 501 includes citations for the statutes under which these
    authorizations are issued and these rules are adopted.

    B. Consistencv of Avencv Rules: the Council's Primary Tool

           The Council has the authority and ability to review proposed permits and other individual
    agency actions listed in �33.2051 for compliance with the TCMP. However, the Council's
    primary means of enforcing the goals and policies of the TCMP will be review and certification
    of the agency rules listed in �33.2053. The Council will certify agency rules that "incorporate or
    otherwise require compliance with" the goals and policies. Because an agency must comply with
    its own rules, incorporating the goals and policies into agency rules ensures that the agency will
    exercise its networked authorities consistent with the TCMP. Simply put, if an agency's rules are
    consistent, then its actions should be consistent.

           To encourage agencies to seek certification of rules, the Act provides incentives in the
    form of more restrictive procedural prerequisites for Council review of agency actions. If an
    agency obligates itself in its rules to comply with the TCMP, the Council can comfortably limit
    its authority to review that agency's actions. The incentives are integral to the TCMP's design
    because they allow the Council's finite time and resources to be focused on formulation of
    policy. As designed, the Council should be directly involved in implementation of policy only
    when an individual agency action involves potentially large or serious impacts or an agency
    displays a pattern of failing to comply with the TCMP.

    1. Incentives for Rule Certification: Thresholds

           Once an agency's rules are certified, the agency can adopt "consistency review
    thresholds," which are quantitative or qualitative measures of the potential impacts an action may
    have on coastal resources. Thresholds limit the council's authority to review an agency's actions.

    Texas Coastal Management Program Final EIS    Part II 5-1                            August 1996

    Thresholds must be reasonably calculated to describe actions with "unique and significant"
    effects. The Council can review an action below thresholds only if it is the subject of a formal
    adjudicative hearing under the Administrative Procedure Act (APA) (TEX. GOV. CODE ANN.
    Chapter 2001) and may directly and adversely affect a critical area, critical dune area, coastal
    preserve, or gulf beach.

    2. Rule Certification Procedures

           An agency follows the same procedures to receive Council approval of thresholds that it
    follows to obtain Council certification of rules or rule amendments under Chapter 505 of the
    Council's rules. This chapter allows for certification of existing rules, new rules, and rule
    amendments. While the procedures are somewhat different, the result of certification is the same
    for all of these.

           Whether or not an agency intends to seek certification of a proposed new rule or rule
    amendment, the Act and Council rules requires the rule or amendment to comply with the TCMP
    goals and policies. Section 505.22 also requires the agency to notify the council of the proposed
    rule or amendment. Before a rule or amendment is adopted, the public and Council members
    will submit to the agency any comments on the consistency of the rule or amendment.

           The agency may request "pre-certification review" of a proposed new rule or amendment.
    The purpose of pre-certification review is to maximize opportunities to coordinate agency rules,
    to facilitate effective and efficient implementation of the TCMP, and to identify and correct
    possible inconsistencies in the draft rule or draft rule amendment prior to its proposal and
    publication in the Texas Register.

           Upon adoption of the new rule or rule amendment, the agency may submit it to the
    Council for certification of consistency with the TCMP goals and policies. Under 31 TAC
    �505.23(c), an agency may seek expedited certification of a rule or rule amendment if the agency
    provides appropriate notice in advance that it will seek expedited review and if it has submitted
    the draft rule or rule amendment to the Council for pre-certification review.

           If the Council finds that the rule incorporates or otherwise requires the agency to comply
    with the applicable TCM1P goals and policies, the Council issues a written certification of the
    rule. If the rule is not consistent with the TCMP goals and policies, the Council issues a written
    statement denying certification of the rule with recommended changes that would result in rule
    certification.

           The Council may deny certification based only on the consistency issues raised in
    comments to the agency from: (1) the Council and the public during the pre-certification review
    period; (2) the public during the public comment period for the proposed rule; or (3) the
    Executive Committee during expedited review. Additionally, the Council may also deny
    certification if, upon adoption, substantial changes are made to the proposed rule or rule
    amendment that raise new consistency issues.

           The Council's denial must be written and must include recommendations to make the rule
    or amendment consistent, as specified under 31 TAC �505.23(b). It is anticipated that the

    Texas Coastal Management Program Final EIS    Part H1 5-2                           August 1996

    Council and the agency will work to correct any deficiency during the period after the agency has
    decided to adopt the amendment but before the amendment takes legal effect. By law, this
    period is at least 20 days after the adopted rule is published in the Texas Register.

    3. Ensuring Com~ijlance: Decertification

            The Council's main administrative compliance mechanism is issuance of a "Notice of
    Program Deficiency." The Council may issue the notice either if an agency fails to take
    corrective action after the Council has denied certification of a rule or amendment, or if the
    Council finds that an agency has implemented certified rules in a manner that is inconsistent with
    the goals and policies of the TCMP. The Council may make the latter finding either in response
    to an agency rulemaking action or on its own initiative.

           In accordance with 31 TAC �505.25, the notice must set forth the alleged deficiency, the
    basis for alleging the deficiency, and any recommended steps the agency should take to correct
    the deficiency within a specified time period. The time allowed to correct the deficiency will be
    determined on a case-by-case basis, taking into account the scope of the program or rule and the
    nature of the deficiencies. The adequacy of an agency's corrective response will be similarly
    judged. To be adequate, the response must satisfactorily explain why the alleged deficiency does
    not exist, implement the Council's recommendations, or propose other ways to correct the
    deficiency.

           If the Council finds the alleged deficiencies have not been corrected or adequately
    explained, it can then vote to revoke the agency's rule certification with respect to those parts of
    the agency's rules affected by the amendment. Once the Council revokes certification, the
    agency does not receive the benefits of thresholds specified under 31 TAC �505.21 and many of
    the procedural prerequisites for referral of actions to the Council under 31 TAC �505.32 do not
    apply.

           Decertification results in invalidation of the agency's thresholds, resulting in a greater
    likelihood that the Council may review individual agency actions. Consequently, decertification
    is a powerful administrative tool to ensure that agencies comply with the TCMP on an ongomig
    basis. It constitutes the Council's determination that closer Council scrutiny of the agency's
    future actions is needed to ensure the agency properly implements the TCMP.

           It is not the Council's sole remedy, however. Therefore, Council rules do not make
    revocation of certification mandatory. This allows the Council to pursue other remedies. For
    example, the Council may seek an attorney general's opinion on the validity of the agency rule or
    enter into alternative dispute resolution with the agency.

           The Council or an affected party may also challenge the consistency of an agency rule or
    rule amendment judicially under the APA. The Coastal Coordination Act requires certain agency
    rules to be consistent with the goals and policies of the TCMP. Section 2001.03 8 of the APA
    authorizes actions for declaratory judgments challenging the validity of agency rules. Whether
    or not it has requested certification, the agency must affirm that it has taken into account the
    goals and policies of the TCMP by issuing a reasoned determination that the rule or rule

    Texas Coastal Management Program Final ETS    Part II 5-3                          August 1996

    amendment is consistent with the TCMP goals and policies. This provides the basis for a
    challenge under the APA. I

           Agencies seeking certification of rules have entered into memoranda of agreement or
    passed resolutions committing to seek Council certification of the consistency of any future
    amendments to their rules. The agreements and resolutions are contained in Appendix E.

           While an important component of TCMP implementation, enforcement of the TCMP is
    not dependent upon certification of agency rules. An action subject to the program must be
    consistent with the goals and policies of the TCMP, regardless of whether or not the agency rules
    governing that action have been certified.

    C. Consistency of Permits and Other Individual Actions

           Section 33.205(b) of the Coastal Coordination Act requires that agencies and
    subdivisions proposing an action subject to the program affirm that the action is consistent with
    the goals and policies of the TCMP. This determination must be in writing in the order, permit,
    or other document approving or authorizing the action. Therefore, rules, orders, permits, or
    authorizations must contain the conditions, restrictions or limitations necessary to justify the
    determination of consistency.

           There is only one exception to the requirement that an action be consistent with the goals
    and policies of the TCMP. Under 31 TAC �501.30, consistency is not required if an agency
    determines that adverse effects from an action will be neither direct nor significant. A finding of
    no direct and significant adverse effect is a form of the consistency determination under
    �33.205(b) of the Act and is therefore subject to administrative and judicial challenges in the
    same manner as an agency consistency determination.

           The finding of no direct and significant adverse effect on coastal natural resource areas
    under (CNRAs) 31 TAC �505.30(c) is very specific to the facts and circumstances of each
    proposed action. By definition, the term "direct" pertains simply to causation and the term
    "significant" relates simply to whether an impact is measurable. Therefore, an action has a direct
    and significant adverse effect if detectable or observable impacts on CNRAs can be causally
    linked to the activity authorized by the action.

           There will be few circumstances in which actions above thresholds will qualify for the 31
    TAC �505.30(c) exception. By definition, these actions are anticipated to have appreciable
    impacts. Under 31 TAC �501.13(b), actions above thresholds are those that "may have
    significant impacts." The only situation in which findings of no significant adverse effects
    should be made for actions above thresholds are those cases in which an agency adopts a zero
    threshold. Overall, large numbers of findings under 31 TAC �505.30(c) are not anticipated.

    1. Means of Ensurina Consistencv of Individual Actions

           There are three independent and effective means of enforcing the goals and policies of the
    TCMP, each based on the consistency determination required by �33.205(1) of the Act.

    Texas Coastal Management Program Final EIS    Part II 5-4                           August 1996

      1.   The networked agencies and subdivisions can take administrative action against private
           parties to enforce the existing authorities that are linked together into the TCMP. For
           example, permit conditions necessary to achieve TCMP consistency can be enforced
           through all means available to networked agencies. These existing enforcement powers
           typically include assessment of administrative penalties and fines or revocation of the
           agency authorization or approval. If administrative action does not achieve compliance,
           the agency or subdivision can pursue civil or criminal litigation through referral of the
           matter to the attorney general.

      2.   The Council can administratively review agency and subdivision consistency
           determinations. If the Council disagrees with an agency's or subdivision's determination
           and the agency or subdivision does not correct the problem, the Council can pursue
           litigation through referral of the matter to the attorney general.

      3.   Third parties (citizens, agencies, or local governments) who would be affected by an
           agency consistency determination can administratively challenge it. For example, an
           affected party can challenge agency consistency determinations in a formal adjudicative
           hearing or contested case hearing before an agency. Affected parties can also pursue
           litigation to challenge the result of the hearing.

    These three enforcement techniques are described in more detail below.

    2. Action by a Networked Agencv or Subdivision

           Networked agencies and subdivisions bear primary responsibility for implementing the
    TCMP. They ensure that land and water uses affecting the coastal zone comply with the TCMP
    goals and policies. The duty of each line agency to enforce the TCMP is clear in the Act.
    Section 33.208(a) of the Act mandates that the agency or subdivision with jurisdiction over a
    proposed action "shall enforce" the provisions of the TCMP applicable to that action.

           Existing law authorizes each networked agency to undertake administrative enforcement
    actions for violation of the terms or conditions of a permit issued under authorities networked in
    the TCMP. (See, for example, Chapter 361, Texas Health and Safety Code (Texas Solid Waste
    Disposal Act); Chapter 382, Texas Health and Safety Code (Texas Clean Air Act); and Chapter
    26, Texas Water Code (Texas Water Quality Act).) In 1991, the Texas Legislature adopted far-
    reaching amendments to the statutes cited above providing for strong criminal sanctions for
    violations of these statutes.

           Each agency exercising a networked authority is bound by the Act and Chapter 505 to
    conformance with the relevant enforceable policies in the TCMP. Listed permits or
    authorizations must contain the conditions, restrictions or limitations necessary to ensure they are
    consistent with the TCMP goals and policies, as affirmed by the consistency determination the
    Act requires to be included in the permit or authorization. These conditions, restrictions, or
    limitations can serve as the basis for administrative enforcement actions by networked agencies
    as required by �33.208(a) of the Act.

    Texas Coastal Management Program Final EIS    Part II 5-5                         August 1996

           If administrative remedies are not successful, the agency can refer the matter to the
    attorney general to seek judicial sanctions under these statutes. While the Council has no direct
    authority to review enforcement decisions by agencies and subdivisions, a pattern of failure to
    enforce can constitute inconsistent implementation of the TCMP goals and policies and result in
    issuance of a Notice of Program Deficiency by the Council.

    3. Action by a Non-Networked Aaencv or Subdivision

           The TCMP is designed to ensure that all state agencies and subdivisions will adhere to
    the TCMP goals and policies, even those that are not directly networked into the program. Any
    action or authorization which may adversely affect a CNRA--whether undertaken by a networked
    or non-networked agency or subdivision--must be consistent with the TCMP. All actions which
    may adversely affect a CNRA are specifically listed in the enabling legislation and the TCMP
    rules. These actions must be consistent with the TCMP, regardless of whether the entity seeking
    approval for the action is a person, corporation, or a networked or non-networked agency or
    subdivision.

           The list of state and subdivision actions subject to the TCMP is comprehensive. For
    example, TxDOT transportation projects may adversely affect CNRAs and are thus specifically
    listed in the statute and TCMP rules. In addition, the Chairman of the Texas Transportation
    Commission sits on the Council, ensuring effective coordination of transportation projects.
    Construction of wastewater treatment projects is also subject to the TCMP, even though the
    allocation of State Revolving Fund monies by the Texas Water Development Board is not an
    action subject to the TCMP. Operation of a wastewater treatment plant requires at least one
    permit subject to the TCMP-a wastewater discharge permit. As in this example, actions by non-
    networked agencies which affect CNRAs are thus effectively managed through the TCMP.

    4. Council Review of Individual Actions

           The Act grants the Council authority to review agency and subdivision consistency
    determinations regarding proposed permits and other individual actions. The Council reviews
    ensure that these authorizations contain the conditions and restrictions necessary for consistency
    with the TCMP goals and policies. Pursuant to the Coastal Coordination Act Section 33.205(3),
    agency denial of an action is not subject to review by the Council. However, applicants whose
    permit is denied may still appeal the agency decision under existing state procedures inlcuding
    the Texas Administrative Procedures Act.

           The function of the Council, however, is not simply to second-guess agencies and
    subdivisions. Rather, it is to resolve potentially time-consuming, costly conflicts among
    agencies, subdivisions, affected parties, permit applicants, and others. Consequently, the
    existence of a significant unresolved dispute over a proposed action's consistency with the goals
    and policies of the TCMP is a substantive prerequisite for Council review. If all parties agree
    that an action complies with the goals and policies, there is no need for the Council to take
    action.

           The consistency determination required by �33.205(b) serves as the basis for Council
    review. The agency's determination and the conditions, restrictions, or limitations necessary to

    Texas Coastal Management Program Final EIS    Part II 5-6                         August 1996

               support it, must be developed and integrated into the agency's process for evaluating and
               informing the public of the proposed action. This ensures that consistency issues are not set
    0       ~     ~~aside until the last moment or only raised on Council review. It also creates an avenue for
               affected parties, including the public, to comment on an agency's implementation of the state's
               uniform coastal policies. It is the means of calling to the Council's attention any unresolved
               conflicts over the proposed action.

                       The Act and Council rules include a "preliminary review" process which gives agencies,
               subdivisions, and applicants the opportunity to request recommendations with respect to the
               consistency of a proposed action. The preliminary review process is expected to resolve disputes
               over the consistency of proposed actions and therefore reduce the number of proposed actions
               referred to the Council for resolution. Either an agency proposing a permit or other individual
               action or the permit applicant may request a preliminary finding that the permit or action "is
               likely to be found consistent" with the goals and policies of the TCMP.

                       The Act also provides for the Council to establish a process by which an "individual or
               small business" may request and receive assistance in filing applications for permits or other
               proposed actions. An individual or small business can also obtain a preliminary finding of
               consistency. The preliminary review and permitting assistance processes allow the Council
               members to interact with and obtain information from the agency or subdivision with jurisdiction
               over the proposed action regarding the approvability of the proposed action.

                      The EC can issue a preliminary consistency finding only after accepting and considering
                public comment, and if sufficient information is available to evaluate the consistency of the
               action. For the EC to issue an unqualified finding, an administratively complete application must
               be filed and the permitting agency must have had the opportunity to fully and accurately describe
               both the proposed activity and its impacts on CNRAs, consider the public comments, and
               produce a draft permit or provide some other document containing all applicable conditions or
               limitations to be placed on the activity. To the extent this information is not available to the EC,
               the EC must place the appropriate qualifications on any findings it issues.

                      The term "likely to be found consistent" means that the proposed permit or action would
               be found consistent if reviewed by the Council. If the EC issues a preliminary finding of
               consistency, the Council may review the proposed action only if the agency or subdivision has
               substantially changed the permit or action subsequent to the issuance of the preliminary finding.

                      The Act and Council rules also establish the procedures by which a proposed action may
               come before the Council for formal review. These procedural requirements, ensure that
               consistency issues are raised early and are clearly and unambiguously articulated so that the
               networked agency or subdivision can resolve them. They also ensure that disputes elevated to
               the Council are significant. The agency or subdivision, not the Council, has the first obligation
               to resolve the consistency dispute in this networked program. Unless there are clear and
               substantial questions about that determination, the Council will defer to the agency or
               subdivision.

               Texas Coastal Management Program Final EIS    Part II 5-7                          August 1996

           The Council may review proposed actions if the following three conditions are met:

      *    The consistency determination for the proposed action is contested by: (1) a Council
           member or an agency that was a party in a formal hearing under the APA, or in an
           alternative dispute resolution process; or (2) a Council member or other person by the

           filing of written comments with the agency before the action was proposed, if the
           proposed action is one for which a formal hearing under the APA is not available.

        * A person described in the paragraph above files a request for referral within ten days after
           the agency has proposed the action for which consistency review is sought alleging a
           significant unresolved dispute regarding the proposed action's consistency with the goals
           and policies of the TCMP.

        * Any three regular members of the Council agree, within 13 days after the agency has
           proposed the action for which referral has been requested, that there is a significant
           unresolved dispute regarding the consistency of the proposed action with the goals and
           policies of the TCMP and the matter is placed on the agenda for a Council meeting.

           The decision of the Council to review a proposed action is purely discretionary; therefore,
    no one has a right to have the Council review a proposed action except the Council members
    themselves.

           Once an agency's rules have been certified and consistency review thresholds are in
    effect, additional conditions must be met before the Council may review a proposed action below
    the threshold:

        * The action must directly and adversely affect a critical area, critical dune area, coastal
           preserve, or gulf beach and if a state agency has contested the consistency determination
           under the APA. The Council may not review an action below a threshold if it is the type
           of action to which the remedies under the APA do not apply.

           The Council must consider and act on a matter referred as described above before the
    26th day after the date the agency or subdivision proposed the action. An action subject to the
    contested case provisions of the APA is proposed when notice of a decision or order is issued.
    The proposed action is deemed consistent and approved by the Council unless the Council
    determines the action to be inconsistent with the TCMP by an affirmative vote of at least two-
    thirds of the members of the Council (eight votes).

           If, after review, the Council finds that an action is inconsistent with TCMP goals and
    policies, the Council reports its findings to the agency or subdivision. The findings must specify
    how the action is inconsistent and recommend how it can be modified to comply. Section
    33.206(b) requires the agency or subdivision to review and act on the findings, which carry great
    legal weight. An agency or subdivision may elect to cure the inconsistency in a manner other
    than that specifically recommended by the Council. However, the agency or subdivision must
    notify the Council of its decision within 20 days of the date the agency or subdivision received
    the Council's findings.

    Texas Coastal Management Program Final EIS    part 11 5-8                         August 1996

            The Council retains the authority to review an action again following the agency's or
    subdivision's consideration of its findings. If the Council again finds the action inconsistent, the
    Council is authorized to pursue remedies through the attorney general. Section 33.206(c) directs
    the Council to refer the matter to the attorney general. As is the attorney general's prerogative as
    the state's chief legal officer, the attorney general then determines whether to file suit. The Act
    requires the decision to be publicly justified. Section 33.206(c) requires this decision to be made
    in the form of an official opinion. The attorney general must issue an opinion before the 26th
    day after the date the Council requested the opinion. If the attorney general finds the action
    inconsistent, under �33.208(b) the agency or subdivision must then implement the Council's
    recommendations or the matter is litigated. The attorney general can sue only agencies and
    subdivisions on the Council's behalf, not private parties.

           At any time, the Council and, if a suit is filed, the attorney general, may enter into a
    settlement agreement with the agency or subdivision. If such an agreement is reached, the
    Council may rescind its request for an opinion from the attorney general or, if a suit has been
    filed, the attorney general may drop the suit.

           The Act contemplates that the process for Council review is complete before the permit
    or other agency or subdivision action in question is final and vests the applicant with the legal
    right to conduct activities. Additionally, �33.206(c) states that the agency or subdivision is
    stayed from taking the proposed until the attorney general issues the opinion. Accordingly, 31
    TAC �505.37 provides that pending Council review of an action, no person may conduct
    activities authorized by the agency action that would irreparably alter or damage a coastal natural
    resource area identified in the applicable policy.

    5. Third Party Action

           The APA and other state authorities provide another basis for enforcement of the TCMP
    goals and policies. They provide the basis for aggrieved parties to challenge an agency
    consistency determination in both administrative and judicial forums. The APA provides that:

           "A decision that may become final under �2001.144 must include findings of fact
           and conclusions of law, separately stated. Findings of fact may be based only on
           the evidence and on matters that are officially noticed. Findings of fact, if set
           forth in statutory language, must be accompanied by a concise and explicit
           statement of the underlying facts supporting the findings. If a party submits under
           a state agency rule proposed findings of fact, the decision shall include a ruling on
           each proposed finding" (�2001.141).

           The determination that an action or authorization is consistent with the TCMP under 31
    TAC �505.30 is a conclusion of law that must be supported by the facts and law in the agency
    record. Therefore, it can be challenged by an affected party in a contested case before either the
    agency or the State Office of Administrative Hearings, and ultimately in state court. The APA
    specifically grants affected parties the right to judicially challenge an agency's final decision as
    follows:

           "A person who has exhausted all administrative remedies available within the

    Texas Coastal Management Program Final EIS    Part II 5-9                            August 1996

            agency and who is aggrieved by a final decision in a contested case is entitled to
           judicial review under this chapter" (�2001.171).                                                    0

            To meet the requirements of the APA and other laws enacted to guarantee the citizens of
    Texas input into government decision making, agencies have adopted rules giving potentially
    aggrieved third parties various procedural rights with respect to proposed permits and other
    actions. The particular requirements of these rules vary between agencies and permits.
    Generally, they require various forms of public notice of proposed actions, require agencies to
    provide opportunities for public comment, and specify how a contested case hearing is triggered.

           The public has notice, comment, and hearing opportunities and the right to a contested
    case hearing under the APA with regard to the following actions that are subject to the TCMP:
    PUC certificate of convenience and necessity; THC permit for alteration of state archaeological
    landmark; TNRCC wastewater discharge permits, water rights permits, solid/hazardous waste
    disposal permits, creation of special districts, and approval of levee and flood control projects;
    RRC wastewater discharge permits and waste disposal permits; and TPWD oyster leases and
    marl/sand/shell/gravel permits. The APA allows an affected party to appeal an agency decision
    based on a contested case hearing to district court.

           Under common law, all agencies and subdivisions are subject to an action for injunctive
    relief based on the allegation that they are not complying with applicable rules or statutes, such
    as the Act or the goals and policies of the TCMP. Moreover, certain agencies' authorizing
    statutes go farther and specifically authorize a person or entity aggrieved by an act of the agency
    to seek judicial relief. The School Land Board is subject to suit under �33.173, Texas Natural
    Resources Code, and the TNRCC is subject to suit under �5.531, Texas Water Code. In addition,
    �26.124, Texas Water Code, grants local governments and TPWD the broad authority to sue to
    seek injunctive relief or civil penalties in cases where there is a violation or a threat of a violation
    of either a rule, permit, or order of the TNRCC or the general statutory prohibition against
    impairing water quality. This provision provides the legal basis for TNRCC's issuance of
    certifications for federal dredge or fill permits. A local government may sue when the violation
    occurs or would occur within its geographic jurisdiction. TPWD may sue when the violation
    would affect aquatic life or wildlife.

           Agency rules and statutes provide the public with other public notice and comment
    opportunities. With regard to TNRCC and RRC certification of federal permits for the discharge
    of dredged or fill material, both agencies' rules require public notice of proposed certifications to
    be issued and afford the public the right to comment to the agency. Both agencies' rules also
    include the opportunity for a nonadjudicative public hearing on proposed certifications.
    Similarly, TxDOT rules require it to pursue a public scoping and planning process for its
    highway projects that is very similar to the process required under the National Environmental
    Policy Act.

           Council rules also contain provisions specifically designed to facilitate public review and
    comment on agency consistency determinations. For actions above thresholds for referral, 31
    TAC �505.30(c) requires agencies to provide comprehensive information justifying their
    consistency determinations. Section 505.30(d) requires public notices to contain a specific
    statement that the proposed action is subject to the TCMP.

    Texas Coastal Management Program Final EIS    Part I 5-10                           August 1996

           All governing boards and commissions of state agencies and subdivisions are subject to
    the Open Meetings Act (Chapter 551, TEX. GOV. CODE ANN.). Under this Act, the board or
    commission can take an action subject to the TCMP only in a public meeting. The board or
    commission must give at least seven days advanced notice of the meeting. Generally, agencies
    include in the notice the location and type of activity to be authorized to apprise those potentially
    affected by the decision of its impacts. Actions of the SLB and TTC that are subject to the
    TCMP must be authorized in public meetings that are subject to the Act. In addition, the actions
    of the Council must be taken in a public meeting that is subject to the Act.

           GLO issuance of miscellaneous easements, surface leases, and geophysical and
    geochemical permits, and approval of mitigation banks are not subject to any public notice and
    comment requirements. However, it is the practice of the GLO to solicit public input into these
    actions, as well as to coordinate these actions with other resource agencies. Because the activity
    to be authorized frequently requires approval by an agency that issues some form of public notice
    (for example, the Corps), the GLO typically receives public comment through the other agency's
    process. Under the Open Beaches Act, the GLO certifies local government dune protection and
    beach access plans by amendment to the GLO beach/dune rules. Therefore, the public is
    afforded the notice and comment opportunities provided by the APA for agency rulemaking
    actions.

    D. Citv and County Management of the Beach/Dune Svstem

           The rules governing the Council's review of local government actions basically follow the
    structure of the rules governing the Council's review of agency actions described above. Several
    differences are noteworthy. First, the exclusive list of actions in �33.2053 includes only two
    local government actions, the issuance of dune protection permits and the issuance of beaclfront
    construction certificates for large projects in the beach and dune area. Second, because the goals
    and policies of the TCMP reflect the GLO's rules governing the management of the beach/dune
    system (31 TEX. ADMIN. CODE Chapter 15), the consistency determination required of local
    governments by �33.204(b) is the same as the findings required by the GLO's beach/dune system
    rules.

           Under 31 TAC �505.68, once the GLO has certified a local government's dune protection
    and beach access plan, the Council rules presume that the local government's consistency
    determination is valid. This presumption places the burden on the person challenging the
    consistency determination to show an inconsistency. Under both the Open Beaches Act and the
    Dune Protection Act, the attorney general, the GLO, or the county or district attorney are
    authorized to sue to enforce either act and can therefore ensure compliance with the goals and
    policies, whether a local government plan has been certified.

    E.     Federal Consistenev Review

    1. Introduction

           The Coastal Zone Management Act requires federal agencies to act consistently with
    federally approved state coastal management programs. Federal consistency review is the

    Texas Coastal Management Program Final EIS   Part II 5-11                         August 1996

    process by which the state can review an action undertaken, licensed, permitted, or funded by a
    federal agency to ensure the consistency of the action with the enforceable policies of its i

    program. If the state finds a given action to be inconsistent with the enforceable policies, with
    few exceptions, the action cannot be undertaken.

           The federal regulations in 15 CFR Part 930, based on �307 of the Coastal Zone
    Management Act, set specific procedures states must follow when conducting federal
    consistency reviews. The federal regulations include procedures for consistency reviews of: (1)
    activities undertaken by the federal government, including development projects; (2) federally
    licensed or permitted activities; (3) Outer Continental Shelf (OCS) exploration, development,
    and production activities; and (4) federal assistance to state and local governments (fig. 2).

           In addition, the federal regulations delineate a process for mediation of disputes between
    the state and federal agencies or applicants to federal agencies. These regulations also establish
    procedures for review of the state's consistency determinations by the U.S. Department of
    Commerce.

           To promote efficiency and to streamline the process, the Texas federal consistency review
    process will be tailored to the state's through the use of memoranda of agreement, general
    consistency agreements, interagency coordination groups (ICGs), and general concurrences.

    2. Federal Decisions Covered bv the TCMP (15 CFR ��930.33.930.34, 930.53, 930.74, and

       930.95)

           The Coastal Coordination Act requires the Council to adopt procedural rules for the
    review of federal actions, activities, and OCS plans that incorporate the federal requirements for
    consistency review. State law defines the federal decisions subject to Council review as: (1)
    "federal agency activities;" (2) "federal agency actions" and (3) "Outer Continental Shelf (OCS)
    plans." By definition, these terms cover the four types of federal activities listed under the
    federal regulations.

    I State Term                                    I Federal Term
     Federal agency activity                         Federal activity, including development
                                                     projects

                                                     Federal assistance
     Federal agency action                           Federal license or permit
      Outer Continental Shelf Plan                    Outer Continental Shelf Plan

           The Act defines "federal agency action" to mean a license or permit that a federal agency
    may issue that represents the proposed federal authorization, approval, or certification needed by
    an applicant to begin an activity.

    Texas Coastal Management Program Final EIS   Part II 5-12                            August 1996

                       The Act defines "federal agency activity" to mean a function performed by or for a
               federal agency in the exercise of its statutory responsibility, including financial assistance, the
    Is ~~planning, construction, modification, or removal of a public work, facility, or any other structure;
               and the acquisition, use, or disposal of land or water resources, but not the issuance of a federal
               license or permit. Federal financial assistance is further defined in the consistency review rule to
               be "limited to federal programmatic requirements for project level funding. "

                       The Act defines "outer continental shelf plan" as a plan for the exploration or
               development of, or production from, an area leased under the Outer Continental Shelf Lands Act
               and the rules adopted under that Act that is submitted to the Secretary of the Interior after federal
               approval of the coastal management program.

                       Federal regulations (I15 CFR �93 0.34(a)) require federal agencies to provide the state
               with a consistency determination for all federal activities that may affect coastal natural resource
               areas, even if the Council does not review the activity. The state has listed federal actions and
               activities subject to review by the Council. This list is intended to provide notice to federal
               agencies and applicants for federal permits and licenses and federal financial assistance. The list
               may be amended through rulemnaking after the Council consults with the affected federal agency
               and receives approval from the Assistant Administrator of the National Oceanic and Atmospheric
               Administration. In addition to publishing the list as part of its regulations, the Council will
               provide copies of the list, and any amendments, to federal agencies and units of state or local
               government affected by the list.

                       Unlike the list of state agency and subdivision actions subject to Council review, the
               federal list is not exclusive. The federal regulations encourage the state to monitor unlisted
               federal actions and activities affecting the coastal zone. The Council may choose to review an
               unlisted federal agency action or federal assistance. If the Council so chooses, it must determine
               whether it wishes to review that type of action or assistance in the future. To preserve its ability
               to review, the Council must amend its rules to list the action or assistance. If the action or
               assistance is not added to the rule, the Council may not review that type of action or assistance
               again (31 TAC �506.12(f)).

                       The list includes actions, activities, and OCS plans both inside and outside the coastal
               zone. The geographic scope of review of federal actions outside the boundaries is limited to
               Outer Continental Shelf waters for actions seaward of the coastal boundary. The list of federal
               actions, activities, and OCS plans subject to federal consistency review is in 31 TAC �506.12
               (p~art of Appendix C, Rules for State, Local, and Federal Consistency Review) (fig. 2).

                      The Council rules include a provision for a one-time determination of consistency for a
               federal agency action or federal assistance. Under this provision, an action taken by a state
               agency or subdivision or federal agency to implement an activity described in an application for
               federal assistance or for a federal license or permit that the Council has determined to be
               consistent will not be subject to review by the Council if the action is described in sufficient
               detail in the application.

               Texas Coastal Management Program Final EIS   Part 1I 5-13                          August 1996

                                                                                        FIGURE 2

                                                                  PROPOSED FEDERAL CONSISTENCY TIME LINES

    Federal Activities (except federal assistance)

    DAY                        1                                                               45                               60

                              I I I
                       Federal agency                  {30-day public                      Council                      Council agrees
                           submits                        notice and                       decision,                     or disagrees
                         consistency                   comment period                    extension, or
                        determination                    included in                     consistency
                                                      first 45 days}                    presumed

    Federal Actions

    DAY                        1                                                               45                                                               90

                          Applicant                    (30-day public                       Council                                                         Council
                           submits                        notice and                         refers                                                         concurs
                         consistency                   comment period                     {extension)                                                          or
                         certification                   included in                       or action                                                        objects
                                                      first 45 days}                    presumed
                                                                                       consistent

    Outer Continental Shelf Plane

    DAY                        1                                                               45                                                               90

                          Secretary                    (30-day public                       Council                                                         Council
                            of the                        notice and                         refers                                                         concurs
                           Interior                   comment period                     (extension)                                                           or
                       forwards copy                     included in                       or plan                                                          objects
                           of plan                     first 45 days}                     presumed
                      and consistency                                                     consistent
                         certification

    Federal Assistance

    DAY                        1                               30                              46                               60

                           SSPOC                       Chairman must                        Council                         Council
                          forwards                         refer or                        concurs                         concurs
                            copy                         application                          or                              or
                        of application                    presumed                          objects                         objects
                                                        consistent                         (NOI                          (NOI not
                                                   (certain applications                submitted)                      submitted)
                                                     require a decision
                                                       at this point)

               3. General Process for Federal Consistency Review

     0              ~~~~~Federal agencies and applicants for federal permits must provide to the Council a
               consistency determination or consistency certification for all actions inside or outside the coastal
               zone that will affect any land or water use or natural resource of the coastal zone. The Coastal
               Coordination Act requires the Council to issue the final decision on whether the state concurs
               with the applicant's consistency certification or the federal agency's consistency determination.
               The Act directs the GLO to assist the Council in carrying out its duties. For federal consistency
               review matters, the GLO will provide administrative support to the Council.

                      The Council's public notice and comment procedures are essentially the same for federal
               agency activities, federal agency actions, and Outer Continental Shelf plans. All consistency
               certifications and determinations will be received by the Council secretary. Immediately upon
               receipt, the secretary will publish public notice in the Texas Register. The notice will request
               public comments on consistency within 30 days of the notice. The chairman or three members of
               the Council may extend the public comment period and schedule a public hearing on a
               consistency matter. In certain instances, the Council may issue public notice jointly with the
               federal agency having the authority to permit or license the activity.

                      Concurrently with publication of the notice, the Council secretary will route the
               certification or determination to the Council members and their staff. The GLO staff will begin
              reviewing the certification or determination for consistency with all the TCMIP goals and
              policies. The GLO staff will also review all public comments as they are received. If it appears
              that a proposed federal action or activity could present new, unique, or significant problems with
              regard to consistency with the TCMP or could otherwise be controversial, the GLO will begin to
               coordinate with other Council members or their staffs at the earliest opportunity. This
              coordination could involve meetings of the EC, PAG, or other interagency meetings.

                      After evaluating the consistency determination or certification, reviewing public
              comment, and coordinating with other Council members or their staffs, the GLO staff will
              develop a summary of public comments and a recommendation for approval by the Council
              chairman. The chairman will recommend that the Council concur with the certification or agree
              with the determination, unless a significant unresolved consistency dispute has been found. In
              that case, the chairman will recommend that the Council object to the certification or
              determination and place the matter on the Council agenda for formal review.

                      The Council secretary will send the chairman's recommendation and the public comment
              summary to all Council members. The Council members will then decide whether to formally
              review the matter. At least three Council members must agree to place the matter on the agenda,
              otherwise the action is deemed consistent. For example, the Council would formally review the
              matter if the chairman recommended agreeing with a federal agency consistency determination,
              but three members disagreed and requested that the secretary place the matter on the agenda of a
              Council meeting.

                      If the Council does not refer the matter for review, consistency is conclusively presumed
    *        ~~~after the deadline has lapsed (see fig. 2 for deadlines). If the matter is referred, the secretary will
              place it on the agenda of the next regular meeting of the Council. If the next regular meeting is

              Texas Coastal Management Program Final EIS   part 11 5-15                          August 1996

    scheduled after the time period for the Council decision ends, the chairman or any three regular
    members will call a special meeting of the Council, to be held before the end of the time period.
    The secretary will notify the Council members, applicant, federal agency, and other affected is
    parties of the Council's decision concerning referral immediately upon issuance of the decision.

           The Council's public meetings will serve as the public hearings for those actions which
    the Council chooses to review. Council meetings are held quarterly on the first Thursday of
    February, May, August, and November. In addition, the chairman or any three members may
    convene special meetings. Public notice of the Council meeting must be posted at the office of
    the Secretary of State no later than eight days before the meeting. The public notice will include
    the meeting agenda.

           At the Council meeting, the Council will review the consistency certification or
    determination, the public comment, the chairman's recommendation, and the responses or
    recommiendations of other Council members. The Council will also solicit fur-ther public
    commient at the meeting. The Council will then make its finding regarding consistency. A two-
    thirds vote of the Council is required to object to or disagree with a consistency certification or
    determination. The governor, with the assistance of the chair of the Council, may seek mediation
    of disagreements between the state and the' applicant or federal agency over the consistency of a
    federal agency action, activity, or OCS plan.

           GLO staff will provide technical assistance to applicants for federal actions and any
    person submitting an OCS plan to ensure that the proposed activities will be conducted in -a
    manner consistent with the TCMP. This assistance will be available both before and during
    TCMP consistency review. The assistance includes making the TCMP document available to the
    public.

    4. Federal Activities and Development Proiects (15 CFR ��930.35(c) and �930.40)

           Federal agencies considering the approval of a federal agency activity or development
    project listed in 31 TAC �506.12 must provide to the Council secretary a consistency
    determination at least 90 days before final approval.

           Federal activities are required to be "consistent to the maximum extent practicable" with
    the goals and policies of the TCM.P. For purposes of federal consistency review, "consistent to
    the maximum extent practicable" means that federal activities and development projects must be
    fuly consistent with the federally approved TCMP unless compliance is prohibited by
    requirements of existing law applicable to the federal agency's operations. If a federal agency
    asserts that compliance with the TCMIP is prohibited by law, it must clearly describe in its
    negative determination the statutory provisions, legislative history, or other legal authority which
    limits the federal agency's discretion to comply with the provisions of the TCMP.

           When more than one federal agency is involved in conducting or supporting a federal
    activity or its associated facilities or is involved in a group of federal activities related to each
    other because of their geographic proximity, the agencies are encouraged to prepare the
    consistency determination jointly. In such situations, the consistency determination must be
    transmitted to the Council secretary at least 90 days before final decisions are taken by any of the

    Texas Coastal Management Program Final EIS   Part 11 5-16                          August 1996

                   participating agencies.

    is The federal agency's consistency determination must include: (1) a brief statement
                   indicating whether the proposed activity or development project will be undertaken in a manner
                   consistent to the maximum extent practicable with the TCMP; (2) a detailed description of the
                   activity or development project, its associated facilities, and their effects on coastal natural
                   resource areas; and (3) comprehensive data and information sufficient to support the federal
                   agency's consistency determination. The statement must be based upon an evaluation of the
                   relevant provisions of the TCMP. The amount of detail in the evaluation statement, activity
                   description, and supporting information must be commensurate with the expected effects of the
                   activity CNRAs.

                          Where a joint consistency determination is prepared, the determination must indicate
                   whether each of the proposed activities is consistent to the maximum extent practicable with the
                   TCMP and must include information on each proposed activity sufficient to support the
                   consistency determination.

                          The consistency determination must be based on the following: (1) the activity (e.g.,
                   project siting and construction); (2) its direct effects (e.g., air, water, waste discharges); (3)
                   associated facilities (e.g., proposed siting and construction of access roads, connecting pipelines,
                   support buildings); and (4) the direct effects of the associated facilities (e.g., erosion, wetlands,
                   and beach access impacts). While nonassociated facilities (e.g., recreational housing which is
                   induced by, but not necessarily related to, a federal harbor dredging project) must be included
                   within the consistency determination's description of the direct effects of the activity, federal
                   agencies are not responsible for evaluating the consistency of such facilities.

                          Under federal law, federal agencies should adequately consider advisory policies;
                   however, the Council cannot base its finding of consistency on these policies. If federal
                   standards for an activity are stricter than the standards set in the TCMP, the federal agency will
                   apply its stricter standards.

                    a. Federal Activities: Negative Determinations (15 CFR �930.35(d))

                          A federal agency must notify the Council secretary if it intends to file a negative
                   determination, at least 90 days before final approval of the activity. A negative determination is
                   required if a federal agency finds that a consistency determination is not required for a federal
                   activity that is the same as or similar to activities for which consistency determinations have been
                   prepared in the past or for which the federal agency undertook a thorough consistency
                   assessment and developed initial findings on the effects of the activity.

                    b. Federal Activities: General Consistencv Determinations (15 CFR �930.37(b))

                          Federal agencies are allowed to develop a general consistency determination for repeated
                   activities other than development projects (e.g., ongoing maintenance or waste disposal) that
                   cumulatively may have a direct effect on coastal natural resource areas. This allows federal
                   agencies to avoid issuing separate consistency determinations for each incremental action. The
                   incremental actions must be repetitive or periodic, must be substantially similar in nature, and

                   Texas Coastal Management Program Final EIS    Part 1I 5-17                           August 1996

    must not directly affect CNRAs when performed separately. If a general consistency

    determination is issued, then the federal agency must periodically consult with the Council to          0
    discuss the manner in which the incremental actions are being undertaken.

           Under section 506.28, the Council may issue a general consistency agreement in response
    to a general consistency determination. These agreements may be issued only for a repeated
    activity other than a development project that cumulatively has a direct effect upon the coastal
    zone.

     c. Consistencv Determinations for Pronosed Development Projects (15 CFR �930.37(c))

           A federal agency may provide one consistency determination when it has sufficient
    information to determine the consistency of a proposed development project from planning to
    completion. If the decisions for a proposed project are to be made in phases based on developing
    information, with each subsequent phase subject to federal agency discretion to implement
    alternative decisions based on the information, a consistency determination will be required for
    each major decision. It is the responsibility of the federal agency to ensure that the development
    project continues to be consistent with the TCMP to the maximum extent practicable throughout
    the project's various phases.

     d. Federal Activities: Determinations for Activities Initiated Prior to Federal Anrmroval of the
         TCMP (15 CFR �930.38)

           A consistency determination is required for ongoing federal activities (other than
    development projects initiated prior to federal approval of the TCMP) that can be reassessed and
    modified by the federal agency. In such cases, the federal agency must provide the secretary of
    the Council with a consistency determination no later than 120 days after TCMP approval.

           Additionally, federal agencies must provide a consistency determination to the secretary
    of the Council for major, phased federal development project decisions which are made
    following TCMP approval that are related to development projects initiated prior to approval.
    Federal agencies are required to consider the effects on CNRAs not fully evaluated at the outset
    of the project. This provision does not apply to phased federal decisions which were specifically
    described, considered, and approved prior to TCMP approval (e.g., in a final environmental
    impact statement issued pursuant to NEPA).

     e. Federal Activities: Council Referral and Review Procedures (15 CFR ��930.41 and 930.42)

           Upon receipt of a consistency determination, the Council has 45 days within which to
    notify the federal agency of its agreement or disagreement with the determination (see fig. 2).
    The Council will review a consistency determination if any three members of the Council agree
    the determination presents a significant unresolved issue regarding consistency with the goals
    and policies of the TCMP and place the matter on the agenda of a meeting of the Council for
    review. If the Council does not place the federal agency activity on the agenda of a Council
    meeting for review within the 45-day period, the Council chair must inform the federal agency of
    the status of the matter and the basis for further delay and request an extension of time to review

    Texas Coastal Management Program Final EIS   Part II 5-18                         August 1996

    the matter.

           The federal agency is required to approve the first 15-day extension. However, the
    federal agency may agree to an extension exceeding 15 days or to an additional extension period
    based on the complexity and magnitude of the information contained in the consistency
    determination (see "General Consistency Determinations"). The federal agency cannot take final
    action sooner than 90 days from the issuance of the consistency determination to the Council
    unless both the federal agency and the state agency agree to an alternative period.

           If the Council votes to disagree with the consistency determination, it must include in its
    response to the federal agency its reasons for the disagreement and supporting information. The
    Council response must explain how the proposed activity will be inconsistent with the specific
    elements of the TCMIP and describe alternative measures (if they exist) which, if adopted by the
    federal agency, would allow the activity to proceed in a manner consistent to the maximum
    extent practicable with the TCMP.

           If the Council's disagreement is based on the federal agency's failure to supply sufficient
    information, the Council's response must describe the nature of the information requested and the
    necessity of having such information to determine the consistency of the federal activity with the
    TCMP. The Council is required to send the Assistant Administrator a copy of the responses
    which describe disagreements with the federal agency consistency determination.

     f. Srnecial Consistency Review Process for Develourment Projects for which an Interaeencv
        Coordination Grout is Formed

           The Council's consistency review rules establish a special consistency review procedure
    for federal development projects. It is modelled after the successful interagency coordination
    process employed by the Port of Houston Authority and the Galveston District of the U.S. Army
    Corps of Engineers in planning the deepening and widening of the Houston-Galveston
    Navigation Channels in Galveston Bay. This project is one of the most significant federal
    agency undertakings ever planned for Texas' coastal zone.

           After years of sometimes contentious planning, in 1990 the Galveston District created the
    Interagency Coordination Team (ICT) in conjunction with the nonfederal sponsor of the
    Houston-Galveston Navigation Channels. Made up of state and federal resource agencies, the
    ICT was formed to assist the Port and the Corps in project design, and drafting environmental
    documentation to fully address all environmental concerns. The ICT was integrally involved in
    assessing the project's impacts and developing plans to protect and restore Galveston Bay.
    Because it was based on consensus decision-making, the ICT process resulted in a proposed
    project that enjoys broad support among the public and state and federal resource agencies.

           To encourage other federal agencies to pursue this type of consensus-based process, the
    Council adopted 31 TAC �506.28(b). This provision is intended to fold the consistency review
    process into the overall project assessment and design process. A federal agency must establish
    an "interagency coordination group (ICG)," like the ICT established for the Houston-Galveston
    Navigation Channels project. Basically, 31 TAC �506.28(b) offers federal agencies a quidpro
    quo. If the federal agency agrees to make its project assessment and design decisions

    Texas Coastal Management Program Final EIS   Part H1 5-19                         August 1996

    collaboratively through a public process, the Council agrees to make its consistency decision
    through that same process.

           To take advantage of 31 TAC �506.28(b), a federal agency must ensure that the following
    prerequisites are met:

      *    The ICG's purview must extend to the overall impacts and design of the federal
           development project, not solely to the consistency determination. (See 31 TAC �506.11,
           definition of "Interagency Coordination Group").

      *    Voting members of the ICG must include the nonfederal project sponsor and all state and
           federal resource agencies with jurisdiction over the project. (See 31 TAC �506.11,
           definition of "Interagency Coordination Group"). This must include at least three
           Council member agencies. (See 31 TAC �506.28.)

      *    The ICG process must contain opportunities for participation by citizens and local
           governments. (See 31 TAC �506.11, definition of "Interagency Coordination Group").

      *    The majority of Council agency representatives on the ICG must find the project
           consistent with the goals and policies of the TCMP. In addition, the ICG must find the
           project consistent. (See 31 TAC �506.28.)

      *    The federal agency must adopt the ICG's consistency finding and submit it to the
           Council. (See 31 TAC �506.28.)

           The ICG process includes opportunities for participation by citizens and local
    governments. First, 31 TAC �505.11 anticipates that the federal agency will include
    representatives of the public and affected interest groups in the early "scoping" phase of the
    project, when alternatives are evaluated and designed and the federal agency chooses a preferred
    alternative. Second, public participation will take place through the public notice and comment
    opportunities provided by the National Environmental Policy Act (NEPA). The federal agency's
    NEPA environmental assessment (EA) or environmental impact statement (EIS) for the project
    must address the CZMA consistency requirement. Since the public will be able to review and
    comment on the EA or EIS, the public can review and comment on the consistency of the
    project. The full Council will seek public comment on the consistency of the project in
    coordination with the NEPA process. In addition, the Council representatives serving on the
    ICG will report to the full Council at its quarterly public meetings.

           Another provision, 31 TAC �506.28(c), also relates to the proposed plan for deepening
    and widening of the Houston-Galveston Navigation Channels. Essentially, it recognizes that the
    Houston-Galveston Navigation Channels Project constitutes the Port's and the Galveston
    District's comprehensive long-term plan to make all dredging related to these channels consistent
    with the goals and policies of the TCMP.

           To keep the channels at their proper depths until this comprehensive plan is implemented,
    however, it is likely that there will be a need for periodic maintenance dredging. An October
    1994 memorandum of agreement (MOA) between the Council and the Galveston District

    Texas Coastal Management Program Final EIS   Part II 5-20                          August 1996

               establishes a process for consistency review of federal maintenance dredging over the next five
               years. The products of the reviews under the MOA are long-term plans for the maintenance
    is ~~dredging of each commercial waterway project in the coastal zone.

                      The Houston-Galveston Navigation Channels Project already provides such a plan that is
               consistent with the goals and policies of the TCMP. Therefore, the TCMP calls for a special
               process for obtaining a consistency agreement for maintenance dredging of the channel in the
               interim between federal approval of the TCMiP and implementation of the plan. Under 31 TAC
               �506.28(c), interim maintenance dredging associated with the Houston-Galveston Navigation
               Channels Project is presumed to be consistent with 31 TAC �501.1 4()( 1) and the associated
               provisions of the TCMP's dredging and dredged material placement policy, including the
               beneficial use provisions. This provision creates a substantive presumption of consistency, not a
               procedural exception. Therefore, it requires the interim maintenance dredging of the Houston
               Galveston Navigation Channels Project to undergo a consistency review under the MOA referred
               to in 31 TAG �506.24(c) to determine if it meets the conditions in 31 TAG �506.28(c) for a
               presumption of consistency.

                      Thereafter, if the interim maintenance dredging takes place in a manner that is
               substantially consistent with the current environmental assessment or environmental impact
               statement for the project, and the project is not modified, then the maintenance dredging project
               shall be presumed substantively consistent with all provisions of the dredging and dredged
               material placement policy.

    . 5~~~. Federal A~rencv Actions (15 CFR � �930.50, 930.57, and 930.58)

                      Applicants for federal actions listed in 31 TAG �506.12 must conduct the proposed
               federal action in a manner that is consistent with the goals and policies of the TCMP. Applicants
               must submit a consistency certification to the Council secretary upon filing the application with
               the federal agency. The consistency certification must read as follows:

                      "The proposed federal agency action is consistent with the TCMvP goals and
                      policies and will be conducted in a manner consistent with such program."

                      In addition to the consistency certification, the applicant for a federal action must furnish
              the state with: (1) a detailed description of the proposed action and its associated facilities
               adequate to permit an assessment of their probable effects on coastal natural resources; (2) a list
               identifying all federal, state, and local permits or authorizations subject to the TCMP and
              required for the proposed action and its associated facilities; (3) a brief assessment relating the
              probable effects of the proposed action and its associated facilities on CNRAs to the relevant
               elements of the TCMP; and (4) a brief set of findings, derived from the assessment, indicating
              that the proposed activity, its associated facilities, and their effects are all consistent with the
              goals and policies of the TCMP. A copy of the federal application and al supporting material
              provided to the federal agency may be submitted to meet the requirements of (l) above if the
              materials contain the required information.

                      Maps, diagrams, technical data, and other relevant material must be submitted when a
              written description will not adequately describe the proposed activity. The applicant must give

              Texas Coastal Management Program Final EIS   Part 11 5-21                          August 1996

    appropriate weight to the goals and policies of the TCMP. The proposed activity must be
    consistent with the enforceable policies. Federal regulations require the applicant to adequately
    consider "encouragement" or advisory policies of the TCMP; however, the Council cannot base i
    its finding of consistency on these policies.

           At the request of the applicant, the state will provide assistance for developing the
    assessment and findings required in (2) and (3) above.

           Upon receipt of an administratively complete consistency certification, the Council will
    conduct a consistency review of the activity. If the activity is found to be consistent, the Council
    will issue a consistency concurrence. A federal agency may, if allowed under federal law or
    regulation, continue its permitting or authorization process and issue the permit if the application
    mieets federal requirements upon the issuance of a concurrence or a conclusive presumption of
    concurrence.-

           To avoid delays, applicants for federal licenses and permits must, to the extent
    practicable, consolidate related federal and state license and permit activities subject to
    consistency review. Council objection to one or more of the federal license or permit activities
    submitted for consolidated review does not prevent the applicant from receiving federal agency
    approval for those federal license and permit activities found to be consistent.

           To avoid duplication and delays in consistency reviews of equivalent state and federal
    permits, a provision of the federal consistency review rule allows the Council to direct that one
    or the other of the permits be reviewed for consistency, but not both. Equivalent state and
    federal permits are those that authorize the same activities because they have as their legal
    foundation the same or very similar statutory origins. For example, a U.S. Environmental
    Protection Agency NPDES permit would be equivalent to a state TNRCC or RRC wastewater
    discharge permit. These permits cover the same activities--discharge of pollutants into waters of
    the United States--and are related legally. Both TNRCC and RRC are using their statutory
    wastewater discharge authorities to obtain authorization from EPA to operate the NPDES
    program in Texas in lieu of EPA. A second example is federal U.S. Army Corps of Engineers
    permits for the discharge of dredged or fill material and state TNRCC and RRC certifications of
    compliance with water quality standards. They cover the same activities and are both based on
    requirements of the federal Clean Water Act.

           If an equivalent state permit falls below the threshold for referral established under the
    state consistency review rule (Chapter 505, Subchapter B), the Council may only detennine the
    agency or subdivision action's consistency by using the process provided in 31 TAC Chapter
    505 (relating to Council Procedure for State Consistency with Coastal Management Goals and
    Policies). If an equivalent state permit is for a proposed action above the threshold for referral
    established under the state consistency review rule (Chapter 505, Subchapter B), the Council
    may determine the consistency of the agency or subdivision action or of the federal license or
    permit, but not both.

           The chairman or three members of the Council must notify' the applicant if additional
    information is required to review the consistency certification. If the chairman or three members
    of the Council have not notified the applicant of the need for more information within 15 days of

    Texas Coastal Management Program Final EIS    Part UI 5-22                         August 1996

               receipt of the certification, the certification will be considered complete for purposes of
    Is ~~commencement of Council review.

                a. Federal Azencv Actions: Council Referral and Review Procedures (15 CFR ��930.60,
                   930.63, and 930.64 and 31 TAG ��506.33 and 506.34)

                      Federal regulations limit the time within which the states can issue consistency
               concurrences or objections to six months from receipt of the consistency certification. The
               Council will review any consistency certification for a federal action that any three members
               agree presents a significant unresolved dispute regarding consistency with the goals and policies
               of the TCM4P. The consistency certification must be referred within 45 days of receipt of an
               administratively complete consistency certification. If a consistency certification has not been
               referred within 45 days, the action is conclusively presumed to be consistent. Although federal
               regulations allow the Council to take 90 days to refer the consistency certification and 180 days
               to concur with or object to the certification, the Council compressed the time schedule to
               conform procedures for review of federal actions to the procedures for review of state and
               subdivision actions.

                      If a decision has not been issued within 45 days following receipt of an administratively
               complete consistency certification, the applicant and the federal agency must be notified in
               writing of the status of the matter and the basis for fuirther delay.

     0               ~~~~~If three members of the Council refer the matter to the Council for review, the Council
               must review and make a finding regarding the consistency of the proposed action with the TCMP
               within 90 days following receipt of the administratively complete consistency certification. If
               the activity described in the consistency certification is found to be inconsistent with the TCMP
               goals and policies, the Council will issue a consistency objection.

                      The only basis on which the Council may object to a consistency certification is: (1) the
               proposed activity is inconsistent with the goals and policies of the TCMP, or (2) the applicant
               failed to provide the required information and data listed in this chapter after receiving a written
               request from the state.

                      Council objections will describe: (1) how the proposed activity is inconsistent with the
               specific elements of the TCMP; (2) alternative measures (if they exist) which, if adopted by the
               applicant, would permit the proposed activity to be conducted in a manner consistent with the
               TCMIP; (3) the nature of the information requested and the necessity of having such information
              to determine the consistency of the proposed activity if the objection is on the grounds of
               insufficient information; and (4) a statement informing the applicant of a right of appeal to the
               Secretary of the U.S. Department of Commerce if the proposed activity is inconsistent with the
               TCMP but consistent with the objectives or purposes of the CZMA or is necessary in the interest
               of national security.

                      Following receipt of a consistency objection, the federal agency shall not proceed with
              the federal action except under special circumstances described later in this chapter. If the

              Texas Coastal Management Program Final EIS    Part 11 5-23                           August 1996

    federal agency determines that an application will not be approved while the state is conducting
    its consistency review, the federal agency must immediately notify the applicant and the
    chairman.

           The Council will work with the applicant and the federal agency during the consistency
    review period to resolve any disputes concerning the proposed federal agency action and to agree
    on conditions, which, if met by the applicant, will result in state concurrence and meet federal
    permit requirements.

     b. Federal AQencv Actions: General Concurrence (15 CFR �930.53(c) and 31 TAC �506.35)

           The Council reserves the right to issue a general concurrence for minor federal agency
    actions that are individually inconsequential but that will cumulatively result in adverse effects
    on CNRAs. Minor federal agency actions that satisfy the conditions of the general concurrence
    are not subject to the consistency certification requirements of the previous section.

    6. Outer Continental Shelf Plans (I15 CFR ��930.74, 930.76, and 930.77 and 31 TAC �506.40)

           OCS plans submitted to the Secretary of the Interior or a designee must include
    consistency certifications ensuring consistency with the TCMP of the federal actions that will be
    taken to authorize activities described in the OCS plan. The consistency certification must read
    as follows:

           "The proposed activities described in detail in this plan comply with Texas'
           approved coastal management program and will be conducted in a manner
           consistent with such program."

           The person submitting the OCS plan must identify all federal agency actions described in
    detail in the plan which are subject to federal consistency review and be satisfied that the
    proposed federal agency actions will be consistent with the goals and policies of the TCMvP
    before submitting the consistency certification.

           In addition to the consistency certification, the person submitting the plan must furnish
    the Council secretary with the following: (1) a detailed description of the proposed activities and
    their associated facilities adequate to permit an assessment of their probable effects on CNRAs;
    (2) a list identifying all federal, state, and local actions subject to the TCMP and required for the
    proposed activities and their associated facilities; (3) a brief assessment relating the probable
    effects of the proposed activities and their associated facilities on CNRAs to the relevant
    elements of the TCMP; and (4) a brief set of findings, derived from the assessment, indicating
    that federal actions proposed to authorize each of the proposed activities will be consistent with
    the goals and policies of the TCMP.

           Maps, diagrams, technical data, and other relevant material must be submitted when a
    written description will not adequately describe the proposed activity. The person submitting the
    plan must give appropriate weight to the goals and policies of the TCMP. The proposed
    activities must be consistent with the enforceable policies of the TCMiP. Federal regulations

    Texas Coastal Management Program Final EIS   Part II 5-24                            August 1996

    require the applicant to adequately consider advisory policies of the TCMP; however, the
    Council cannot base its concurrence regarding consistency on these policies.

            The person submitting the OCS plan is responsible for furnishing the Council with a copy
    of the plan (excluding proprietary information) and consistency certification. (See �506.40).

            Persons submitting OCS plans are strongly encouraged to work with other federal
    agencies in an effort to include, for consolidated state agency review, consistency certifications
    and supporting data and information applicable to OCS-related federal agency actions affecting
    CNRAs which are not required to be described in detail in OCS plans but which are subject to
    TCMP consistency review. If the person does not consolidate such OCS-related federal agency
    actions with the TCMP consistency review of the OCS plan, such activities will remain subject
    to TCMP consistency review under the requirements for federal agency actions.

           The chairman or three members of the Council must notify the person submitting the plan
    if additional information is required to review the consistency certification. If the chairman or
    three members of the Council have not notified the person of the need for more information
    within 15 days of receipt of the certification, the certification will be considered complete for
    purposes of commencement of Council review.

     a. OCS Plans: Council Referral and Review Procedures (15 CFR ��930.79, 930.80, and 930.81
        and 31 TAC � �506.42, 506.43, and 506.44)

           Federal regulations state that the Council must issue consistency concurrences or
    objections within six months of receipt of the consistency certification. The Council will review
    any consistency certification for a federal action described in detail in the OCS plan that three
    members of the Council agree presents a significant unresolved issue regarding consistency with
    the goals and policies of the TCMP. Three members of the Council must refer the consistency
    certification within 45 days of receipt of an administratively complete consistency certification.
    If a decision has not been made by the Council within 45 days, then the Council chairman must
    notify the person submitting the plan, the Secretary of the Interior, and the Assistant
    Administrator of the reason for the delay. If the Council does not refer the consistency
    certification within 45 days of receipt of the certification, the Council's concurrence with the
    consistency certification is conclusively presumed.

           If the certification is referred, the Council must review and find whether the proposed
    action is consistent with the goals and policies of the TCMP within 90 days of the date the
    Council secretary received the certification. If the action described in the consistency
    certification is found to be inconsistent with the TCMP goals and policies by a two-thirds
    majority of the Council, the Council will issue a consistency objection.

           The only basis on which the Council may object to a consistency certification is: (1) the
    proposed action is inconsistent with the goals and policies of the TCMP; or (2) the applicant
    failed to provide the required information listed under "Procedures for Outer Continental Shelf
    Plans" after receiving a written request from the state.

           Council objections will provide a separate discussion for each objection and describe: (1)

    Texas Coastal Management Program Final EIS   Part II 5-25                          August 1996

    how the proposed action will be inconsistent with the TCMIP goals and policies; (2) alternative
    measures (if they exist) which, if adopted by the applicant, would permit the proposed action to
    be conducted in a manner consistent with the TCMP; (3) the nature of the information requested
    and the necessity of having such information to determine the consistency of the proposed action
    if the objection is on the grounds of insufficient information; and (4) a statement informing the
    applicant of a right of appeal to the Secretary of the U.S. Department of Commerce if the
    proposed action is inconsistent with the TCMIP but consistent with the objective or purposes of
    the CZMA or is necessary in the interest of national security.

           Following receipt of a consistency objection, the federal agency cannot take the federal
    action when it is proposed except under special circumstances described later in this chapter. A
    Council objection to one or more of the OCS-related federal actions submitted for consolidated
    review does not prevent the person from receiving federal agency approval for: (1) those OCS-
    related federal actions found to be consistent with the TCMP; and (2) the federal actions
    described in detail in the OCS plan, provided the Council concurs with the consistency
    certification for such plan. Similarly, a Council objection to the consistency certification for an
    OCS plan does not prevent the person from receiving federal agency approval for those OCS-
    related federal actions determined by the Council or conclusively presumed to be consistent with
    the TCMIP.

           The Council will work with the applicant and the federal agency during the consistency
    review period to resolve any problems with the proposed action and to agree on conditions,
    which, if met by the applicant, will result in state concurrence and meet federal permit
    requirements.

           If the Council finds that the actions described in detail in the OCS plan are consistent
    with the TCMP goals and policies and issues a concurrence, or if concurrence is conclusively
    presumed, the person who submitted the plan will not be required to submit additional
    consistency certifications and supporting information for Council consistency review at the time
    federal applications are actually filed for the federal actions to which the concurrence applies.

           A person who submits an OCS plan which receives TCMP concurrence must send the
    Council secretary copies of applications for actions described in detail in the OCS plan. To
    allow the state to monitor the activities, these applications must be sent to the Council secretary
    after they are filed. Confidential and proprietary material within such applications need not be
    included.

     b. Amended or New OCS Plans (I15 CFR ��930.83-930.85)

           If the Council objects to a person's OCS plan and an appeal under Subpart H of 15 CFR
    Part 930 is unsuccessfuil, the person must submit an amended or new plan to the Secretary of the
    Interior and to the Council secretary along with a consistency certification and information
    necessary to support the new consistency determination. The information must specifically
    describe the modifications made to the original OCS plan, and how the modifications will ensure
    that all of the proposed federal actions described in detail in the amended or new plan will be
    conducted in a manner consistent with the goals and policies of the TCOMP.

    Texas Coastal Management Program Final EIS   Part 11 5-26                          August 1996

                       Consistency review for amended or new plans begins upon receipt of a copy of the
               amended or new OCS plan, consistency certification, and accompanying information. If no
    is ~~decision is issued within the review period, the Council is conclusively presumed to concur with
               the person's consistency certification. The consistency review requirements for OCS plans
               described above apply to consistency review of amended or new OCS plans.

                c. Comntliance with OCS Plans (15 CFR �930.86)

                       The U.S. Department of the Interior and the Council are required to cooperate in their
               efforts to monitor federally licensed and permitted activities described in detail in OCS plans to
               make certain that such activities continue to conform to both federal and state requirements.

                      If Council members find that a person is failing substantially to comply with an approved
               OCS plan subject to the requirements described above, and that such failure involves the conduct
               of activities affecting CNRAs in a manner that is not consistent with the approved TCMP, the
               Council may review the matter.

                      If the Council finds that the person is failing substantially to comply with an approved
               OCS plan, the Council will inform the Minerals Management Service. The claim must include:
               (1) a description of the specific activity involved and the alleged lack of compliance with the
               OCS plan, and (2) a request for appropriate remedial action. A copy of the claim must be sent to
               the person and the Assistant Administrator.

                      If, after a reasonable time following the request for remedial action, the Council
               maintains that the person is failing to comply substantially with the OCS plan, the governor or
               the Council may file a written objection with the Secretary of Commerce. If the Secretary of
               Commerce finds that the person is failing to comply substantially with the OCS plan, the person
               must submit an amended or new OCS plan along with a consistency certification and supporting
               information to the Secretary of the Interior and to the secretary of the Council.

                      Following such a finding by the Secretary of Commerce, the person must comply with
               the originally approved OCS plan, or with interim orders issued jointly by the Secretary of
               Commerce and the Minerals Management Service, pending approval of the amended or new
               OCS plan. The review process for amended or new OCS plans applies to further Council review
               of the consistency certification for the amended or new plan.

                      A person will be found to have failed substantially to comply with an approved OCS plan
               if the Council claims, and the Secretary of Commerce finds, that one or more of the activities
               described in detail in the OCS plan which affects CNRAs are being conducted or are having an
               effect on CNRAs substantially different from that originally described by the person in the plan
               or accompanying information and, as a result, that the activities are no longer being conducted in
               a manner consistent with the TCMP.

                      The Secretary of Commerce may make a finding that a person has failed substantially to
    *         ~~~comply with an approved OCS plan only after providing a reasonable opportunity for the person
               and the Secretary of the Interior to review the Council's objection and to submit comments for
               the Secretary of Commerce's consideration.

               Texas Coastal Management Program Final EIS   Part UI 5-27                           August 1996

    7. State and Local Government Applications for Federal Assistance (15 CFR ��930.94, 930.95
       and 31 TAC �506.50)

           The Council will use the Texas Review and Comment System (TRACS) and its time
    frames to review state and local government applications for federal assistance. The Texas
    Review and Comment System is the intergovernmental review process established under
    Executive Order 12372. TRACS establishes a statewide system that provides state and local
    officials opportunities to review and comment upon state plans, applications for federal or state
    financial assistance, and environmental impact statements related to projects or programs that
    affect their jurisdiction before the proposals are approved or funded.

           While state and local government applicants for federal assistance programs must
    undertake their proposed activities in a manner consistent with the goals and policies of the
    TCMP, the procedural and information requirements for applicants for federal assistance are
    those established by rule for TRACS (1 TAC ��5.191-5.253).

           The responsibility for providing copies of the application to the Council rests with the
    State Single Point of Contact (SSPOC), established in TRACS to provide a clearinghouse for
    intergovernmental review. Upon receiving an application or a notice of intent to file an
    application from a state or local government for federal assistance listed under 31 TAC �506.12
    of the federal consistency rule, the SSPOC will forward copies of the application or notice of
    intent to the secretary of the Council.

      a. Federal Assistance: Council Referral and Review Procedures (15 CFR ��930.96-930.98 and
        31 TAC ��506.51 and 506.52)

           The Council will review state and local government applications for federal assistance
    that three regular members refer to the Council. The Council must issue a consistency
    concurrence or objection within 60 days of the date the SSPOC received the application if no
    Notice of Intent was submitted. If a Notice of Intent was submitted by the applicant to the
    SSPOC prior to submitting the application, the Council must issue a decision within 45 days of
    the date the SSPOC received the application. Noncompetitive continuation grant applications
    must be reviewed by the Council within 30 days of the SSPOC's receipt of the application.

           If the Council concurs with the proposed project, the federal agency may grant the federal
    assistance to the applicant agency. Notwithstanding Council concurrence with the proposed
    project, the federal agency may deny assistance to the applicant agency. Federal agencies should
    not delay processing applications pending receipt of Council approval or objection. If a federal
    agency determines that an application will not be approved, it must immediately notify the
    applicant agency and the Council secretary.

           If the Council objects to the proposed project, the Council secretary will notify the
    applicant agency, federal agency, and Assistant Administrator of the objection. Council
    objections must describe: (1) how the proposed project is inconsistent with specific elements of
    the TCMP; and (2) alternative measures (if they exist) which, if adopted by the applicant agency,
    would permit the proposed project to be conducted in a manner consistent with the TCMP goals
    and policies.

    Texas Coastal Management Program Final EIS    Part II 5-28                           August 1996

            A Council objection may be based on a determination that the applicant agency has
    failed, following a written Council request, to supply necessary information. If the Council
    objects on the grounds of insufficient information, the objection must describe the nature of the

    information requested and the necessity of having such information to determine the consistency
    of the activity with the TCMP goals and policies.

            Council objections must include a statement informing the applicant agency of a right of
    appeal to the Secretary of Commerce on the grounds described in Subpart H of Part 930 of the
    federal regulations. Following receipt of a Council objection, the federal agency cannot approve
    assistance for the activity except as provided in Subpart H of 15 CFR, Part 930.

           The Council will monitor proposed federal assistance activities not listed in the TCMP
    rules. It will immediately notify all applicant agencies, federal agencies, and any other affected
    agency or office identified in the intergovernmental review process of proposed activities which
    can reasonably be expected to affect the TCMP area and which the Council is reviewing for
    consistency with the TCMP. Notification will also be sent by the secretary of the Council to the
    Assistant Administrator. The Council must inform the parties of objections within the time
    period permitted under the intergovernmental review process; otherwise the Council waives its
    right to object to the proposed activity.

           If, within the permitted time period, the Council notifies the federal agency of its
    objection to a proposed federally assisted activity, the federal agency cannot provide assistance
    to the applicant agency except as provided in Subpart H, unless the Assistant Administrator
    disapproves the Council's decision to review the activity. The Assistant Administrator is guided
    by the provisions of ��930.54(c) and (d).

    8. Mediation of Disrutes bv the Secretary of Commerce (15 CFR, Part 930, Subpart G)

           If a serious disagreement arises between a federal agency and the Council while
    conducting federal consistency review, the Secretary of Commerce may be requested to mediate
    the disagreement. Secretarial mediation is available for: (1) license and permit disputes; (2)
    previously reviewed federal license and permit activities; (3) negative consistency determination
    disputes (for direct federal actions); (4) disputes concerning proposed direct federal actions; (5)
    previously reviewed direct federal actions; (6) federal assistance disputes; and (7) previously
    reviewed federal assistance activities.

           The use of informal means for resolving disputes is encouraged by the federal statute and
    will be pursued by the Council whenever a disagreement arises. When informal means do not
    resolve the disagreement, the procedures established under 15 CFR, Part 930, Subpart G and
    TEX. NAT. RES. CODE �33.206(g) will be followed.

    9. Secretarial Review Related to the Objectives or Pumoses of the Act and National Security
       Interests (15 CFR, Part 930, Subpart H)

           Under federal regulation, the Secretary of Commerce may review a federal license or
    permit activity, including those described in detail in an OCS plan, or a federal assistance activity

    Texas Coastal Management Program Final EIS   Part II 5-29                           August 1996

    which the Council has found to be inconsistent with the TCMP and find the activity to be
    permissible if it satisfies the following: (1) the activity furthers one or more of the competing
    national objectives or purposes contained in �302 or �303 of the CZMA; (2) when performed                 0
    separately or when its cumulative effects are considered, it will not cause adverse effects on
    CNRAs substantial enough to outweigh its contribution to the national interest; (3) the activity
    will not violate any requirements of the Clean Air Act, as amended, or the Clean Water Act, as
    amended; and (4) there is no reasonable alternative available (e.g., location or design) which
    would permit the activity to be conducted in a manner consistent with the TCMP.

           Additionally, an activity will be found permissible by the Secretary of Commerce if it is
    necessary in the interest of national security. The federal regulations of 15 CFR, Part 930,
    Subpart H establish procedures that must be followed to file an appeal for Secretarial review.

    10. Review bv the Assistant Administrator on Behalf of Interested Parties (15 CFR, Part 930,
        Subpart I)

           The federal regulations establish procedures for interested parties to notify the Assistant
    Administrator of federal actions which are believed (1) to be inconsistent with the TCMP but
    which are not found to be so by the federal agency or the Council, and (2) to have been
    incorrectly determined to be inconsistent with the TCMP. The subpart also provides for the
    reporting of any federal actions found by the Assistant Administrator to be inconsistent with the
    TCMP and for the performance review of state implementation of the federal consistency
    provisions of 15 CFR, Part 930.

                                                                                                              e0

    Texas Coastal Management Program Final EIS    Part II 5-30                          August 1996

                                           CHAPTER SIX.
                                 SPECIAL PLANNING ELEMENTS

    A.     Shorefront Planning

    1. Access to Gulf Beaches

           The Texas Open Beaches Act (TEX. NAT. RES. CODE ANN. �61.011 et seq.) "declares
    and affirms" the public's right to "free and unrestricted" access to and from "the state-owned
    beaches bordering on the seaward shore of the Gulf of Mexico." On the "wet beach," between
    the mean low and mean high tide lines, the public enjoys an access right by virtue of state
    ownership and public trust. Above the high tide line, across the "dry beach" to the vegetation
    line, the public enjoys an access right or public easement under common law concepts such as
    custom, prescriptive right, and dedication. This dry beach easement is usually demonstrated by
    the long-standing public use of nearly all parts of the Texas Gulf Coast.

           Under the Open Beaches Act, the burden of proof rests with the private landowner rather
    than with the beach user in the event of a conflict regarding public traversal or use of private
    land. The act prohibits the erection of any physical barrier that would impede public access to
    the beach and any written or oral claim that the public beach is private property or that the public
    does not have the right of access to it.

           The Open Beaches Act applies only to Gulf beaches. There are 367 miles of open Gulf
    shoreline in Texas. Under the Open Beaches Act, 293 miles are open for public use. Of these,
    173 miles are considered easily accessible; that is, accessible by driving along the shore or by
    walldng no more than one mile from a point that can be reached by a two-wheel-drive vehicle
    (Texas Energy and Natural Resources Advisory Council, 1982).

           The lead enforcement official for public beach rights under the Open Beaches Act is the
    Texas Attorney General, who may act independently or on the request of the Commissioner of
    the General Land Office. Other enforcement officials are the pertinent county attorney, district
    attorney, or criminal district attorney. Remedies under the Act include (1) injunctions to remove
    and prevent encroachments or other interferences with public beach access, (2) declaratory
    judgements to clarify public and private rights, and (3) civil penalties.

           The Open Beaches Act directs the GLO to promulgate coastwide rules covering the
    acquisition of beach accessways, beach user fees, protection of the public easement from erosion,
    vehicular traffic on public beaches, contents of local beach access and use plans, and guidelines
    for construction on land adjacent to public beaches. These rules (31 TAC ��15.1-15.10) were
    adopted by the GLO on February 18, 1993.

           Coastal counties and municipalities are also required to develop dune protection and
    beach access plans conforming to the GLO rules. These local plans were to be submitted to the
    GLO by August 16, 1993, for a 60-day review to determine their compliance with the adopted
    rules. Counties and municipalities whose plans are certified have ordinance power over
    beachfront development, beach fees, and vehicular prohibitions. Amendments to the certified

    Texas Coastal Management Program Final EIS    Part II 6-1                          August 1996

    plans must be submitted to the attorney general and the land commissioner for review. The
    commissioner will certify an amendment if the action is consistent with the GLO rules and the
    local beach access plan.

           No person may engage in construction landward of and adjacent to a public beach
    without proper certification. Applicants are required to obtain, from the appropriate city or
    county local government, a beachfront construction certificate which certifies that the activity is
    consistent with the Open Beaches Act and will not obstruct public access to or use of the beach.
    For construction in critical dune areas, an applicant must obtain a dune protection permit from
    the proper local authority. This dune protection permit certifies that the activity will not
    materially weaken dunes or dune vegetation seaward of the local government's dune protection
    line.

           The attorney general, independently or at the request of the land commissioner or any
    county, district, or district criminal attorney, can file suit to prevent uncertified activity. In the
    same suit, the attorney general, land commissioner, or local attorney can recover penalties and
    costs for removing the obstruction from the public easement. The violator is liable for a civil
    penalty of not less than $50 nor more than $1000 a day. Coastal areas within state or national
    parks are exempt from the planning directive.

           One required element of the local plan is a description and map of all accessways to the
    public beach. Another element is a vehicular control plan which describes short- and long-term
    goals, beach user fees, dune protection for new beach accessways, and identification of fee and
    non-fee areas. If a local government proposes to close the beach to vehicles, the beach access
    plan must detail the provisions that will be made for equal or better access. Standards for
    preserving and enhancing public beach use and access are included in the GLO rules (31 TAC
    15.7(g)). The GLO will use information in the local plans to compile an inventory of beach
    access points and will enter this information into its geographic information system database.

    2. Access to Bavshores and Coastal Waters

           Texas does not have a regulatory equivalent of the Open Beaches Act for bay shorelines.
    Access to public bayshore areas (federal, state, county, or city parks and refuges) is protected by
    the various public entities that own and operate recreational facilities. Chapter 33 of the Texas
    Natural Resources Code gives priority to public access to and use of coastal waters over
    individual use. Bayshore access afforded by public highway rights-of-way is protected by the
    Texas Department of Transportation (TxDOT). TxDOT adheres to a policy of allowing these
    rights-of-way to be used for access to the bayshores as long as such usage does not create a
    hazard to public safety.

           The Texas Outdoor Recreation Plan (TORP, 1990), developed by the TPWD, notes that
    there is considerable access to saltwater resources in the Houston/Galveston area but that access
    to Galveston Bay should be improved. Saltwater resources are abundant along the "Golden
    Crescent" and "Coastal Bend" regions of the Texas coast, but many areas lack access or facilities
    or are overcrowded. The TPWD oversees the state's boat ramp construction program, which
    offers matching grants to local sponsors.

    Texas Coastal Management Program Final EIS    Part II 6-2                         August 1996

                         The Galveston Bay National Estuary Program (GBNEP) included in its Comprehensive
                  Conservation and Management Plan (CCMP), called the Galveston Bay Plan, provisions for the
                  development and implementation of a shoreline access plan. In its five-year study of Galveston
                  Bay, the GBNEP found that public access to the Galveston Bay shoreline needs to be improved
                  and set the goal of improving public access (Galveston Bay Plan, April 1995, Action Plan SM-
                  5). The plan recommends increasing access to public bay shorelines and improving public
                  shoreline parks and other special public areas in a manner consistent with protection of the
                  ecosystem.

                  3. Enforceable Policies and Legal Authorities

                         The General Land Office, Office of the Attorney General, and coastal municipalities and
                  counties manage access to coastal waters or beaches or certify activities for compliance with the
                  Open Beaches Act (TEX. NAT. RES. CODE ANN. �61.001 et seq.; 31 TAC �� 15.1-15.10).

                  4. Funding Programs

                         The GLO rules for management of the beach/dune system allow local governments with
                  approved dune protection and beach access plans to collect fees for use of the public beach.
                  These fees may be applied to the acquisition and maintenance of off-beach parking and
                  accessways (31 TAC � 15.8(f)). State grants for enhancement of access and facilities are
                  available to coastal communities from the TPWD's Land and Water Conservation Fund and
                  Texas Recreation and Parks Account.

    0

                  Texas Coastal Management Program Final EIS    Part II 6-3                         August 1996

    B. Shoreline Erosion Resinonse

    1. Introduction0

           The Texas coastline is composed of barrier islands, ancient deltaic headlands, chenier
    plains, peninsulas, bays and estuaries, and natural and man-made passes. These are dynamic
    environments, constantly reshaped by the natural processes of erosion and accretion. They are
    dependent on the balance between sea level, sediment supply, and wave and tidal energy for
    stability.

           Erosion is a subject of primary concern on the Texas coast, where it has serious adverse
    effects on beaches and bayshores and contributes to habitat degradation and loss. Prime tourist
    beaches ar vanishing; the Gulf Intracoastal Waterway is threatened by the possibility of a major
    breach at Sargent Beach; and agricultural and industrial lands, infrastructure, and homes are
    being destroyed. The erosion is attributed to relative rise in sea level and to the fact that the
    sediment removed by wave energy exceeds that supplied to the beach by longshore currents.
    Humans also contribute to erosion by altering natural sedimentation patterns through
    development and shoreline stabilization.

           Rivers are the primary source of sand for the building of barriers and beaches in the
    western Gulf of Mexico. Climate change has caused natural reductions in the sediment supply,
    but human activities have exacerbated the problem. Flood-control structures have blocked
    sediment transport in many rivers.

           Only small sections of the Texas Gulf shoreline have been stabilized by erosion-response0
    structures. Hard or rigid structures erected to prevent or slow erosion or protect the shoreline
    include jetties, groins, breakwaters, rubble mounds, riprap, seawalls, bulkheads, retaining walls,
    and revetments. Erosion-response structures protect property against erosion. But while
    landward properties may benefit, adjacent bayshore property or beaches and dunes may not.
    Wave energy reflected by the structures enhances erosion at the structure's base and end points.
    Overtopping and scouring by waves can undermine a seawall and eventually cause it to collapse.
    Any erosion-response structure that protrudes into the intertidal zone alters the sediment budget
    by either intercepting sand transported by longshore currents or preventing sand from entering
    the littoral system.

           Erosion rates vary along the Texas Gulf Coast. Trends in shoreline change are
    determined from topographic map, aerial photo, and beach profile data spanning a time period of
    decades or longer. Average rates of shoreline erosion can be significant, including greater than 5
    feet per year along nearly 14 miles of the Jefferson County coastline, 24 feet per year at Sargent
    Beach; nearly 13 feet per year at Packery Channel on north Padre Island; and up to 7 feet per
    year at South Padre Island (Morton, 1975; Morton, 1993).

           Erosion is not confined to the Texas Gulf beaches; it also affects the bay systems, where
    it causes the loss of agricultural, industrial, and residential lands and productive wetlands.
    Shoreline erosion rates have been measured for about half of the state's bay shorelines, including
    those of Galveston, Matagorda, San Antonio, Copano, and Corpus Christi bays. In total, about is
    two-thirds of Texas bay shores are eroding at rates of two to nine fl/yr (Morton and Paine, 1990).

    Texas Coastal Management Program Final EIS    Part BI 6-4                          August 1996

    2. Identifvinc and Assessine Shoreline Erosion

            In 1973, the 63rd Texas Legislature directed the Bureau of Economic Geology (BEG) at
    the University of Texas at Austin to calculate the erosion rates along the Texas Gulf shoreline.
    The outcome was a series of published reports (Morton, 1974 and 1975; Morton and Pieper,
    1975a, 1975b, 1977; Morton et al., 1976).

           In 1991, recognizing that coastal erosion was a significant problem, the 71st Texas
    Legislature passed Senate Bill 1053, designating the Texas General Land Office as the lead state
    agency to coordinate erosion avoidance and remediation for the Texas coast. The GLO, in
    cooperation with state and federal agencies and local governments, is developing a coastwide
    policy for managing coastal erosion to identify Texas Gulf beaches that are eroding and rank
    them from most to least critical, and to implement a comprehensive long-term management plan
    for the restoration of the state's critically eroding beaches. This coastwide erosion plan will be
    submitted to the legislature with recommended actions.

           In 1993, the BEG published Open-File Report 93-1, "Shoreline Movement Along
    Developed Beaches of the Texas Gulf Coast: A Users' Guide to Analyzing and Predicting
    Shoreline Changes." This report included a corresponding historical shoreline change map
    (Morton, 1993). Together, these documents describe historical shoreline changes for most of the
    developed sections of the Texas coastline. Copies of the map are available for public review at
    local government planning offices and at the GLO.

           The BEG report will be one of the tools used for identification and ranking of critical
    erosion areas and the development of the coastwide erosion plan. Other criteria that will be
    considered in ranking eroding areas and mitigating coastal erosion are: shoreline length and
    width, type of sediment, and coastal processes (wind direction, wave height, period, and
    direction, and tidal range); potential impacts on structures, public infrastructure, local economy,
    and natural resources, and the benefits gained by protecting them; public support and
    involvement; feasibility and cost of restoring the eroded shoreline; environmental impacts of
    restored shorelines on the beach, nearshore, or dunes; distance from an inlet or pass; the
    projected life of any proposed erosion response project; the amount of public subsidy and the
    public and private benefits; and existing shoreline beach nourishment or maintenance programs.

           Because the cost of restoring eroding areas is high and funding is limited, priorities must
    be set. The coastwide erosion response plan will be the basis for prioritization of shore
    protection and restoration projects.

    3. Manacement of Erodina Areas

           Shorefront property commands the highest price but carries with it the greatest risks of
    flooding and erosion. Most coastal landowners can tell if their property is eroding. Usually,
    what they recognize is short-term shoreline changes caused by storms or human activities. The
    GLO has defined an eroding area as "a portion of the shoreline which is experiencing a historical
    erosion rate of greater than two ft/yr based on published data of the University of Texas at
    Austin, Bureau of Economic Geology."

    Texas Coastal Management Program Final ElS    Part II 6-5                         August 1996

           Applicants proposing construction in eroding areas, which are designated for special
    management, must follow strict guidelines. Structures must be elevated on pilings in accordance
    with FEMA standards and designed for feasible relocation; with limited exception, permittees
    may not pave or alter the ground below the lowest habitable floor; financial assurance to fund
    eventual relocation (flood insurance) must be supplied; and structures must be designed to
    minimize impacts on natural hydrology and not cause erosion. Private erosion response
    structures are prohibited for Gulf-fronting properties except for retaining walls located at least
    200 feet landward of the line of vegetation. These restrictions are established by the GLO rules
    for management of the beach/dune system (31 TAC � 15.6(f)). Eroding areas have not been
    formally designated by the state; however, local governments have included the special
    provisions governing construction in their dune protection and beach access plans. The
    coastwide erosion plan will include recommendations for erosion response and will identify
    critical erosion areas and the conditions where structural erosion control is appropriate.

    4. Enforceable Policies and Legal Authorities

           The GLO, the Office of the Attorney General, the Corps of Engineers, and coastal
    municipalities and counties manage or permit shorefront development and shore protection
    projects (31 TAC ��15.1-15.10; TEX. NAT. RES. CODE ANN. Ch. 33; and 33 U.S.C. �1251 et
    seq. (West 1986 and Supp. 1993)).

           The School Land Board issues leases and easements for structures on state-owned lands
    that may increase the erosion hazard. A use or activity that may exacerbate erosion on state-
    owned land must be approved in advance by the SLB. GLO staff conduct a site visit and work
    with the applicant to determine the best method of erosion response based on a hierarchy of
    stabilization techniques. The SLB currently may allow construction of some groins, bulkheads,
    seawalls, detached breakwaters, and revetments along the state's bay shores if they are
    determined to be the most appropriate erosion response method. Of the structural erosion-
    response methods, riprap is preferred for bayshores because the material provides habitat for
    aquatic life and helps absorb wave energy. Overall, however, the GLO encourages the use of
    nonstructural methods for shoreline stabilization. The GLO's Surface Damage Fund has enabled
    coastal Soil and Water Conservation Districts to successfully protect eroded bay shorelines with
    temporary wave barriers and marsh grass plantings. This program, developed in coordination
    with the U.S. Department of Agriculture's Natural Resources Conservation Service, has also been
    successful in educating the public about the impacts of coastal and shoreline erosion.

           The GLO rules for management of the beach/dune system (31 TAC � � 15.1-15.10)
    prohibit individual Gulf-front property owners from erecting erosion response structures. A
    retaining wall may be permitted 200 feet landward of the natural vegetation line.

           The Coastal Management Program rules also contain the following enforceable policy:

                  "Erosion of Gulf beaches and coastal shore areas caused by construction or
                  modification of commercial navigable waterways or jetties, breakwaters,
                  groins, or shore stabilization projects designed to support or to maintain
                  commercially navigable waterways shall be mitigated to the extent the

    Texas Coastal Management Program Final EIS    Part II 6-6                         August 1996

                   costs are reasonably proportionate to the benefits. Factors to be
                   considered in determining whether the costs of the mitigation are
                   reasonably proportionate to the benefits include environmental benefits,
                   recreational benefits, flood or storm damage prevention benefits, economic
                   development benefits, and all other benefits that will be realized or lost."

    5. Funding

           There is a need for a dedicated and permanent funding source for implementation of a
    shore protection and restoration program in Texas. Project funding is now a local initiative,
    shared with the state and federal government when possible.

    Texas Coastal Management Program Final EIS    Part II 6-7                            August 1996

    C. Enerffv Facility Siting-

    1. Introduction

            The responsibility for developing energy plans and for permitting the siting and operation
    of energy facilities is shared among several federal, state, and local agencies, and different
    permitting processes apply to various types of energy facilities. In �304(6) of the Coastal Zone
    Management Act of 1972, as amended, the term "energy facilities" is defined as any equipment
    or facility which is or will be used primarily in the exploration for, or the development,
    production, conversion, storage, transfer, processing, or transportation of, any energy resource, or
    for the manufacture, production, or assembly of equipment, machinery, products, or devices
    which are involved in any of these activities.

            The term includes, but is not limited to: (1) electric generating plants; (2) petroleum
    refineries and associated facilities; (3) gasification plants; (4) facilities used for the
    transportation, conversion, treatment, transfer, or storage of liquefied natural gas; (5) uranium
    enrichment or nuclear fuel processing facilities; (6) oil and gas facilities, including platforms,
    assembly plants, storage depots, tank farms, crew and supply bases, and refining complexes; (7)
    facilities, including deepwater ports, for the transfer of petroleum; (8) pipelines and transmission
    facilities; and (9) terminals which are associated with any of the aforementioned.

           The CZMA requirements for inclusion of an energy facility siting process in the state's
    coastal management program are found in �923.13 of the regulations. The state must develop a
    planning process capable of anticipating and managing impacts from energy facilities likely to be
    located in, or that directly and significantly affect, the coastal zone. In developing this process,
    the state must:

      *    identify energy facilities likely to locate in, or to directly and significantly affect, coastal
           natural resource areas;

        * establish procedures for assessing the suitability of sites, including evaluation of the costs
           and benefits of proposed and alternative sites in terms of state and national interest, as
           well as local concerns;

      �    identify enforceable state policies, authorities, and techniques for managing energy
           facilities and their impacts; and

      *    identify the process by which public and private parties will be involved in energy facility
           planning and siting.

           In describing the process for involvement of public and private parties in the siting
           process, the state must:

      �    identify the organization, structure, and procedure by which energy facility planning and
           siting decisions are carried out in the state;

    Texas Coastal Management Program Final EIS    Part II 6-8                              August 1996

      *    explain the respective roles of relevant local, state, and federal agencies, their relationship
           to the lead agency and the CMP requirements, and the role of other interested and
           affected parties in consistency review; and
         * provide a clear and detailed description of the administrative procedures and decision
           points where national interests shall be considered. (See Part 11, Chapter Seven,
           Consideration of the National Interest and Activities of Regional Benefit).

    2. Enerev Facilities Likely to Locate on the Texas Coast

           The Texas Gulf Coast is slowly recovering from the economic devastation of the oil price
    collapse in the early 1980s. Oil and, increasingly, natural gas remain mainstays of the region's
    economy in the 1990s, but the Gulf Coast is less dependent on the various facets of the oil and
    gas industry for its economic vitality. In general, the trend of crude oil production is downward.
    The average 7.2 million barrels/month of domestic crude production during the first six months
    of 1992 is the lowest level of production in more than 30 years (Texas Comptroller of Public
    Accounts, 1992). Natural gas production, however, remained constant over the ten-year period
    ending in 1993, with a yearly production averaging 5.6 trillion cubic feet (Railroad Commission
    of Texas, 1994). Natural gas production should play a greater role in the Texas economy
    because of conversion of state agency and metropolitan transit authority vehicles to cleaner-
    burning alternative fuels.

           To meet the continuing demand, energy production off the Texas coast will continue.
     Icreasing economic activity, population growth, and an improving standard of living will
    contribute to a 15 percent rise in the demand for energy services from 1990 to 201 0 (Energy
    Information Administration, 1993).

           Activities in the domestic energy market have slowed since the early 1980s, and existing
    energy facility infrastructure on the Texas coast appears adequate to handle current needs.
    However, it is anticipated that in addition to drilling new wells and workover of old wells, future
    needs may include:

             *    oil and gas facilities, including platforms, assembly plants, storage depots, tank
                   farms, crew and supply bases, and refining complexes;
             �    chemical and petrochemical complexes;
             �    electric generating plants;
             *    pipeline and transmission facilities;
             *    gasification plants;
             �    geothermal plants;
             *    ethanol plants;
                * terminals associated with al of the above; and
                * supporting infrastructure, such as manufacturing, production, or assembly plants.

           Resolution of issues pertaining to the treatment, storage, and disposal of radioactive
    waste will continue to affect schedules for the siting and licensing of high-level and low-level
    radioactive waste disposal facilities and transportation infrastructure. In addition, new science

    Texas Coastal Management Program Final EIS    Part 11 6-9                          August 1996

    and engineering facilities and environmental cleanup and waste management facilities will be
    important in the future. i

    3. Procedures for Assessing the Suitability of Sites

           Energy facility planning and management is shared by local and state governments
    through the zoning, permitting, and consistency review processes. Through Special Planning
    Elements (�501.14(b) of the CMP goals and policies), consistency requirements (Chapters 505
    and 506), and the issuance of permits and leases, the state will ensure that suitable sites for major
    energy facilities are chosen and developed according to the goals and policies of the CMP.

           In addition, the GLO coordinates the use of the Resource Management Code (RMC)
    system. For each tract, state and federal agency biologists, archaeologists, and engineers have
    listed sensitive natural resources such as oyster reefs, bird rookery islands, and important aquatic
    nursery areas. The RMCs alert users to other considerations that may also affect tract
    development plans, such as the presence of archaeological shipwrecks, federal navigation
    channel rights-of-way, and federally protected endangered species. The codes assigned to each
    submerged state land tract indicate recommended guidelines for activities within the tract
    boundaries. Codes are recommended by the Corps of Engineers, National Marine Fisheries
    Service, U.S. Fish and Wildlife Service, Texas Historical Commission, and Texas Parks and
    Wildlife Department. The majority of the codes are designed to protect biologically sensitive
    areas, but some promote navigational safety, preserve recreational values, and safeguard
    archaeological and cultural features. To the extent that they have jurisdiction, local governments
    are encouraged to apply these siting criteria to projects brought before them in the early stages of
    planning.

           RMCs serve several purposes. First, they inform lessees and their project planners about
    sensitive biologic habitats and other features of concern on state-owned submerged lands (6,000
    tracts) in the bays and estuaries of the Texas coast and in the Gulf of Mexico. Second, they also
    inform lessees and project planners about the specific concerns that state and federal resource
    agencies have regarding these sensitive areas. This helps prevent potential resource use conflicts
    associated with the development of a state tract early in the planning process and therefore helps
    protect CNRAs.

           The RMCs are updated and published in the "Notice for Bids" sent to a mailing list of
    approximately 1,600 interested parties and industry before the semiannual sealed-bid lease sales
    held by the SLB in April and October. The notice lists all state-owned submerged tracts
    nominated for lease and contains the lease, bid form, and instructions for bidding.

    4. Enforceable State Policies. Authorities. and Techniaues for Manarina Enerev Facilities
       and Their Imnacts

           Texas' approach to siting may be called "management of impacts." The state sets
    performance standards to maintain the quality of the human and natural environment. These
    performance standards are embodied in the policies of the CMP and implementing agencies, and
    they are administered through the permitting process.

    Texas Coastal Management Program Final EIS    Part II 6-10                           August 1996

            For example, �501.14(b)(1)(B) of the CMP goals and policies, regarding oil and gas
     production on state submerged lands and on private submerged lands, states that lessees,
    easement holders, and permittees shall construct facilities in a manner that avoids impoundment
    or draining of coastal wetlands if practicable, and shall mitigate any adverse effects on coastal
    wetlands impounded or drained in accordance with the sequencing requirements in �501.14(h),
    Development in Critical Areas. Adherence to this policy by agencies issuing permits for
    proposed activities that may adversely affect critical areas will maintain environmental quality
    and permit more accurate estimates of the impacts of proposed projects. The system will also
    provide for accountability in decision-making: review criteria, findings, and justifications will
    be provided to the applicant and interested parties.

           The GLO already has adequate jurisdiction over energy facility siting on state-owned
    land. As steward of Public School Fund land, the GLO determines whether a proposed use of the
    land is appropriate. The SLB and the commissioner of the GLO are authorized to make final
    decisions about permitting the use of this land.

           The GLO and the SLB have authority over the siting of oil and gas exploration and
    production facilities in the bays and estuaries, as well as offshore to the three-marine-league line
    (approximately 10.36 miles), under Chapters 32, 33, 51, 52, and 53 of the Texas Natural
    Resources Code and rules of the GLO and SLB (31 TAC ��9, 13, & 155). The SLB is
    authorized to permit and regulate the placement, design, construction, and use of structures that
    extend onto coastal public submerged land from adjacent land not owned by the state and to
    prescribe reasonable filing fees and fees for the granting of leases, easements, and permits. The
    SLB may grant leases for public purposes; easements for the placement of structures for purposes
    connected with the ownership of littoral property and for the construction of channels, wharves,
    docks, and marinas; and channel easements to the holder of any surface or mineral interest in
    coastal public submerged land for purposes necessary or appropriate to the use of the interest.

           Energy leasing has historically been a major part of the GLO's activities. The Energy
    Division operates under administrative rules governing oil, gas, and hard mineral leasing. These
    rules require energy leases to be consistent with the CUP. Guidelines drafted for subsurface
    leasing in CNRAs will become policy through the rulemaking process. Requirements for plans
    of operations will be adopted in rule form and will become binding on lessees through inclusion
    in lease contracts. The GLO already requires approved plans of operations for hard mineral
    leasing. In addition, activities within a state coastal preserve (state-owned submerged land
    leased to TPWD for management) are subject to limitations on the use of the surface, including a
    requirement that activities be consistent with the management plan designed for the area.

           To inventory and regulate oil and gas facilities already sited on the coast, the Oil Spill
    Prevention and Response Act of 1991 requires operators of waterfront and offshore facilities that
    drill, pump, store, handle, or transfer oil in Texas to apply for a discharge prevention and
    response certificate. The GLO set spill prevention and response standards for these facilities in
    rules, and the facilities must be certified in order to operate. A facility is not permitted to operate
    without this certificate. As of August 1993, the GLO had issued 241 Coastal Facility
    Certificates.

    Texas Coastal Management Program Final EIS    Part 11 6-11                           August 1996

           The GLO regulates seismic exploration as well as siting of all facilities including canals,
    pipelines, and platforms on state-owned submerged lands.

           The following agencies regulate energy-related activities and structures on state and
    private land:

      *    U.S. Army Corns of Engineers - dredging and filling in waters of the United States
           including wetlands.

      *    Railroad Commission of Texas - tidal disposal of oil and gas waste, drilling permits, 401
           certification of federal dredge and fill permits and federal oil and gas NPDES permits,
           solid waste disposal permits (including Class II injection and disposal well permits), and
           administration of pipeline safety regulations for intrastate pipelines.

      *    U.S. Environmental Protection Azencv - National Pollutant Discharge Elimination
           System (NPDES) permits.

      *    Federal Enermv Regulatorv Commission - construction and temporary permitting of
           pipelines.

      *    U.S. Denartment of Transportation - safety standards, design, installation, inspection,
           emergency plans and procedures, operations, and maintenance in transportation of natural
           gas and hazardous liquids pipelines.

      � U.S. Coast Guard - lighting, location, and apparatus operating requirements for pipelines,
           platforms, artificial islands, fixed structures, and navigational and free-floating structures.

           The Council's input into proposed siting decisions will be through the CMP consistency
    process and through agency actions subject to the CMP. Siting of energy facilities, such as
    petrochemical plants and utilities, will be subject to the regulatory authorities for permitting of
    such facilities, including:

       *  water rights and water uses (TNRCC);
       � wastewater permits (TNRCC);
       *  underground storage tanks (TNRCC);
       *  solid and hazardous waste disposal (TNRCC);
       *  air emissions (TNRCC);
       *  structures on state-owned submerged land (GLO/SLB);
       �  siting and operation of nuclear and fossil-fuel power plants and transmission lines (DOE);
       *  floodplain construction (FEMA and rules and ordinances of local governments);
       *  electric power generation, transportation, and distribution (PUC); and
       �  facility certification for oil spill pollution prevention (GLO).

    5. Public and Private Party Particination in the Energv Facility Planning and Siting Process

           The public may attend meetings of all state agencies. If an agency's response to a
    citizen's concern is unsatisfactory, the issue may be subject to adjudicatory hearings or other

    Texas Coastal Management Program Final EIS   Part II 6-12                          August 1996

    dispute resolution processes and may, as set forth in the consistency rule, ultimately be referred
    to the Coastal Coordination Council.

           In Texas, the Open Records Act (Chapter 552 TEX. GOV. CODE ANN.) provides the
    public with ample opportunity to request information from state government. The Open Records
    Act sets very specific time frames within which an agency must respond to a request, and it
    shields from inspection only a few, very specific documents. The Open Meetings Act (Chapter
    551 TEX. GOV. CODE ANN.) requires agencies' governing boards to act in public meetings and
    provides the interested public full notice of and opportunity to comment on matters to be
    deliberated on and actions to be taken at these meetings. This information typically includes the
    type of activity to be authorized and it location. Finally, those agencies whose actions are subject
    to the Administrative Procedure Act (Chapter 2001 TEX. GOV. CODE ANN.) have adopted
    rules giving the public further notice, comment, and public hearing opportunities. For a more
    detailed explanation of these provisions, see Part II, Chapter Five, Ensuring Compliance with
    Program Policies.

           The involvement of federal, state, and local governments, the public, and regional
    agencies in the development and implementation of the CUT and in energy facility siting are
    described in Part II, Chapter Eight, Public Participation and Federal Agency Consultation.

    Texas Coastal Management Program Final EIS   Part II 6-13                         August 1996

    D. Coastal Wetlands Management

    1. Introduction

            Coastal wetlands are an integral part of estuarine ecosystems and have tremendous
    biologic and economic value. Texas wetlands serve as nursery grounds for over 95 percent of the
    recreational and commercial fish species found in the Gulf of Mexico; they provide breeding,
    nesting, and feeding grounds for more than a third of all threatened and endangered animal
    species and support many endangered plant species; and they provide permanent and seasonal
    habitat for a great variety of wildlife, including 75 percent of North America's bird species.

           Coastal wetlands also perform many chemical and physical functions. Wetlands
    temporarily retain certain pollutants such as suspended material, excess nutrients, toxic
    chemicals, and disease-causing microorganisms. Marshes can filter nitrates and phosphates from
    rivers and streams that receive wastewater effluent. Some pollutants associated with the trapped
    material in wetlands may be converted by biochemical processes to less harmful forms, may
    even remain buried, and may be taken up by the wetland plants and either recycled or transported
    from the area. Wetlands help reduce erosion by absorbing and dissipating wave energy, binding
    and stabilizing sediments, and increasing sediment deposition. Primarily because of their
    topography or position in the landscape, wetlands can reduce, capture, and retain surface-water
    runoff, thus providing storage capacity and overall protection during periods of flooding.
    Wetlands also promote groundwater recharge by diverting, slowing, and storing surface water,
    thus allowing infiltration and percolation of water into the saturated zone.

    2. Status and Trends

           Estimates of wetland acreage in the 19 coastal counties in 1979 range from 611,760 acres
    of fresh, brackish, and salt marshes (TPWD, 1988) to approximately 1.8 million acres of salt,
    brackish, fresh, forested, and scrub-shrub wetlands (Field et al., 1991). This valuable resource is
    disappearing at an alarming rate. The TPWD estimates that 35 percent of the state's coastal
    marshes were lost between 1950 and 1979 (TPWD, 1988). The total loss of marshes in the river
    deltas since the 1950s amounts to about 21,000 acres, or 29 percent of the river-delta marsh area
    existing in the mid-1I950s (White and Calnian, 1990). In the Galveston Bay system, from the
    1950s to 1989, there was a net loss of 33,400 acres, which amounts to 19 percent of the wetlands
    that existed in the 1950s (White et al., 1993). The rate of loss, however, declined over time, from
    about 1,000 acres per year between 1953 and 1979 to about 700 acres per year between 1979 and
    1989.

    3. Probable Causes of Loss and Degradation

           Wetland loss results from both natural processes and human activities. Table 2 lists the
    probable causes of loss and degradation for the entire state, and Table 3 lists the causes and their
    relative importance for the Galveston Bay system. Between the 1950s and 1989, subsidence
    (primarily from groundwater withdrawal and, in some isolated areas, oil and gas production) and
    relative sea-level rise converted 26,400 acres of emergent wetlands in the Galveston Bay system,
    or about 30 percent of the total gross loss (88,500 acres), to open water and barren flats (White et
    al., 1993). Approximately 5,700 acres of emergent wetlands in the Galveston Bay system were

    Texas Coastal Management Program Final EIS   Part 1I 6-14                        August 1996

                                                    Table 2

                     Statewide Causes of Wetland Loss and Degradation
                                          (Modified from TPWD, 1 988)

      Direct:

                     1.   Drainage for crop and timber production and mosquito control.

                     2.   Dredging and stream channelization for navigation channels, flood protection,
                          shoreline floodplain housing development, and reservoir maintenance.
                     3.  Filling for dredged spoil and other solid waste disposal, roads and highways, and
                          commercial, residential, and industrial development.

                     4.   Construction of dikes, dams, levees, and seawalls for flood control, water supply,
                          irrigation, and storm protection.

                     5.   Discharges of materials (e.g., pesticides, herbicides, and other pollutants) into
                         wetlands.

                     6.   Mining of wetland soils for peat, coal, gravel, phosphate, and other materials.

      Indirect:

                     1.   Sediment diversion by dams, deep channels, and other structures.

                     2.   Hydrologic alterations by canals, spoil banks, roads, and other structures.

                    3.   Subsidence due to extraction of groundwater, oil, gas, sulphur, and other
                         minerals.

                    4.   Erosion from boat wakes.

                    1.   Sea level rise.

                    2. Droughts.
                    3. Hurricanes and other storms.
                    4.   Erosion.

                    5.   Biotic effects (e.g., muskrat, nutria, grass carp, and goose  eat-outs").

    Texas Coastal Management Program Final EIS    Part II 6-15                                     August 1996

                                                    Table 3

                            Causes of Wetland Loss and Degradation
                                     in the Galveston Bay System
                                       (Modified from White et al., 1993)

      Direct:

                     1. Drainage for crop production and expansion of upland range land. (Major)*

                     2.   Dredging and stream channelization for navigation channels, flood protection,
                          coastal housing developments, and reservoir maintenance. (Moderate)

                     3.  Filling for dredged spoil and other solid waste disposal, roads and highways, and
                          commercial, residential, and industrial development. (Moderate)

                     4.   Construction of dikes, levees, and seawalls for flood control, water supply,
                          industrial purposes, irrigation, and storm protection. (Major)

                     5.   Discharges of materials (e.g., pesticides, herbicides, other pollutants, nutrient
                          loading from domestic sewage and agricultural runoff, and sediments from
                          dredging and filling, and agricultural and other land development) into waters and
                          wetlands. (Undetermined)
                     6.   Mining of wetland soils for sand, gravel, peat, and other materials. (Minor)

      Indirect:

                     1.   Sediment diversion by dams, deep channels, and other structures. (Undetermined)

                     2.   Hydrologic alterations by canals, spoil banks, roads, and other structures.
                          (Undetermined)

                     3.   Subsidence due to extraction of groundwater, oil, gas, sulphur, and other
                          minerals. (Major)

                    4.   Saltwater intrusion resulting from indirect threats noted above. (Undetermined)
                     5.   Erosion from boat wakes.

                    1-0.                   S N:tiin-clud:ing   -n-atURA   THisRE AT l                  i
                     1.  Subsidence (including natural rise of sea level). (Minor)

                     2.   Droughts. (Undetermined)
                    3.   Hurricanes and other storms. (Undetermined)
                    4.   Erosion. (Moderate)
                     5.  Biotic effects (e.g., muskrat, nutria, grass carp, and goose "eat-outs").
                          (Undetermined)

                              * Relative importance of causes shown in parenthesis.

    Texas Coastal Management Program Final EIS    Part II 6-16                                   August 1996

    converted to upland urban use (oil and gas facilities, residential development, etc.) between the
    1950s and 1989. During this same period, approximately 35,600 acres of fresh or palustrine
    emergent marshes in the Galveston Bay system were transformed to uplands (White et al., 1993).
    Approximately 33 percent of the gross loss in emergent wetlands is attributed to the conversion
    of marshes to upland rangeland and cropland. The percentage of loss in the Galveston Bay
    system due to agricultural development is lower than the national average, which is estimated at
    87 percent from the mid-1950s to mid-1970s, and 54 percent from the mid-1970s to mid-1980s
    (White et al., 1993).

           Subsidence is the overriding cause of wetland loss along some river delta marshes, such
    as the San Jacinto River. (White and Calnan, 1990). In the Neches River valley, a combination
    of factors, including subsidence, relative sea-level rise, fault movement, channel dredging,
    dredged material disposal along levees, and impoundment of sediments along streams, has
    probably contributed to wetland loss (White and Calnan, 1990).

    4. State-Owned Coastal Wetlands Conservation Plan and Other Wetland Management Efforts

           Approximately sixty percent of wetlands, seagrasses, and critical areas within the coastal
    zone are on public lands. With the passage of S.B. 1054 in 1991, the state adopted a goal of "no
    overall net loss" of these areas. The TPWD and GLO are developing a State-Owned Coastal
    Wetlands Conservation Plan (SOCWCP) to achieve the immediate goal of no net loss and, in the
    long term, a net gain of coastal wetlands. S.B. 1054 limits the SOCWCP to wetlands that
    underlie or lie adjacent to tidal waters and that are owned by the state.

           The SOCWCP contains both regulatory and nonregulatory components. The wetland
    management components in the SOCWCP include:

     a. Inventories

           The USFWS is using November and December 1992 and February and March 1993 color
    infrared aerial photography to update National Wetland Inventory (NWI) maps (scale 1:24,000)
    for coastal Texas. Previous inventories were conducted using 1950s, 1978/1979, and 1989
    photography. Wetlands will be delineated and classified according to Cowardin (1979) on 463
    U.S. Geological Survey 7.5-minute maps for 21 coastal counties. County atlases will be
    produced for each of the 21 counties and will include wetland values and conditions, fish and
    wildlife utilizing the wetlands, and lists of wetland plants and hydric soils. In addition, the
    USFWS is conducting a National Status and Trends study in coastal Texas. The goal of the
    study is to produce comprehensive, statistically valid acreage estimates of wetland losses and
    gains for the time period between the 1950s and the 1990s.

           The TPWD is also classifying and monitoring wetlands using satellite thematic mapper
    imagery and applying the NOAA CoastWatch Change Analysis Program protocol (Thomas and
    Ferguson, 1990). In addition, the TPWD is developing guidelines for sensitive wetlands that will
    provide the basis for regulations regarding such coastal issues as oil spill prevention and
    response, natural resource damage assessment, mitigation, and acquisition. The TPWD is using a
    wide range of data--including fisheries, waterfowl, and wetland habitats--to identify and assess
    sensitive wetlands. Both the USFWS and TPWD inventories will be used to help determine the
    status and trends of wetland resources.

    Texas Coastal Management Program Final EIS   Part II 6-17                        August 1996

     b. Restoration

           In addition to comprehensive inventories to help monitor wetland status and trends,
    inventories of coastal wetland restoration sites within watersheds are also being conducted. The
    GLO has identified sites for wetland restoration in the Dickinson Bay/Bayou watershed in the
    Houston-Galveston area and is developing restoration plans for the sites. The use of dredged
    material to restore and create wetlands in the Galveston Bay system is a key component of the
    Houston-Galveston Navigation Channels Project, which is the plan for expanding the
    commercial waterways of Galveston Bay. Also, the Galveston Bay Plan is promoting the
    development of a beneficial use program for dredged material which includes funding
    mechanisms to meet the added costs of handling and processing the material and eliminates
    nonbeneficial disposal of dredged material. The plan includes a goal of restoring or creating
    15,000 acres of wetland in the Galveston Bay area within 10 years (Galveston Bay Plan, April
    1995, p. 41).

           Wetland restoration efforts are being expanded to other coastal watersheds, and a number
    of coastal wetland restoration projects and plans are underway. For example:

       *   The State Soil and Water Conservation Board is conducting a watershed demonstration
           project in western Fort Bend County that includes interaction with private landowners in
           the development of plans for wetland conservation and restoration. The project is
           focusing on restoring "prior-converted" cropland.

       *   The TPWD is the nonfederal sponsor of a project to restore the Salt Bayou Marsh in
           Jefferson County to historical intermediate salinities. The Corps of Engineers is the
           federal project sponsor. Planning is also underway to restore wetland ecosystems within
           the lower Neches wetlands in Orange County and Mad Island wetlands in Matagorda
           County. Also, the North American Waterfowl Management Plan and the Gulf Coast
           Joint Ventures are currently underway as a cooperative effort among the TPWD and other
           public and private groups.

       *   The Bureau of Reclamation is conducting a demonstration project in the Rincon
           Bayou/Nueces River delta marshes. The project is designed to complement the ongoing
           Nueces Estuary Regional Wastewater Planning Study sponsored by the City of Corpus
           Christi, the state, and several local entities. The objective of the project is to provide
           more frequent release of fresh water and accompanying nutrients and sediment, thus
           increasing productivity in the Nueces-Corpus Christi estuary.

       *   The Galveston Bay Foundation is developing a program to restore or enhance
           approximately 15,000 feet of shoreline at several sites in the Clear Lake drainage. The
           program involves industry, government agencies, conservation groups, and hundreds of
           volunteers. By incorporating volunteers, the program additionally provides an
           educational opportunity to increase public awareness of wetland resources and their
           values.

           An important new voluntary program for wetland restoration is the Wetlands Reserve
    Program (WRP) administered by the Farm Services Agency of the U.S. Department of
    Agriculture. For fiscal year 1994, the program was funded at $66.75 million to enroll up to

    Texas Coastal Management Program Final EIS   Part II 6-18                      August 1996

               75,000 acres in 20 states, including Texas. Under the WRP, permanent easements are purchased
               from participating owners of fanned wetlands. The program provides for the restoration and
               protection of farmed wetlands that were converted to farmland before December 23, 1985;
               croplands adjacent to eligible wetlands that are deemed necessary as buffer areas to protect the
               functional values of the wetlands being restored; and riparian areas that link eligible wetlands.
               Participating WRP landowners agree to accept no more than fair market value of their land for
               agricultural use in return for a lump-sum payment and cost-share assistance for implementation
               of wetland restoration practices. Specified compatible uses are permitted on the restored acreage
               by the landowner and successors.

                c. Relative Sea-Level Rise and the Sediment Budget

                      In some areas of the coast, such as the Houston-Galveston area, relative sea-level rise has
               had a significant effect on coastal wetlands (White et al., 1993). Relative sea-level rise refers to
               a rise in sea level with respect to the surface of the land, whether it is caused by actual sea-level
               rise or land-surface subsidence. Relative sea-level rise has two components: a lesser component
               of eustatic (global) sea-level rise that is estimated to be about 1.2 min/yr, and a more significant
               component of land-surface subsidence, which varies along the Texas coast from approximately 5
               to 13 mm/yr.

                      Rates of relative sea-level rise are considerably higher than this in areas undergoing
               human-induced subsidence due to the extraction of underground fluids (groundwater and oil and
               gas), such as the Houston-Galveston and Beaumont-Port Arthur areas. Up to 3 mn (IO ft) of
               human-induced subsidence occurred in the Houston-Galveston area between 1906 and 1987
    .         ~~~(Gabrysch and Coplin, 1990). Between the 1950s and 1979, more than 1,389 acres of
               bottomland hardwoods and marshes in the lower reaches of the San Jacinto River area were
               displaced by open water (White et al., 1993). The lower reach of the San Jacinto River is near
               the heart of the subsidence bowl in the Houston-Galveston area. Through efforts of the Harris-
               Galveston Coastal Subsidence District to curtail groundwater pumping in the Houston-Galveston
               area, subsidence rates have decreased in some places from a high of 122 mm/yr (0.4 ft/yr) for the
               period of 1964 to 1973 to about 67 mm/yr (0.22 ft/yr) from 1978 to 1987. In the Beaumont-Port
               Arthur area, saltwater intrusion into fresh/intermediate marshes is a result of relative sea level
               rise. Saltwater intrusion results in tidal scouring and loss of vegetated wetlands and organic
               soils.

                      The effects of relative sea-level rise on coastal wetlands have been exacerbated by river
               basin projects such as dams and freshwater impoundments that reduce the volume of sediment
               transported to marshes. If the sediment supply is insufficient, marsh sedimentation rates may not
               keep pace with relative sea-level rise, and the marsh will eventually be replaced by open water.
               In the Trinity River area, rates of estimated relative sea-level rise have outpaced marsh
               sedimentation rates, and vegetated areas are being replaced by open water and barren flats (White
               and Calnan, 1990). Dams and impoundments can reduce flooding and prevent the overbank
               sediment deposition necessary for marsh maintenance. Reduced freshwater inflow and/or
               increased tidal exchange can also allow saltwater intrusion, which can either kill fresh and
               brackish marshes or alter plant community structure.

               Texas Coastal Management Program final EIS   Part 11 6-19                        August 1996

            Sea-level rise may not only alter the geomorphology of coastal habitats, but may also
    alter biochemical processes when saltwater submerges marshes and uplands (Zimmerman et al.,
    1991). This inundation can change the way marshes function as habitat.

           The CMP defines relative sea-level rise as an adverse effect under the program policies.
    Adverse effects on critical areas are to be avoided to the greatest extent practicable, and if they
    cannot be avoided, they are to be mitigated. Adverse effects include detrimental alterations that
    increase losses of shore areas or other coastal natural resource areas from a rise in sea level with
    respect to the surface of the land, whether caused by actual sea-level rise or land surface
    subsidence.

           The CMP contains two encouragement policies addressing relative sea-level rise and the
    sediment budget.

         * Local governments are encouraged to incorporate sea-level rise (projected for 50 years)
           into the design and the construction of new development.

         * Sediment bypassing is encouraged in the construction and retrofitting of dams on rivers
           that flow into the coastal zone, and at new and existing jetties, groins, and other structures
           that interrupt sediment transport to the coastal sand budget.

           Sediment bypassing systems involve the interception of bedload materials at or above the
    heads of reservoirs and the channeling of these materials around lakes to the river bed below the
    darns (King, 1990). A draft action plan in the Comprehensive Conservation and Management
    Plan for the Galveston Bay estuary calls for "exploring the feasibility of remobilizing sediment
    impounded behind watershed dams and transporting this material to the estuary."

     d. Freshwater Inflow

           Texas bays and estuaries provide diverse habitats with salinities ranging from fresh to
    brackish in the river deltas and near river and stream mouths to poly- or euryhialine near Gulf
    inlets. These diverse conditions favor different vegetation and organisms living in or adjacent to
    the estuaries.

           Coastal wetland communities also show well-defined salinity gradients both from north
    to south along the coast and within each estuarine system. Freshwater, intermediate, and
    brackish-water marshes are most extensive along the upper coast in the Beaumont-Port Arthur
    and Houston-Galveston areas, where freshwater inflows are typically much higher than on the
    lower coast. Salt marshes are extensive south of the Galveston Bay area. Within each estuarine
    system, freshwater and intermediate marshes and bottomnland hardwoods occupy river drainages
    and deltas, grading into brackish-water marshes near the estuary. Saltwater marshes are most
    common on the bayward side of barrier islands and peninsulas and along the mainland shores of
    narrow bays.

           In recognition of the importance of fresh water to the state, including the bay-estuary-
    lagoon system, the Texas Legislature directed the TWDB to develop a Texas Water Plan as a
    guide to the conservation and development of the state's water resources. The first Texas Water
    Plan, adopted in 1969, called for an estimated 2.5 million acre-feet of supplemental freshwater

    Texas Coastal Management Program Final EIS   Part 11 6-20                          August 1996

    inflows annually to Texas' bay-estuary-lagoon system. The TWDB regularly updates the plan to
    meet current water needs and anticipated future needs. The plan currently emphasizes water
    supply, treatment, distribution, and conservation, and the collection and treatment of wastewater.

            In preparation for the Texas Water Plan, the legislature directed the TWDB, in
    cooperation with the TNRCC, TPWD, and GLO, to collect comprehensive physical, chemical,
    and biological data on the effects of freshwater inflows upon the bay-estuary-lagoon system. The
    comprehensive studies and data resulted in a series of reports covering the state's seven major
    estuarine systems. The results included preliminary estimates of freshwater inflows needed from
    major Texas rivers to meet management alternatives for coastal ecosystems.

           The 69th Texas Legislature assigned the responsibility for water rights permitting to the
    Texas Water Commission (now part of the TNRCC) and authorized the TPWD to be a party in
    hearings on applications for permits to store, take, or divert water. The legislature directed the
    Water Commission to consider effects on the bay-estuary-lagoon system for all water rights
    permits. The legislature also directed the TWDB and TPWD to establish and maintain a
    continuous data collection and evaluation program and conduct studies and analyses to determine
    bay conditions that provide a sound ecological environment. To achieve the goal of a sound
    ecological environment in coastal bays, special conditions will be required in state permits to
    store, take, or divert water. These conditions will regulate the quantity and timing of water use
    and be designed to ensure that salinity and nutrient levels and sediment supplies are adequate
    through time to provide an environment for the maintenance of bay-estuary-lagoon wetlands and
    organisms.

           The TPWD has a statutory requirement for mitigation, and its policy covers only
    relatively large water resource development projects. The Parks and Wildlife Commission seeks
    full mitigation for fish and wildlife losses resulting from water resource development projects in
    excess of 5,000 acre-ft/yr (TEX. WATER CODE � 11.151). Mitigation measures include
    improving lands to replace hunter opportunity loss and using fishery management techniques
    (PARKS & WILD. CODE ANN. �57.141). Mitigation can include acquisition and management
    of fish and wildlife habitats or specific measures such as improvement of spawning and nursery
    habitats. In determining whether to require an applicant to mitigate adverse impacts on a habitat,
    the commission may consider any net benefit to the habitat produced by the project.

           The bay-estuary-lagoon system is a valued resource contributing to the welfare and
    economy of Texas and to the fish and wildlife that inhabit coastal wetlands and open waters.
    High-quality freshwater inflows and accompanying nutrients and sediments delivered in amounts
    and seasons similar to historical patterns are important to the maintenance of habitats and fish
    and wildlife. The CMP policies in �501.14(r), Appropriations of Water, will ensure adequate
    freshwater inflows to help maintain an ecologically sound environment in bay-estuary-lagoon
    systems.

     e. Nonnoint Pollution

           Coastal wetlands are altered by pollutants from upstream and local runoff and, in turn,
    change the quality of water flowing out of them. Wetlands are capable of assimilating and
    purging pollutants from the water, but amounts of sediment, nutrients, and pesticides from

    Texas Coastal Management Program Final EIS   Part II 6-21                           August 1996

    watersheds that overload a wetland's assimilative ability can drastically alter the biological
    makeup of a wetland (Kusler et al., 1994).

            Some discharges into coastal waters are almost immediately toxic to coastal wetlands.
    Discharges of oil, for example, can kill coastal wetlands (Webb et al. 1981); less apparent is the
    sometimes slow degradation of wetland quality due to urban or agricultural runoff of nonpoint-
    source pollutants, including sediment, nutrients, oxygen-demanding compounds, oil and grease,
    and others. Information on the cumulative effects of these pollutants on coastal wetland quality
    is limited.

           To help protect wetlands from nonpoint-source pollution, Texas has a nonpoint-source
    pollution control program that is incorporated into the CMP. The state program will be closely
    coordinated with other existing state and local water quality plans and programs.

    f. Acquisition

           A comprehensive strategy for coastal wetland acquisition is being developed. Texas can
    protect and manage coastal wetlands through acquisition, but the state's acquisition efforts have
    been limited, primarily by a lack of funds for purchase and management of the resources. State
    law requires that priorities be set for the acquisition of coastal wetlands. This plan has not yet
    been developed to focus on the most important, scarce, and vulnerable coastal wetlands. The
    Galveston Bay Plan also recognizes the need to identify and rank wetland habitats for
    acquisition. For example; the Plan has a habitat protection objective of placing 50,000 acres of
    Galveston Bay area wetlands and floodplains in public ownership over the next 20-years
    (Galveston Bay Plan, April 1995, p. 42). Texas should have a strong coastal wetlands
    acquisition program to complement federal acquisition efforts.

           Two state statutes provide authority for wetland acquisition. The Texas Waterfowl
    Stamp Act empowers the TPWD to acquire, lease, or develop waterfowl habitat in the state. The
    funds for such activities are to come from the sale of state waterfowl stamps. Since 1981, the
    TPWD has used revenues from the sale of Texas duck stamps and art prints to buy, lease, and
    develop waterfowl habitats. In FY 1992, the agency spent about $1.5 million for wetland
    acquisition (Fiscal Notes, 1993).

           The Coastal Wetland Acquisition Act (TEX. NAT. RES. CODE ANN. Chapter 33,
    Subchapter G) designates the TPWD as the "acquiring agency" for coastal wetlands. The GLO's
    role is to work with the TPWD in certifying coastal wetlands most essential to the public interest
    and assigning priorities for their acquisition. The GLO, with funding from the EPA Wetlands
    Program State Development Grants and assistance from the TPWD, is developing a Coastal
    Wetlands Priority Acquisition Plan that will: (1) create the framework, criteria, and guidance for
    identifying coastal wetlands on a regional or watershed basis for acquisition; (2) identify areas
    and/or acreages of coastal wetlands by region or watershed for acquisition; and (3) identify
    possible funding sources.

    Texas Coastal Management Program Final EIS    Part II 6-22                          August 1996

    g. Education

           Education is vital in building public support for wetlands protection. To increase public
    awareness of and appreciation for the state's wetland resources, the GLO, in cooperation with
    other state and federal agencies and private organizations, has developed a wetland outreach
    strategy as part of the SOCWCP's outreach education program. The GLO is producing public
    outreach materials on (1) wetland functions and values; (2) wetland status and trends; (3)
    regulatory methods to protect wetlands, including the SOCWCP, the CMP, and the state and
    federal regulatory process; and (4) nonregulatory methods to protect, restore, and enhance
    wetlands. In 1992, the GLO hosted wetland workshops focusing primarily on current wetland
    regulation. The GLO will hold additional public workshops on coastal wetlands with guest
    speakers from both regulatory and nonregulatory organizations. The focus of the workshops will
    be the importance of wetlands and the role of the CMP in protecting them.

           The Outreach and State Programs Section of the Wetlands Strategies and State Programs
    Branch in EPA's Wetlands Division initiated celebration of American Wetlands Month each
    May to increase the public's awareness of wetlands and to encourage people to become more
    involved in wetland protection efforts nationally as well as locally. May has been officially
    proclaimed Wetlands Month in Texas since 1992. The annual May issue of the Texas CMP
    Newsletter has been dedicated to coastal wetlands.

           The TPWD and GLO have produced a brochure, "Boating and Seagrasses," containing
    information about the functions, values, status, and trends of seagrasses; boating techniques to
    protect seagrasses; general boating safety practices; and seagrass species, with drawings to help
    with identification. This educational brochure is intended to help protect seagrasses from
    damage from boaters operating in shallow bay-estuary-lagoon systems.

     h. Local Government Particination

           Local governments play a critical role in wetlands protection. Most of the decisions
    affecting development are made at the local level, and local governments are often best equipped
    to address local wetland resource protection concerns. Several local governments along the
    Texas coast are pursuing the development of multi-objective wetland management plans. These
    local governments are seeking guidance to ensure that their plans are consistent with the state's
    wetland protection initiatives. In response to this need, the GLO secured a grant from the EPA
    Wetlands Program for FY '95 to develop a model coastal wetlands protection plan for local
    governments.

           The Model Coastal Wetlands Protection Plan is intended for the leaders and citizens of
    coastal communities who are concerned about balancing development with wetland resource
    protection. The purpose of the plan is to familiarize local leaders with existing wetland
    protection mechanisms, offer new and innovative approaches for local wetland protection, and
    provide guidance for selecting and implementing management strategies which not only meet the
    community's objectives for wetland protection, but are consistent with the state's no net loss goal.

           Incentives for wetland protection by private landowners are also needed, since many
    wetlands on the Texas coast are privately owned. A program of public-private partnerships will

    Texas Coastal Management Program Final EIS   PartII 6-23                          August 1996

    facilitate conservation by private landowners. The state must identify the needs of the
    landowners, inform them of existing incentive programs at the local, state, and federal levels, and
    impress upon them the value of preserving and restoring wetland habitats. This program can be a
    critical component of any program developed to slow or stop the loss of inland wetlands.

     i. Coordination of Enforceable State Policies and Authorities

           State agencies having responsibilities for coastal wetlands include the TNRCC, TPWD,
    RRC, and GLO. Their enforceable policies and authorities are described in Chapter Four.
    Because the primary wetlands management program is that administered by the Corps of
    Engineers, most interagency coordination takes place through the Corps permit issuance process.
    Interagency coordination in the Corps process begins with the bimonthly joint evaluation
    meetings at the Corps' District Office in Galveston, Texas. The evaluation meetings are an
    opportunity for both state and federal agency staff to evaluate and comment on projects affecting
    wetlands in the Corps' Galveston District. The agencies may schedule on-site field inspections
    with applicants, and, if necessary, determine mitigation requirements.

           The Corps, EPA, and U.S. Coast Guard have elected to participate with the TNRCC in a
    joint public notice procedure to inform the public of both the request for the federal permit and
    the concurrent review by the TNRCC for the purpose of providing �401 water-quality
    certification. The RRC issues �401 water quality certification for �404 permits related to oil and
    gas activities and has negotiated the form of a joint notice with the EPA and the Corps. These
    processes are described in more detail in Chapter Four.

           The TPWD has primary responsibility for protecting the state's fish and wildlife
    resources. It comments on � 10/404 permit applications submitted to the Corps and may provide
    comments to the TNRCC for use in evaluating �401 water-quality certification requests. If the
    TPWD staff determines that a wetland area has unique aesthetic or ecological qualities, dredged
    material disposal techniques that would adversely affect the area will be opposed and alternate
    sites recommended. Where the TPWVD staff determines that detrimental environmental effects
    can be minimized, the implementation of disposal techniques that result in minimization will be
    recommended. Ecological need is a major determining factor in decision-making.

           The GLO is the state agency responsible for the management of state-owned lands. The
    agency is proprietary, not regulatory. The GLO's constitutional and statutory missions are both
    to conserve the natural resources on state lands and to generate revenue by collecting fees for the
    use of that land lands. State-owned lands extend from mean high tide in bays and lagoons to
    three marine leagues (10.36 miles) offshore in the Gulf of Mexico. Activities covered by state
    easements or leases include floating piers, wharves, docks, jetties, groins, breakwaters, artificial
    reefs, fences, posts, retaining walls, levees, ramps, cabins, shelters, landfills, excavations, canals,
    channels, and roads.

           The GLO routinely participates in the bimonthly Corps joint-agency evaluation meetings
    to identify proposed activities that may involve the use of state-owned lands. The GLO obtains
    copies of the Corps permit applications that appear to include state-owned land and submits them
    to the GLO surveying division for a formal determination of state ownership. If it is determined
    that state-owned lands are involved, the GLO sends the Corps permit applicant an "Application

    Texas Coastal Management Program Fintal EIS   Part 1I 6-24                         August 1996

               Packet." This informs the applicant that a state instrument is required for the use of state-owned
               land in connection with the proposed project. The applicant sends the completed application
                 wihthe requested information to the appropriate GLO field office, which reviews the application
    is f~~or accuracy and completeness and notifies the applicant of any additional requirements. GLO
               coastal field inspectors conduct an on-site investigation of the proposed project, either
               independently or, more commonly, in conjunction with the other state and federal agencies that
               take part in the Corps process.

                      The field report is basically an "environmental assessment" of the proposed project that
               describes any impacts the project could have on state-owned lands. The report provides
               recommendations on fee assessments, mitigation, and/or project modification. Any project
               alterations, relocation, or mitigation requirements requested are thoroughly coordinated with the
               applicant and other state and federal agencies to ensure consistency.

                      An Interagency Quality Management Board (QMB) is currently coordinating an effort by
               the Corps' Galveston District to improve the Corps permitting processes. The QMB is reviewing
               the current regulatory system, including the agency input/decision-making process, regulatory
               overlaps and conflicts, the applicant orientation process, the field review process, agency
               commitment of resources, compliance monitoring and enforcement, endangered species
               monitoring, and CMIP consistency. The goal of the QMB is to assure resource protection and
               public service by improving the effectiveness, efficiency, and predictability of the Corps
               regulatory processes and associated federal/state processes within the Galveston District.

                j. The TCMP: Improvin~y Coordination Through Uniform Policies and Consistency Review
                   Process_

                      Activities affecting coastal wetlands are regulated by overlapping and fragmented
               policies, goals, and authorities of federal and state agencies, which can reduce the effectiveness
               of wetland management. The purpose of the CMP is to create a higher level of coordination
               among the component programs. That coordination level will be achieved through the state and
               federal consistency review processes and oversight of the program by the Council.

                      The state consistency review process (Part 11, Chapter Five, Ensuring Compliance with
               Program Policies) will provide a formalized method for reviewing al proposed state agency and
               subdivision actions that may adversely affect coastal wetlands and for determining if those
              proposed actions are consistent with the goals and policies of the CMP (Part H1, Chapter Four,
               Program Goals and Policies). The federal consistency review process (Part II, Chapter Five,
               Ensuring Compliance with Program Polcies) will provide an additional level of state/federal
               coordination for proposed federal agency decisions, such as planning federal development
              projects, issuing federal licenses or permits such as the Corps � 1 0/404 permit, granting federal
              financial assistance to local governments, and any approving plans for exploration or
              development of, or production from, any area leased under the Outer Continental Shelf Lands
              Act.

              Texas Coastal Management Progrmn Final EIS   Part 11 6-25                          August 1996

      k. Lone-Rance Navioational Dredeina and Dredeed-Material Disnosal Plan

           Dredging and dredged-material disposal can be detrimental to coastal wetlands and fish
    and wildlife. In the Galveston Bay system, conversion of emergent coastal wetlands occurred in
    several areas in conjunction with dredging and filling to create navigation channels and upland
    sites for residential development (White et al., 1993). White et al. (1993) reported that wetland
    losses due to dredging of channels and wetland filling in the Virginia Point USGS quadrangle
    totaled approximately 2,000 acres between the 1950s and 1989.

           The SOCWCP will include a comprehensive, long-term management strategy for
    dredging and disposal and placement of dredged materials that is environmentally, technically,
    and economically sound. This plan will be developed through consistency review of federal
    maintenance dredging of commercial waterways.

    Texas Coastal Management Program Final EIS   Part II 6-26                         August 1996

               E. Areas for Preservation or Restoration

                       Section 923.22 of the U.S. Department of Commerce regulations on Coastal Zone
    is ~~Management require coastal management programs to include procedures whereby specific areas
               may be designated for the purpose of preserving or restoring them for their conservation,
               recreational, ecological, historical or aesthetic values.

                       In Texas, there are procedures for designating areas for preservation or restoration
               (APRs) as wildlife management areas, scientific areas, state parks, state recreation areas, state
               historical areas (i.e., state historical parks, state historical sites, and state historic structures), state
               natural areas, state fishing piers, state natural landmarks, critical erosion areas, coastal wetlands,
               and preserves, educational and scientific areas, and wildlife refuges on coastal public lands.

               1. Texas Parks & Wildlife Deinartment

                       The Texas Parks and Wildlife Department (TPWD) has the greatest authority for
               designating areas for preservation or restoration. The TPW;D's designations are intended to
               provide areas for outdoor recreation, natural area preservation, and historic preservation.

                 a. State Parks

                       State parks are defined in 31 TAC �59.63 as spacious areas of outstanding natural or
               scenic character, often containing historical, archeological, ecological or geological values,
               selectively developed to provide opportunities for compatible types of resource-oriented
               recreation. State parks generally include a minimum of 1,000 acres. Before approving a park
                   matrdevelopment plan, the T`PW1D is required to hold a public hearing to receive comments on
               the plan in an area near the location of the new park site.

                 b. State Recreation Areas

                       State Recreation Areas are areas in a relatively natural state having the best available
               scenic and recreational qualities. These areas are usually associated with water resources and
               developed to provide a variety of resource-oriented, unstructured, outdoor recreation
               opportunities serving regional or statewide needs. A State Recreation Area normally includes a
               minimum of 50 acres of land within its boundaries, but may include less in the case of an
               extraordinary recreation resource of statewide significance. State Recreation Areas are selected
               on a priority basis to best meet the outdoor recreation demands of the state in conformity with the
               Texas Outdoor Recreation Plan.

                c. State Natural Areas

                      State Natural Areas are areas retaining to a major degree their unique or natural character
               established primarily for the perpetual preservation of outstanding ecological, biological,
               geological, or scenic features of statewide significance, which may be used in a manner
               consistent with their continued preservation for the public purposes of scientific research,
               education, aesthetic enjoyment, and dispersed primitive recreation. State Natural Areas are
               selected on a priority basis determined by statewide significance, natural condition, and the
               degree to which the resource is endangered by misuse or outside encroachment. Unique areas

               Texas Coastal Management Program Final EIS    Part 11 6-27                           August 1996

    currently unrepresented in the public domain receive a higher priority than areas that duplicate
    the primary significance of a site presently preserved in public ownership.

      d. State Fishing Piers

            State Fishing Piers are established along the Texas Gulf Coast and in Texas bays to
    provide regional recreational fishing opportunities. Usually, these structures lack sufficient land
    base to support extensive recreational development. State Fishing Piers are often selected to take
    advantage of existing structures, such as abandoned causeways and are established as
    opportunities arise.

      e. State Natural Landmarks

            State Natural Landmarks are features of outstanding scenic, ecological, geological, or
    physiographical significance which possess physical integrity and have a recognized value in
    illustrating or interpreting the natural heritage of the state. State Natural Landmarks may be
    publicly or privately owned, but reasonable assurance of future protection of the feature must be
    obtained. Natural landmarks will be acquired by TPWI) only when they may be operated as a
    subunit of an existing state park.

      f. Wildlife Management Areas

            TPWI) is authorized to acquire, develop, maintain, and operate wildlife management
    areas. The Department may manage, along sound biological lines, wildlife and fish found on any
    land the department has or may acquire as a wildlife management area. The department is
    allowed to regulate hunting, fishing, and recreational activities in wildlife management areas.

      g. Scientific Areas

            TPWD is authorized to promote and establish a state system of scientific areas for the
    purposes of education, scientific research, and preservation of flora and fauna of scientific or
    educational value.

    2. Texas Historical Commission

           The Texas Historical Commission has responsibility for locating, protecting, and
    preserving al sites, objects, buildings, pre-twentieth century shipwrecks, and locations of
    historical, archeological, educational, or scientific interest in any way related to the inhabitants,
    pre-history, history, natural history, government, or culture, in, on, or under any of the land in the
    State of Texas, including the tidelands, submerged land, and the bed of the sea within the
    jurisdiction of the State of Texas.

     a. State Historical Areas

           State historical areas are al parks, sites, and structures established for the preservation
    and interpretation of prehistoric and historic resources of particular statewide or national
    significance. State Historical Areas include state historical parks, state historic sites, and state
    historic structures.

    Texas Coastal Management Program Final EIS    Part 11 6-28                            August 1996

                   �   State historical parks are areas established primarily to preserve and interpret sites,
                       events, persons or objects and which are of sufficient size to completely include the
      Is ~~~~~historic features yet permit development of substantial recreational facilities.

                   �   State historic sites are areas, usually limited in size, established to preserve and interpret
                       sites, events, persons, or objects.

                   *   State historic structures are areas established to preserve structures embodying the
                       distinguishing characteristics of an architectural type, which is inherently valuable for the
                       study of a period, style, or method of construction.

                       To be considered for acquisition, historic sites and structures must evidence a significant
               association with the broad history of the state. TPWT) will recommend for acquisition historic
               sites which will complement a balanced interpretation of the heritage of Texas. State Historical
               Areas are organized chronologically, such as Paleo-Indian Texas (prior to 7000 B.C.), Early
               Exploration and Colonization (1528-1800), Victorian Texas (1875-1901) and thematically (e.g.,
               architecture, arts, ethnic culture, and political affairs).

                b. State Archeoloeical Landmarks

                       Sunken or abandoned pre-twentieth century ships and wrecks of the sea, and any part or
               the contents of them, and all treasure imbedded in the earth, located in, on, or under the surface
               of land belonging to the State of Texas, including its tidelands, submerged land, and the beds of
               its rivers and the Gulf of Mexico within state jurisdiction are declared by state law to be State
    O         ~~~Archeological Landmarks and are eligible for designation.

                       Sites, objects, buildings, artifacts, implements, and locations of historical, archeological,
               scientific, or educational interest, as well as archeological sites of every character that are located
               in, on, or under the surface of any lands belonging to the state or to any county, city, or political
               subdivision of the state are State Archeological Landmarks and are eligible for designation. To
               be designated a State Archeological Landmark, a structure or building must be listed on the
               National Register of Historic Places.

               3. General Land Office and Texas Parks and Wildlife Denartnment

                      The General Land Office and the Texas Parks and Wildlife Department share a role in
               two initiatives to designate areas for preservation and restoration. Under �33.105, TEX. NAT.
               RES. CODE ANN., the state-owned submerged lands underlying the bays and estuaries of the
               coastal zone, known as coastal public land, may be leased to TPWD for estuarine preserves.
               Chapter 14, TEX. PARKS & WILD. CODE ANN., directs the GLO and TPWD to develop the
               State-Owned Wetland Conservation Plan.

                a. Coastal Preserves

                      The GLO has entered into a Memorandum of Agreement (MOA) with the TPWD for the
               creation and management of a coastal preserve system. The coastal preserve system protects
               unique coastal areas and fragile biological communities, including important colonial bird

               Texas Coastal Management Program Final EIS    Part II 6-29                           August 1996

    nesting sites. The MOA allows the GLO and TPWD to hold public meetings near suggested
    preserve sites for open discussion of coastal preserve goals and management activities and to
    receive public commient. The informnation acquired at such meetings is synthesized, and
    proposed sites and management activities are presented to the School Land Board and Parks and
    Wildlife Commission for their consideration as coastal preserve leases.

     b. Coastal Wetlands

           The State-Owned Wetland Conservation Plan calls for the development of a plan to
    inventory sites for potential compensatory mitigation, enhancement, restoration, and acquisition
    to meet the goal of "no net loss" of state-owned coastal wetlands. The plan will include
    processes and criteria for designating these sites. The Coastal Wetlands Acquisition Act
    provides that the GLO will certify coastal wetlands "most essential to the public interest" and
    assign priorities for their acquisition. The act directs TPWD, the designated acquiring agency, to
    accept grants, gifts, or devises of land; to acquire fee and lesser interests in coastal wetlands by
    purchase or condemnation; and to manage acquired interests "in a manner that will preserve and
    protect the productivity and integrity of the land as coastal wetland."

           The Coastal Wetlands Acquisition Plan establishes a Coastal Wetland Rating system for
    Acquisition that includes consideration of the following criteria: vegetation communities;
    overall quality; threat of destruction/degradation; proximity/contiguity; functions and values of
    wildlife/aquatic habitat; public use; hunting/fishing potential; floodflow/stormwater alteration;
    water quality protection; and shoreline protection.

           The GLO is also developing a framework for identifying coastal wetlands suitable for
    restoration activities. Restoration is defined by EPA as the "process of returning a significantly
    disturbed or totally altered site to its previously existing functional condition by some action of
    man (e.g., prior converted cropland or fanned wetlands reestablished as bottomland hardwood
    forested wetlands)." Identifying such coastal wetlands will involve the use of GIS and status and
    trends analysis.

    4. Texas General Land Office

           The GLO manages coastal public lands. The GLO is also the lead state agency for
    responding to coastal erosion.

     a. Refu~yes and Scientific Areas

           Section 33.105, TEX. NAT. RES. CODE ANN., authorizes coastal public lands to be
    leased to nonprofit environmental organizations for wildlife refuges, or to scientific or
    educational organizations or institutions for conducting scientific research.

     b. Critical Erosion Areas

           The GLO is mandated by law to develop a coastwide erosion response plan. As part of
    the plan, the GLO is proposing the designation of Critical Erosion Areas. The GLO's rules for
    management of the beach/dune system (31 TAC �� 15.l-15. 10) define "eroding areas" as "a
    portion of the shoreline which is experiencing a historical erosion rate of greater than two ft/yr

    Texas Coastal Management Program Final EIS    Part 11 6-30                           August 1996

    based on published data of the University of Texas at Austin, Bureau of Economic Geology."
    An eroding area is proposed to be considered critical when the rate of erosion exceeds two ft/yr
    and poses a threat to:

       � public infrastructure or areas of national importance,
       * public beach access and recreation,
       *   traffic safety,
       � private property, or
       � habitat.

           To rank critical erosion areas in a reasonably quantifiable manner, the following factors
    and ratings are proposed to be considered (HIGH = 3 pts., MED = 2 pts., LOW = 1 pt.). Areas
    with higher point totals should receive higher priority for funding.

       1. Evacuation routes and public safety

           HIGH -         Evacuation routes are closed due to shoreline erosion, and beach travel is
                          closed.
           MED  -         Evacuation routes are open, or reasonably safe beach travel is threatened.
           LOW  -         Evacuation routes are open, and beach travel is open.

       2. Public access and recreation

           HIGH -         Public access and use is halted due to erosion.
           MED  -         Public access and use is threatened.
           LOW  -         Public access and use is not affected.

       3. Federal/state/local economic impact

           HIGH -         Erosion is the main reason for a decrease in annual tourist dollars and in
                          the tax base.
           MED  -         Erosion is partly the reason for decreased revenues.
           LOW  -         Erosion is not a reason for decreased revenues.

       4. Public/private property value

           HIGH -         The total value of threatened property exceeds $100,000, or habitable
                          structures are in imminent danger of collapse due to erosion.
           MED  -        The total value of threatened property is equal to or less than $100,000,
                          and/or structures are located within the eroding area boundary.
           LOW  -         Property values have not decreased, and/or the structures are located
                          landward of the eroding area boundary.

       5. Existing shoreline protection (restored, natural, vs. armored)
           HIGH -         The shoreline is in its natural state, and no shore protection program has
                          been implemented.
           MED  -        The shoreline has been restored by beach nourishment.
           LOW  -        The shoreline is armored.

    Texas Coastal Management Program Final EIS   Part II 6-31                           August 1996

       6. Historical erosion rate

            HIGH -         Greater than five ft/yr.
            MED  -         Greater than two feet and less than five ft/yr.
            LOW  -         Stable or accreting.

       7. Loss of wildlife areas/endangered species

           HIGH -         Wildlife and endangered species habitat is being lost due to erosion.
           MED  -         Wildlife and endangered species habitat is imminently threatened.
           LOW  -         No habitat is threatened.

       8. Human impacts

           HIGH -         Erosion is mainly attributed to human impacts (for example, coastal
                          structures or shipping).
           MED  -         Erosion is attributed to a mixture of human impacts and natural processes.
           LOW  -         Erosion is mainly attributed to natural processes.

           Once the critical erosion areas have been ranked according to their criticality, the next
    step is to consider the type of erosion response project that may be planned. Should a
    competitive funding source become available at some point in the future, proposed erosion
    response projects should be ranked on a benefit-to-cost ratio on the basis of the following
    benefits:

           Preserves coastal sand dunes
           Provides storm protection
           Protects navigation
           Provides recreation
           Provides potential tourism income
           Protects the tax base
           Benefits downdrift shorelines

    Texas Coastal Management Program Final EIS    Part II 6-32                            August 1996

    F. Plan Coordination

           Section 923.56 of the NOAA program approval regulations requires the state to
    coordinate the contents of its coastal management program with local, areawide, and interstate
    plans. The purpose of the coordination requirement is to identify any "conflicts with those plans
    of a regulatory nature" and the means to resolve those conflicts.

           The regulations require the state to identify the plans and entities that will be the subject
    of this coordination. The first list below identifies known plans and the entities the GLO has
    contacted concerning coordination with the CMP. The second list identifies entities whose
    jurisdiction is regional which are included in CMP coordination efforts.

    1. Identified Plans

           The following Plans were identified for cooridnation:

       a.  Waste treatment facility or management plans under ��201 and 208 of the Clean Water
           Act* - TNRCC

       b.  Local floodplain management plans under the National Flood Insurance Program* -
           FEMA

       c.  Regional and interstate highway plans* - TxDOT

       d.  Fishery management plans under the Fisheries Conservation and Management Act* -
           TPWD and the Gulf of Mexico Fishery Management Council

       e. National Estuary Program CCMPs - TNRCC

       f.  Regional solid waste management plans - TNRCC

       g.  Texas Outdoor Recreation Plan - TPWD

       h.  Texas Water Plan/Trans-Texas Water Plan - TNRCC/TWDB

       i.  Local government beach access/dune protection plans - GLO/AG

      j.  Clean Air Act State Implementation Plans (SIPs) - TNRCC

       k.  Plans under �319 of the Clean Water Act - TNRCC, TSSWCB

       1.  Outer Continental Shelf Development Plans -- Department of the Interior, Minerals
           Management Service

           Cited in NOAA regulations as a minimum requirement.

    Texas Coastal Management Program Final EIS   Part II 6-33                        August 1996

    2. Other Aaencies Contacted

      a.   Harris-Galveston Coastal Subsidence District

      b.   Gulf Coast Waste Disposal Authority

      C.   Harris County Flood Control District

      d.   All regional councils and councils of government in the coastal zone.

           For the most part, coordination between the CUT and local, areawide, and interstate plans
    has been accomplished through the interagency and intergovernmental groups and processes
    created for development of the CMP. Most of the entities identified above were represented on
    the local government focus group, the Federal Agency Task Force, or the State Agency Task
    Force. Therefore, discussion of any conflicts between the CMP and local, areawide, or interstate
    plans has occurred during discussions of the CUTP consistency process and the CMP goals and
    policies in meetings of those groups. There are no known conflicts between these plans and the
    CMP which have not been resolved.

    Texas Coastal Management Program Final EIS   Part 11 6-34                         August 1996

                                         CHAPTER SEVEN.
           CONSIDERATION OF THE NATIONAL INTEREST AND ACTIVITIES OF
                                       REGIONAL BENEFIT

    A. Consideration of the National Interest

           Section 306(d)(8) of the CZMA and 15 CFR �923.52 of the coastal zone management
    development and approval regulations (Federal Register, Vol. 44, No. 61, March 28, 1979)
    require that states give adequate consideration to the national interest in planning for and
    managing the coastal zone, including the siting of facilities which are of greater than local
    significance. Section 307(b) of the CZMA requires that the views of federal agencies principally
    affected by a state's coastal management program be adequately considered.

           These requirements establish a reciprocal state-federal relationship in which the state, by
    providing relevant federal agencies with the opportunity for fuill participation and by giving full
    consideration to their interests in the Texas coast during program development (see Part II,
    Chapter Eight, Public Participation and Federal Agency Consultation), can administer the federal
    consistency provisions of � �307(c) and (d) of the CZMA once the TCMvP is approved (see Part
    II, Chapter Five, Ensuring Compliance with Program Policies). In order to meet these
    requirements, the TCMP must:

        * describe the national interest in the planning for and siting of facilities considered during
           program development;

      0    identify the sources relied upon for a description of the national interest;

      *    identify how and where the consideration of the national interest is reflected in the
           TCMP; and

      9    describe the process for continued consideration of the national interest in the plnin
           for and siting of facilities during program implementation.

           Recognizing the distinct and irreplaceable nature of the nation's coast, the United States
    Congress found in Section 302 of the CZMA:

         *There is a national interest in the effective management, beneficial use, protection, and
           development of the coastal zone.

         * The coastal zone is rich in a variety of natural, commercial, recreational, ecological,
           industrial, and aesthetic resources of immediate and potential value to the present and
           future well-being of the nation.

           Thus, the primary focus for the consideration of the national interest under the federal
    Coastal Zone Management Program is the balance between providing for facilities and activities
    which are in the national interest and protecting coastal resources, which are also in the national
    interest.

    Texas Coastal Management Program Final EIS    Part 1I 7-1                           August 1996

    1. Identification of Facilities of National Interest

           The facilities of national interest were identified by reviewing federal and state laws and
    regulations, federal agency policy statements and strategic goals, and comments from the TCMP
    Federal Agency Task Force (FATF), the TCMP State Agency Task Force, and TCMP focus
    groups. In addition, statements of national interest were solicited from the heads of federal
    agencies, as required by 15 CFR �923.51(d)(3). A summary of the statements received is
    provided in this chapter. In addition to certain facilities of national interest, various coastal
    natural resources were identified by federal agencies or in federal laws as being of national
    interest.

           Therefore, the following coastal facilities, activities, and resources are considered by
    Texas to be of national interest:

               *  National defense and aerospace facilities and activities
               *  Energy exploration, production, and transmission facilities and associated
                   activities
               *  Transportation facilities and activities
               *  Water resources development facilities and activities
               *  Water, air, and land pollution control facilities and activities
               *  Natural and technological hazard control activities
               *  Recreational facilities and activities
               *  Coastal natural resources
                   - wetlands
                   - fish and wildlife species and habitats
                   - threatened and endangered species and habitats
                   - cultural, historical, and archeological areas
                   - natural hazard areas
                   - barrier islands

    2. Manaaement of Facilities of National Interest

           In accordance with the TCMP rules, any conflict between national interests in the coastal
    zone will be resolved through the TCMP policies and through the rules and regulations of the
    agencies responsible for implementing the TCMP policies for specific activities or resources. In
    addition, the federal consistency review process includes procedures for mediation of conflicts
    between competing national interests.

           The national interest will be considered during program implementation through the
    authorities of the state agencies and the oversight authority of the Council. The TCMP policy for
    consideration of the national interest requires that state agencies and political subdivisions
    include such consideration when undertaking or authorizing an activity that may adversely affect
    CNRAs (see 31 TAC �501.13(4)). Agencies, in reviewing applications, will consider the
    national interest as reflected in the regulations and policies. Agencies will also consider
    comments concerning the national interest from the public and the appropriate federal agencies
    when making a decision on a permit application.

    Texas Coastal Management Program Final EIS    Part 11 7-2                           August 1996

    3. How the National Interest Is Addressed bv the TCMP

      a. Defense and Aerospace Facilities and Activities

           Many of the goals and policies of the TCMP apply to national defense and aerospace
    facilities and activities if they are not on federal land (excluded from the program) or if they are
    on federal land and adversely affect CNRAs. The TCMP recognizes that national security
    requirements and capabilities may, in the future, require new or expanded defense facilities. The
    TCMP will not seek to question the national security justification, but will strive to ensure that
    facilities and activities are consistent with the TCMP goals and policies without impairing the
    mission of national security. When necessary, federal consistency mediation procedures will be
    sought in accordance with 15 CFR �923.54.

           TCMP policies found in 31 TAC �501.14 (relating to Policies for Specific Activities and
    Coastal Natural Resources) which may address national defense and aerospace facilities are those
    for: (1) construction and operation of solid waste treatment, storage, and disposal facilities; (2)
    development in critical areas; (3) construction of waterfront facilities and other structures on
    submerged lands; (4) construction in the beach/dune system; (4) development in special hazard
    areas; (5) development on coastal barriers; (6) alteration of coastal historic areas; (7)
    transportation projects; and (8) dredging and dredged material disposal and placement.

      b. Enerev Exnloration and Production and Transmission Facilities and Activities

           The energy facilities and activities considered to be in the national interest are those
    defined in 15 CFR �923.52(c) of the CZMA regulations. They include electric generating
    facilities; oil sand gas facilities, pipelines, and transmission facilities; gasification plants;
    petroleum refineries and associated facilities; petroleum transfer facilities, including deepwater
    ports; and nuclear fuel processing facilities. TCMP policies found in 31 TAC �501.14 (relating
    to Policies for Specific Activities and Coastal Natural Resources) that may address energy
    exploration, production, and transmission activities include those for: (1) construction of electric
    generating and transmission facilities; (2) construction, operation, and maintenance of oil and gas
    exploration and production facilities; (3) discharge of wastewater and disposal of waste from oil
    and gas exploration and production activities; (4) construction and operation of solid waste
    treatment, storage, and disposal facilities; (5) oil spill prevention, response, and remediation; (6)
    discharge of municipal and industrial wastewater to coastal waters; (7) development in critical
    areas; (8) construction of waterfront facilities and other structures on submerged lands; (9)
    construction in the beach/dune system; (10) development in special hazard areas; (11)
    development on coastal barriers; (12) development in coastal parks; (13) alteration of coastal
    historic areas; (14) transportation projects; (15) appropriations of water; and (16) dredging and
    dredged material disposal and placement.

           In addition, the Energy Facility Siting Process (Part II, Chapter Six) provides a
    comprehensive discussion of the regulatory authority, policies, and planning process for facilities
    and activities associated with energy production and transmission.

    Texas Coastal Management Program Final EIS    Part II 7-3                             August 1996

    c. Transnortation Facilities and Activities

            Transportation has been identified as in the national interest for purposes of national
    defense, economic development, and recreation. Transportation facilities and activities of
    national interest include interstate highways, railroads, airports, navigation channels (particularly
    the Gulf Intracoastal Waterway), bridges, ports (including deepwater ports), commercial
    shipping, and recreational boating. TCMP policies found in 31 TAC �501.14 (relating to
    Policies for Specific Activities and Coastal Natural Resources) that may address transportation
    facilities and activities are those for: (1) prevention, response, and remediation of oil spills; (2)
    nonpoint-source water pollution; (3) development in critical areas; (4) construction of waterfront
    facilities and other structures on submerged lands; (5) construction in the beach/dune system; (6)
    development in special hazard areas; (7) development on coastal barriers; (8) development in
    coastal parks; (9) alteration of coastal historic areas; (10) transportation projects; and (11)
    dredging and dredged material disposal and placement.

     d. Water Resources Development Facilities and Activities

            Water resources development facilities and activities identified to be of national interest
    include reservoirs and dams, dikes, levees, and flood and erosion control structures. The
    following policies, found in 31 TAC �501.14 (relating to Policies for Specific Activities and
    Coastal Natural Resources), may address water resources development activities which are in the
    national interest: (1) development in critical areas; (2) construction of waterfront facilities and
    other structures on submerged lands; (3) development in coastal hazard areas; (4) development
    on coastal barriers; (5) alteration of coastal historic areas; (6) appropriations of water; (7) levee
    and flood control projects; (8) dredging and dredged material disposal and placement; and (9)
    nonpoint-source water pollution.

     e. Water. Air. and Land Pollution Control Facilities and Activities

           Water, air, and land pollution control is a key element of the TCMP and may be
    addressed in the following TCMP policies, found in 31 TAC �501.14 (relating to Policies for
    Specific Activities and Coastal Natural Resources): (1) construction of electric generating and
    transmission facilities; (2) construction, operation, and maintenance of oil and gas exploration
    and production facilities; (3) discharge of wastewater and disposal of waste from oil and gas
    exploration and production activities; (4) construction and operation of solid waste treatment,
    storage, and disposal facilities; (5) prevention, response, and remediation of oil spills; (6)
    discharge of municipal and industrial wastewater to coastal waters; (7) nonpoint-source water
    pollution; (8) development in critical areas; (9) construction of waterfront facilities and other
    structures on submerged lands; (10) development on coastal barriers; (11) transportation projects;
    (12) emission of air pollutants; (13) appropriations of water; and (14) dredging and dredged
    material disposal and placement.

     f. Manaaement of Natural and Technological Hazards

           The management of natural and technological hazards was identified by several federal
    agencies as being of national interest. In addition, the need to manage coastal hazards under the
    TCMP is given emphasis through the designation of special hazard areas, critical dune areas,

    Texas Coastal Management Program Final EIS    Part II 7-4                            August 1996

    critical erosion areas, coastal barriers, Gulf beaches, and coastal shore areas as CNRAs. TCMP
    policies found in 31 TAC �501.14 (relating to Policies for Specific Activities and Coastal
    Natural Resources) that may be relevant to this issue of national interest include: (1) construction
    of electric generating and transmission facilities; (2) construction, operation, and maintenance of
    oil and gas exploration and production facilities; (3) discharge of wastewater and disposal of
    waste from oil and gas exploration and production activities; (4) construction and operation of
    solid waste treatment, storage, and disposal facilities; (5) prevention, response, and remediation
    of oil spills; (6) discharge of municipal and industrial wastewater to coastal waters; (7)
    development in critical areas; (8) construction of waterfront facilities and other structures on
    submerged lands; (9) construction in the beach/dune system; (10) development in special hazard
    areas; (11) development on coastal barriers; (12) transportation projects; and (13) dredging and
    dredged material disposal and placement.

     g. Recreational Facilities and Activities

           In addition to specific TCMP policies that promote and protect recreational opportunities
    on the coast, recreational areas are given special emphasis through the designation of the
    following CNRAs: Gulf beaches; coastal historic areas; coastal parks; coastal wetlands; oyster
    reefs; hard substrate reefs; submerged lands; submerged aquatic vegetation; tidal sand and mud
    flats; waters of the open Gulf of Mexico; and waters under tidal influence. TCMP policies found
    in 31 TAC �501.14 (relating to Policies for Specific Activities and Coastal Natural Resources)
    that may address the protection or promotion of recreational opportunities include: (1)
    construction of electric generating and transmission facilities; (2) construction, operation, and
    maintenance of oil and gas exploration and production facilities; (3) discharge of wastewater and
    disposal of waste from oil and gas exploration and production activities; (4) construction and
    operation of solid waste treatment, storage, and disposal facilities; (5) prevention, response, and
    remediation of oil spills; (6) discharge of municipal and industrial wastewater to coastal waters;
    (7) development in critical areas; (8) construction of waterfront facilities and other structures on
    submerged lands; (9) construction in the beach/dune system; (11) development on coastal
    barriers; (12) development in coastal parks; ( 13) alteration of coastal historic areas; (14)
    transportation projects; (15) appropriations of water; and (16) dredging and dredged material
    disposal and placement.

     h. Coastal Natural Resources

           Federal agencies identified wetlands; fish and wildlife species and their habitats;
    threatened and endangered species and their habitats; cultural, historical, and archaeological
    sites; coastal natural hazard areas; and barrier islands as resources of national interest. Most of
    these resources are defined as CNRAS and, as such, are afforded a more refined management
    status under the TCMP.

           Living resources, except for oyster reefs, are not expressly listed as CNRAs; however, the
    important habitats that support living resources are specifically managed through the TCMP
    policies and implementing agencies' regulations. Several individual policies also address special
    concerns for living resources. For example, 31 TAC �501.14(h), Development in Critical Areas;
    31 TAC �501.14(i), Construction of Waterfront Facilities and Other Structures on Submerged
    Lands; and 31 TAC �501.14(r), Appropriations of Water, address protection of the productivity,

    Texas Coastal Management Program Final EIS    Part II 7-5                             August 1996

    diversity, and life cycles of coastal living resources. Texas' recognition of the national interest in
    fisheries is also reflected in the state's participation on the Gulf of Mexico Fishery Management
    Council, established by the federal Fishery Conservation and Management Act of 1976. To
    avoid conflicts between national and state interests, the TPWD is authorized to issue additional
    regulations that might be needed to comply with this act.

    4. Summary of National Interest Statements Received from Federal Aflencies

     a. U.S. Dernartment of Ainiculture (USDA)

           The Natural Resources Conservation Service maintains that the U.S. Department
    Agriculture has a national interest in water resources development, encompassing such activities
    as flood control, erosion control, the construction of dams, dikes, levees, etc., and wetlands.

     b. U.S. Department of Commerce (USDOC)

           (1) Economic Development Administration (FDA): The EDA furthers the national
           interest in the planning for and the siting of facilities through the discretionary award of
           assistance for local projects which are consistent with overall local planning to enhance
           economic development, and upon which there is the opportunity for state and
           metropolitan area review and comment.

           (2) National Marine Fisheries Service (NMFS): The mission of NMFS is stewardship
           of the nation's living marine resources. NMFS has primary federal responsibility for the
           conservation, management, and development of living marine resources and for the
           protection of certain marine mammals and endangered species under numerous federal
           laws. NMFS also has responsibilities to the U.S. commercial and marine recreational
           fishing industry, including fishermen; to the states; and to the general public. Under
           these responsibilities, NMFS seeks to achieve continued optimum utilization of living
           marine resources for the benefit of the nation.

     c. U.S. Denartment of Defense (DOD)

           The DOD's national interest is in the provision of national defense and in the
    establishment of new or expanded defense siting on land, in the air, and on or under the water.

           (1) Air Force: The Air Force requests that the state program recognize that national
           defense is an essential element of national interest and is one of the high-priority uses of
           air, land, and water resources.

           (2) Army: The Army maintains that Army Reserve Centers should be considered areas
           of national interest because they are a vital part of our national defense.

           (3) Navy: National interests in the coastal zone include installations and activities used
           for defense and defense training because they directly support the ability of the Navy to
           carry out its Joint Mission of Littoral Warfare. Joint Littoral Warfare is the ability to

    Texas Coastal Management Program Final EIS    Part UI 7-6                         August 1996

            mass overwhelming force and deliver it ashore to influence, deter, contain, and overcome
            an enemy. Amphibious forces with their supporting units give the Commander the ability
           to establish another front of operations against an enemy. Tasks implicit in this mission
            include, but are not limited to, mine countermeasures operations, anti-submarine warfare,
           and anti-surface warfare. The area of control to support operations in the littoral area
           extends from the shore to the open ocean and inland from the shore over that area that can
           be supported and defended directly from the sea. The intent of this mission is to
           transition forces from an oceanic transit to regional support. The ability to train in this
           mission area and maintain those forces is vital to mission success.

           (4) Army Corps of Engineers: The Army Corps of Engineers has national interest in
           facilities and programs administered by the Galveston District which identify areas of
           federal involvement in the coastal zone. National interest includes maintenance of
           federally authorized navigation channels, implementation of the regulatory actions
           including Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water
           Act, responding to national emergencies, and support of military functions within the
           State of Texas. This involvement does not constitute "overriding" national concern
           except in the case of a national emergency, when navigation projects would be a vital part
           of a defense program.

     d. U.S. Dernartment of Enerav (DOE)

           Access to domestic energy resources is a matter of national interest. Production of
    domestic gas and oil resources has strategic value to the U.S. It creates high-wage jobs, enhances
    overall U.S. global competitiveness, preserves the environment, bolsters the economy by
    preventing the export of American purchasing power and savings and improving the balance of
    trade, and increases energy security by reducing vulnerability to supply disruption of the U.S. or
    its allies. It also preserves U.S. gas and oil exploration and development technology leadership
    and spreads the use of the best environmental standards to the rest of the world.

     e. U.S. Denartment of the Interior (DOI)

           (1) U.S. Fish and Wildlife Service (USFWS): The USFWS statement of national
           interest includes the conservation, management, and enhancement of fish and wildlife
           resources, particularly migratory waterfowl, anadromous fish, and endangered and
           threatened species populations and their habitats, as well as aquatic and wetland
           ecosystems and water quality.

           (2) National Park Service (NPS): The NPS, under its Organic Act of 1916, is charged
           with managing the parks to "conserve the scenery and the natural and historic objects and
           the wildlife therein and to provide for the enjoyment of the same in such manner and by
           such means as will leave them unimpaired for future generations." The General
           Authorities Act of 1970 defined the National Park System as including all the areas
           administered by the NPS "for park, monument, historic, parkway, recreational, or other
           purposes."

    Texas Coastal Management Program Final EIS    Part II 7-7                        August 1996

           (3) Minerals Management Service (MMS): As a bureau of the Department of the
           Interior, the Minerals Management Service's primary responsibilities are to manage the
           mineral resources located on the nation's Outer Continental Shelf (OCS), collect revenue
           from the federal OCS and onshore federal and Indian lands, and distribute those revenues.

     f. Federal Emergencv Management Aencv (FEMA)

           FEMA's mission is to assist state and local governments, individuals, and volunteers in
    being prepared to save lives and protect real and personal property from natural and
    technological hazards. In executing these responsibilities, FEMA seeks to achieve a partnership
    with state and local governments, industry, individuals, first responders, volunteers, and other
    federal agencies.

      g. U.S. Geological Survey (USGS)

           USGS has a national interest in the following coastal natural resources and activities: the
    definition of the hydrodynamics, flow, sedimentation, and salinity of coastal systems; the
    development of predictive computer models to assist in managing these systems; assessment of
    hydrology, water quality, ecology and use of coastal surface water and groundwater resources;
    investigations of coastal water-resource contamination by point and nonpoint sources; and
    mapping of wetlands, floodplains, tidal boundaries, bathymetry, and hydrogeology, aided by the
    use of geographic information system technology.

      h. Federal Enerav Reeulatorv Commission (FERC)

           FERC regulates the construction and operation of hydropower facilities located on
    navigable waters or otherwise within federal jurisdiction; the construction and operation of
    natural gas facilities; the interstate sale of natural gas for resale and transportation; and the
    interstate transportation of crude oil and petroleum products. FERC also regulates interstate
    sales for resale and transmission of electric power and the rates, terms, and conditions of such
    sales and transmission; certifies qualifying facilities under Section 210 of the Public Utility
    Regulatory Policies Act; and makes exempt wholesale generator determinations under Section
    32(a) of Public Utility Holding Company Act.

     i. General Services Administration (GSA)

           The GSA is responsible for acquiring, constructing, and disposing of facilities for federal
    agencies and the courts, as well as providing goods and services. The acquisition and
    management of the buildings and land required by federal agencies to conduct government
    business are done in the national interest. GSA's interests are those of proprietor and lessor. The
    functions performed by the agencies occupying GSA-controlled space may also be of national
    interest.

     j. U.S. Nuclear Reaulatorv Commission (NRC)

           The NRC is responsible for the licensing and related regulation of nuclear facilities and
    materials. The NRC's principal concern is to assure public and occupational radiological health

    Texas Coastal Management Program Final EIS    Part II 7-8                          August 1996

    and safety and environmental compatibility. The NRC has no overriding national interest in
    locating a site within the coastal zone.

     k. U.S. Denartment of Transnortation (USDOT)

           USDOT's national interest includes construction, maintenance, operation, and
    improvement of the nation's transportation systems on and under the land, on and under the
    water, and in the air. Of special interest in the coastal zone are deepwater ports and oil and
    hazardous substance pollution prevention and response. USDOT's general policy is to assure
    protection, preservation, and enhancement of the nation's wetlands to the fullest extent
    practicable.

           (1) U.S. Coast Guard (USCG): The USCG's activities include aid to navigation,
           boating safety, national defense, bridge administration, maritime law enforcement,
           marine environmental protection and response, marine safety (including marine
           inspection and licensing), port safety and security, search and rescue, and waterways
           management.

           (2) Federal Highways Administration (FHWA): The FHWA's activities include
           planning and providing for improvement of the national highway system, including
           emergency evacuation routes.

           (3) Research and Special Programs Administration (RSPA): RSPA activities include
           research and analysis of transportation and socioeconomic effects and regulating
           hazardous materials transportation issues, including pipeline safety.

           (4) Maritime Administration (MARAD): MARAD's activities include fostering the
           development of the American merchant marine to meet national security and domestic
           and foreign commerce needs, development of ports and intermodal transportation
           systems, and maintaining the National Defense Reserve Fleet.

     1. Dernartment of Health and Human Services (HHS)

           (1) Centers for Disease Control and Prevention (CDC): The HHS has no facilities,
           programs, or projects of national interest within the Texas coastal zone at this time.
           Should a need to address the national interest in the area of public health arise, that
           interest would be addressed through coordination with the Texas Department of Health
           and the HHS Region VI office.

     m. U.S. Environmental Protection ALencv (EPA)

           EPA's national interest in the coastal zone is in protecting human health and
    environmental quality. EPA provides standards and regulations affecting water resources, as
    well as controls on pesticides and toxic substances, solid waste disposal, and abandoned
    hazardous waste sites. Its interest is to maintain a strong federal floor of protection while
    providing substantial involvement of state and local government and the public in
    decisionmaking.

    Texas Coastal Management Program Final EIS    Part II 7-9                        August 1996

    B. Activities of Re~onal Benefit

            Section 306(d)(12) of the CZMA requires the state to ensure that local government
    regulations do not unreasonably restrict or exclude land and water uses of regional benefit. The
    TCMP must identify those activities which are determined to be of regional benefit and
    demonstrate how state legal authority will ensure that these activities are not unreasonably
    excluded by local government action from locating in the coastal zone.

           Following guidance in the federal CZMA regulations (IS CFR �923.12), activities are
    considered to be of regional benefit in the Texas coastal zone if they:

         * have been identified as "Activities Affecting CNRAs` in 31 TAC �501.2 of the TCMvIP
           rules, and

         * result in a multi-county environmental, economic, social, or cultural benefit.

           Unreasonable restriction or exclusion of an activity by local government action is that
    which is arbitrary and capricious. It involves a local decision not based on rational or legal
    factors and implies an exclusion that is a detriment to the region.

    1. Identification of Activities of Regional Benefit

           Based on the above criteria, the following activities have been identified as Activities of
    Regional Benefit:

      a. Energy Exploration, Production, and Transmission
                * Electric generating facilities
                * Oil and gas exploration, production, transfer, storage, and refining

      b. Regional Waste Treatment Facilities
              0   Industrial wastewater treatment and disposal
              0   Municipal wastewater treatment and disposal, including package plants and
                  composting plants
              *   Sewage collection lines
                * Oil and gas waste management facilities

      c. Regional Water Supply Facilities
                * Reservoirs and groundwater pumping stations
                * Water distribution and transmission pipelines and canals
                * Regional water treatment facilities for drinking water

      d. Recreation and Wildlife Management
                * State beaches and associated public facilities
                * State parks and associated public facilities
                * State wildlife management areas
                * Coastal preserves
                * National seashore areas

    Texas Coastal Management Program Final EIS   Part II 7- 10                          August 1996

       e.  Transportation Facilities
                 * State and federal highways and expressways
                 * Railroads
                 * Airports
                 * Ports
                 * Navigation channels, particularly the Gulf Intracoastal Waterway

       f. Recreational and Commercial Fisheries

       g. Fanning and Ranching
                 * Livestock grazing
                 * Range management
                 * Crop production
                 * Wildlife management
                 * Agricultural product processing

    2. Manauement Authority

           Historically, local exclusion of uses of regional benefit has not been an issue in Texas.
    Local municipalities have traditionally welcomed new facilities rather than excluding them
    through municipal zoning authority. Coastal counties, with the exception of Cameron and
    Willacy, do not have zoning authority that could exclude facilities of regional benefit from
    unincorporated areas.

           Procedural requirements ensure that state authorities have adequate notice and
    opportunity to respond to actions proposed by local governments that might affect uses of
    regional benefit. County and municipal decisions must be made in public meetings held after
    due notice (TEX. REV. STAT. ANN. art. 6252-13a, Vernon Supp. 1978).

           In general, the activities identified as being of regional benefit are under direct state
    and/or federal management, which will ensure that local actions do not unreasonably restrict or
    exclude them from the coastal zone. These legal state authorities include state permitting, such
    as permitting of regional waste treatment facilities; direct management, such as TPWD authority
    over state wildlife management areas and parks; casements issued by the GLO on state lands for
    such uses. as energy production or navigation channels; and state purchase or condemnation of
    land for such purposes as highway and railroad rights-of-way.

    Texas Coastal Management Program Final EIS   Part 11 7-11                         August 1996

                                        CHAPTER EIGHT.
                                     PUBLIC PARTICIPATION
                           AND FEDERAL AGENCY CONSULTATION

    A. Background

           In passing the Coastal Zone Management Act of 1972, Congress recognized the
    overlapping interests of federal, state, and local governments in the nation's coastal resources.
    The CZMA establishes a unique partnership between federal, state, and local governments and
    the public to ensure opportunities for public participation in the allocation, protection, and
    management of coastal resources.

           The federal regulations, citing. Section 303 of the CZMA, declare that it is national policy
    for all federal agencies engaged in programs affecting the coastal zone to cooperate and
    participate with state and local governments and regional agencies in achieving the purposes of
    the act (I15 CFR �923.50 (a)). The general public, state and federal agencies, local governments,
    regional agencies, and interest groups must be allowed the opportunity for full participation
    during program development and must be allowed to provide further comment during the
    program review and approval process.

           This chapter describes how the public, state and federal agencies, local governments,
    regional agencies, and interest groups were involved throughout TCMP development and will be
    kept involved during program implementation.

    B. Direct Public Particination Durini! Program Develoinment

           Varied opportunities for direct public participation and agency involvement in the
    development of the TCMP have been offered through such mechanisms as the Executive Committee
    and committees formed by the Coastal Coordination Council, state and federal agency task forces,
    business, industry, local government and citizen focus groups, and public hearings and information
    sessions held in coastal cities.

    1. Executive Committee of the Coastal Coordination Council

           On August 6, 1992, the Coastal Coordination Council established the Executive Committee
    (EC) to coordinate implementation of Council directives; develop and review policies, issues, and
    coastal management matters of state concern; and take public comment. Each Council member
    appointed a representative to serve.

           The EC's monthly meetings, subject to the Open Meetings Act and the Texas Administrative
    Procedure Act, provided a frequent public forum for discussion of issues related to the development
    and implementation of the TCMP. The public was invited to comment on agenda items and was
    given the opportunity to comment on other issues during each meeting.

    Texas Coastal Management Program Final EIS    Part II 8-1                         August 1996

           In addition to encouraging public comment, the EC provided for greater participation by state
    agencies not represented on the Council by establishing interagency work groups to address specific
    coastal issues and to develop policy recommendations for EC and Council consideration. The EC
    convened work groups on the TCMP boundary, the critical area program, and the state consistency
    review process.

           The Council's proposed rules, adopted by the Council on October 5, 1995, will continue use
    of the EC during program implementation.

    2. Focus Groups

           Focus groups were established to promote early participation in the TCMP by the regulated
    community, primary interest groups, and other groups potentially affected by the TCMP. Focus
    groups are used to give diverse interests a clear understanding of the program development process
    and to help them formulate and convey their positions on proposals, policies, and procedures.

           The functions of the focus groups are to: (1) educate their constituents about the TCMP and
    keep them informed about the program; (2) review TCMP working documents, proposed rules, and
    other products and provide comments to Council staff, representing, insofar as possible, a consensus
    of their constituents; and (3) maintain contact with interest group constituents and act as ongoing
    liaisons with the TCMP. The TCMP focus groups represent the following interests:

       * Agriculture
       * Boating industry
       � Chemical industry
       � Coastal foundations
       � Commercial fishing
       � Dredging industry
       * Environmental interests
       * Forestry
       � Local government
       � Oil and gas industry
       * Port authorities
       * Real estate and economic development
       � Research and extension
       � Sportfishing
       � Utilities

    3. Public Meetins. Workshops. and Presentations

           Public meetings and workshops held in coastal cities and Austin have provided the
    general public and interest groups with information about the TCMP and the specific coastal
    resources and activities managed by the program. Throughout the development process, the
    GLO staff has made formal presentations and given informal talks to groups as varied as the
    Texas Chemical Council, the Texas Farm Bureau, and the South Texas Mayors' Association.

    Texas Coastal Management Program Final EIS    Part U1 8-2                         August 1996

    4. Public Particination in Rulemakine

           The state's commitment to comprehensive public participation was evident in the
    formulation of the GLO's statewide rules for management of the beach/dune system, an
    important component of the TCMP. These rules provide guidance for local government entities
    in writing the local beach access and dune protection plans required by state law.

           Public comment on the basic concepts of beach and dune system management was first
    obtained from participants in the Dune Protection Training Workshops held during the summer
    of 1992. Suggestions from the workshop participants were incorporated into the draft GLO
    rules.

           Formal public hearings on the proposed rules were held in Austin, South Padre Island,
    Galveston, Corpus Christi, Beaumont, and Surfside Beach during the fall of 1992. During the
    public comment period, which was extended to accommodate a larger-than-anticipated response,
    the Council received close to 1,000 comments on the proposed rules. The rules were revised on
    the basis of these comments, and responses to all comments were included in the preamble to the
    published final rules. Upon publication of the final rules, the GLO held informal workshops with
    local officials to assist them in understanding and meeting the state requirements.

           Public participation in the development of the TCMP boundary proposal was also
    extensive. In early 1993, the EC established an interagency work group to research and delineate
    a scientifically and technically sound TCMP boundary. After reviewing available scientific data,
    the work group presented a recommended boundary to the State Agency Task Force (SATF).
    The SATF reviewed the recommendation and supporting documentation and forwarded the
    recommendation to the EC. After its review, the EC voted to present the boundary
    recommendation to the Council at its June 3, 1993, meeting. The Council approved publication
    of the recommended boundary in the Texas Register for public comment as the proposed TCMP
    boundary rule.

           In June and July 1993, the Council held public hearings in McAllen, Corpus Christi,
    Victoria, Sugar Land, and Port Arthur to inform the public of the basis for delineation of the
    proposed boundary and to solicit public comment. A briefing and status report on the TCMP
    preceded each TCMP boundary hearing to give the public a greater understanding of the
    significance of the boundary within the program. The Federal Agency Task Force (FATF) was
    also asked to comment on the proposed boundary rule at its August 1993 meeting and was
    briefed on the public comments received.

           During the public comment period, which ended on August 10, 1993, the Council
    received over 120 written comments on the proposed rule. Council staff responded, in writing or
    orally at the Council meeting in September 1993, to all comments submitted. The EC voted to
    present its recommendation to the Council for adoption of the proposed rule at its September 2,
    1993, meeting.

           The preliminary draft TCMP document and draft rules were distributed to the SATF,
    FATF, and focus group members on December 13, 1993. These groups were asked to comment

    Texas Coastal Management Program Final EIS   Part II 8-3                       August 1996

    by January 29, 1994. The Council received more than 52 written comments and responded
    orally to comments presented at the January 28, 1994, Council meeting.

           Based on the comments received on the December TCMP document, the March 1994
    Texas Coastal Management Program Public Comment Document was produced. Over I1100
    copies were distributed to local governments; to state and federal agency personnel; to
    environmental groups; to interests including the oil and gas industry, chemical manufacturers,
    agriculture, boating, fishing, ports and navigation, forestry, real estate, and utilities; and to the
    general public. Notice of availability of the document was published in the Texas Register and
    the TCMP newsletter. In addition, copies of the document were mailed to 16 libraries in the
    coastal counties for public examination.

           The 45-day public comment period on the proposed TCMP rules ran from March 18,
    1994, to May 2, 1994. During April, seven public hearings were held in Port Lavaca,
    Brownsville, Port Arthur, Galveston, Corpus Christi, Houston, and Bay City, and one in Austin
    to receive public comment. Notice of the hearings was published in the Texas Register, mailed
    to the TCMP newsletter distribution list, and published in local community newspapers. Press
    releases were distributed to local newspapers to further publicize the hearings and the comment
    period.

           Seven of the hearings were chaired by Land Commissioner Garry Mauro. The Galveston
    hearing was chaired by Mayor Barbara Crews, the local government representative on the
    Council. More than 660 people attended the hearings. In addition to oral comments from 145
    witnesses, more than 163 sets of written comments were received. Written responses to both oral
    and written comments were prepared. Notice of the availability of responses to comments was
    published in the July/August TCMP newsletter.

           Proposed revisions to the draft rules based on comments received were presented to the
    Council on June 28, 1994. The Council voted to publish the proposed rule changes in the Texas
    Register and to extend the public comment period for another 60 days, from July 5 to September
    6, 1994. Notice of the proposed rule changes and extension of the public comment period was
    published in the July 5, 1994, issue of the Texas Register and the July/August TCMP newsletter.
    A total of 1,459 copies of the proposed revisions was distributed, including copies to all who had
    received the March 1994 document.

           In September 1994, the Council voted to adopt the TCMP rules with changes. The
    adopted rules were published in the Texas Register on September 27, 1994. During the program
    development process, over 1,000 comments were received and responded to. In addition, more
    than 200 meetings were held with groups and individuals to explain and receive feedback on the
    TCMP. Support for the program came from both industry and conservation groups.

           In December 1994, the Council approved the TCMP document and submitted it to
    Governor Ann Richards. Governor Richards submitted the TCMP document to the Department
    of Commerce for approval on December 16, 1.994.

           In March 1995, Governor George W. Bush withdrew the TCMP from the federal
    approval process and requested that the legislature review the program. The legislature amended

    Texas Coastal Management Program Final EIS   Part 19 8-4                       August 1996

    the Coastal Coordination Act and related statutes (House Bill 3226) in several ways including
    broadening the Council membership, reducing the geographic scope of the program, eliminating
    the Special Area Management Planning Process (SAMP), shortening the time allowed for
    consistency review, revising and codifying the definitions of coastal natural resource areas,
    providing an exclusive listing of the agency and subdivision actions subject to the program,
    identifying the elements of the TCMP, and mandating the establishment of a permitting
    assistance group.

           On June 8, 1995, Governor Bush signed amendments to the Coastal Coordination Act and
    related statutes into law in a ceremony in Corpus Christi, Texas.

           On June 29, 1995, the Council proposed amendments to the TCMP rules to conform them
    to House Bill 3226. These proposed amendments were available for public comment for 45 days
    after publication in the Texas Register on July 18, 1995. In addition, the Council conducted two
    public hearings on the proposed amendments, in Corpus Christi and Galveston. A total of 210
    comment letters and 38 oral testimonies were received during the comment period.

           Before voting to amend the TCMP rules at its October 5, 1995, meeting, the Council took
    additional public comment.

    C. Public ParticiDation Durini Promram Implementation

           To ensure public participation in state and federal consistency determinations and other
    program decisions, such as rule certification, the Council will publish notice in the Texas
    Register for a minimum of 30 days and in the TCMP newsletter. The Council may hold special
    hearings in addition to its quarterly public meetings to solicit public comment on its
    deliberations. This is in addition to the public participation prescribed by the permitting
    procedures of individual agencies.

           The Coastal Coordination Act establishes a Permitting Assistance Group (PAG) to
    coordinate preliminary reviews of agency and subdivision actions subject to the TCMP.
    Preliminary reviews are intended to provide direct Council input into the agency or local
    government permitting process to assist in the identification and resolution of any consistency
    issues. Public comment will be solicited on the request for preliminary consistency review via
    publication of a notice of request in the Texas Register.

           The PAG will also facilitate preapplication assistance upon request to any individual or
    sinall business owner filing an application for an agency or subdivision permit or other action
    subject to the TCMP. Depending on applicants' individual needs, this assistance will include the
    provision of. (1) a list of the permits or other approvals necessary for the project; (2) a simple,
    understandable statement of all permit requirements; (3) a coordinated schedule for each agency's
    or subdivision's decision on the action; (4) a list of all the information the agencies or
    subdivisions need to declare the applications for the permits or other approvals administratively
    complete; (5) assistance in completing applications as needed; and (6) if enough information is
    available, a preliminary finding regarding the consistency of the proposed action. Regulations
    for provision of preapplication assistance by the PAG will be developed by the Council in the

    Texas Coastal Management Program Final EIS    Part II 8-5                          August 1996

    future through the Individual and Small Business Permit Assistance Task Force. These
    regulations will be made available for public comment prior to their adoption.

           The public will be informed of a request for application assistance through publication of
    a notice of request in the Texas Register. The public will have the opportunity to comment on
    determinations made by the PAG.

           The Council will establish an advisory committee to assist in implementation of the
    TCMP and to provide a formal mechanism for ongoing public input into the program. Four or
    five regional subcommittees will be established to represent citizens, local governments, and
    other interested parties in each coastal region. The advisory committee will meet at least
    annually and will report regularly to the Council. By law, the advisory committee members
    must be persons with expertise in coastal matters and persons who live in the coastal zone.

           To facilitate public participation in the TCMP, the regional subcommittees will be
    responsible for identifying coastal issues of concern in each region, hosting regular local
    meetings in each region, and disseminating program information to the public. They will
    conduct an ongoing evaluation of the TCMP and contribute to the annual TCMP report.

    D. Public Information On The TCMP

           General program information distributed to the public describes the benefits and
    requirements of the CZMA, TCMP development activities, and ongoing avenues for public
    participation in both development and implementation of the program. Specific information is
    provided on individual program elements, including:

       � wetland protection
       � erosion response and dune protection planning
       *  energy resources management
       �  marine debris
       *  water resource management
       *  nonpoint-source pollution.

    1. Publications

           Publications including the TCMP newsletter, fact sheets, brochures, and reports have
    been distributed to the public by mail and at meetings, workshops, conferences, and displays at
    special events in an ongoing effort to keep the public informed and involved throughout the
    TCMP development process. These publications will be updated, supplemented, and distributed
    to the public during program implementation.

           The TCMP staff at the GLO maintains a mailing list comprising over 4,800 names.
    Included are TCMP committee and task force members; local and state officials; individuals who
    have inquired about the TCMP; state and regional environmental groups; other state agencies;
    realtors; developers; citizens' groups; neighborhood associations; representatives of the tourist
    industry, the petroleum and chemical industries, and the fishing industry; university programs;

    Texas Coastal Management Program Final EIS    Part U  8-6                         August 1996

            and other affected parties. Membership lists are continually solicited from various interest
             goups and organizations, as well as at special event displays, meetings, presentations, and
    is workshops ~for addition to the mailing list.
                   Everyone on the TCMP mailing list receives the Coastal Management Program
            newsletter, published bimonthly. The newsletter lists all Council and EC meetings, announces
            the publication of proposed rules and other documents in the Texas Register, lists available
            TCMIP public education materials, and gives updates on the development of the program. The
            newsletter has often included proposed or draft documents in their entirety and will continue to
            include similar information after implementation of the program to ensure public access to the
            information.

                   When meetings, hearings, or other events cannot be effectively advertised in the TCMP
            newsletter, special mailouts to the mailing list are prepared. Special mailouts were necessary to
            inform the public of the June 1995 and October 1995 Council meetings.

            2. Information Packets

                   A TCMP information packet is distributed to anyone inquiring about the program. It
            includes background information about the TCMP, coastal issues, and program development
           activities; a copy of the federal CZMA; and copies of state coastal management legislation.
           Issue-specific information on individual TCMP elements was added as the program developed.
           During the program development phase, more than 800 packets were distributed to state and
           federal agencies, local organizations, and individuals who requested current and historical
           information about the program.

           3. Media

                   The TCMP maintains close communication with major local newspapers and television
           and radio stations through press releases and press conferences to promote events, to keep the
           public informed about program development, and to encourage public participation.

                   The principal newspapers serving the coastal zone are the Houston Chronicle, Galveston
           Daily News, Corpus Christi Caller-Times, Mc~llen Monitor, Brownsville Herald, Brazosport
           Facts, Bay City Tribune, Port Athur News, Victoria -Advocate, Valley Morning Star, and
           Beaumont Enterprise. The GLO publishes notices in coastal newspapers to announce
           workshops, public meetings, and hearings. The news media are invited to all TCMP events.

                   The press has been highly effective in generating interest in the TCMP. Articles
           appeared in several coastal newspapers following the public hearings on the proposed TCMP
           boundary. For example, the June 30, 1993, edition of The Monitor, a McAllen newspaper,
           contained an article titled "Welcome to the Coastline," which described the TCMP boundary
           proposal and outlined the program. Visits by program staff to coastal communities to speak
           about the TCMP have been well publicized.

                   On November 16,1992, the GLO and the TNRCC held a press conference in Corpus
           Christi to jointly announce the development of the TCMP and the addition of Corpus Christi Bay

           Texas Coastal Management Program Final EIS    Part II 8-7                         August 1996

    to the National Estuary Program. The press conference was held in conjunction with the wetland
    workshops, TCMP information sessions, and public hearings on the proposed GLO rules for
    management of the beach/dune system. Four Corpus Christi news stations, including a Spanish-
    language station, covered the press conference. The coverage ran in the 6:00 p.m. and 10:00
    p.m. television news broadcasts and included footage of the area's beaches, bays, barrier islands,
    and wetlands.

           The press attended and covered the TCMP boundary hearings in June and July 1993, as
    well as the eight public hearings held in April 1994 on the proposed Council rules and the March
    18, 1994, draft program document.

    4. Exhibits

           Opportunities for the TCMP staff to publicize the TCMP and distribute information about
    the program arise frequently. Staff from the GLO and other participating state agencies present
    information about the program through speeches, slide shows, and display booths at schools,
    conferences, workshops, meetings, and special events.

           TCMP displays have been exhibited at conferences and coastal festivals not only in
    coastal cities and towns, but also in inland cities such as Austin and Dallas. For example, a
    TCMP display was exhibited at Galveston's "Bay Day" festival, at the Texas State Fair in Dallas,
    and at the Galveston Bay Foundation's Lobby Day in Austin.

    E. Federal Agencv Consultation

           The state initiated coordination with federal agencies on development of the TCMP
    through creation of the Federal Agency Task Force (FATF). The FATF held its first meeting in
    June of 1993. The FATF assisted in the development of the TCMP by providing information on
    the national interest, federal consistency review, and the resource data inventory. Members of
    the FATF were:

       *   Environmental Protection Agency, Region 6
       �   Federal Emergency Management Agency, Region IV
       � Minerals Management Service
       �   National Marine Fisheries Service
       *   National Park Service - Padre Island National Seashore
       *   U.S. Army Corps'of Engineers, Galveston District
           U.S. Coast Guard
       *   U.S. Department-of Energy
       *   U.S. Department of the Air Force
       � U.S. Department of the Navy
       �   U.S. Fish and Wildlife Service
       *   U.S. Geological Survey
       *   USDA Natural Resources Conservation Service

    Texas Coastal Management Program Final EIS    Part II 8-8                        August 1996

                      Consultation with federal agencies also occurred through direct correspondence with the
               agencies' Washington offices. Certified letters were mailed to federal agencies on July 9, 1993,
    is ~~to inform them of the status of the program and to solicit comments on the state's proposed
               coastal management boundary. Additional certified letters were mailed on August 12, 1993,
              requesting each agency to submit, by September 15, 1993, a written statement of its
               interpretation of the national interest in planning for and siting facilities on the Texas coast that
              are more than local in nature.

                      On August 16, 1993, the TCMP staff made a presentation to the FATF in Austin covering
              the schedule for development of the TCMP submission document, background information on
              the TCMP boundary and public comments received, the national interest in planning for and
              siting facilities which are more than local in nature, plan coordination, and the TCMP policy
              development process. Each agency was asked to list its activities and authorities relevant to
              coastal management for inclusion in the TCMP hearing document for federal consistency
              procedures.

                      The FATF met on October 12, 1993, to discuss the TCMP development timeline, uses to
              be managed, including the initial list of state and federal actions and authorizations subject to
              consistency review, and the revised CNRA definitions. FATF members provided GLO staff with
              a comprehensive list of federal actions that could be subject to consistency review.

                     The FATF met on January 11, 1994, to discuss the TCMP development timeline and the
              preliminary TCMP document, including the federal consistency review process, goals and
              policies, national interest, and plan coordination. Most federal agencies on the FATF submitted
              revised national interest statements.

                     At its April 12, 1994, meeting, the FATF discussed member agencies' conmments on the
              March 1994 Public Comment Document. Comments centered on the federal consistency review
              provisions and on excluded federal lands. In addition, GLO staff traveled to Clear Lake before
              submission of the TCMP document to OCRM in 1994 and held a joint briefing and question-
              and-answer session with the two coastal U.S. Fish and Wildlife Service offices and the Galveston
              office of the National Marine Fisheries Service.

                     Consultation with federal agencies continued through July 1995, when amendments to
              the TCMvP rules were proposed in the Texas Register. Comments letters were received from the
              USDA Natural Resources Conservation Service, OCRM, Corps, EPA Region 6, U.S. Fish and
              Wildlife Service, National Marine Fisheries Service, Minerals Management Service, and Naval
              Station Ingleside. The concerns of the federal agencies were addressed in the preamble to the
              rules when they were adopted by the Council.

                     On January 18, 1996, GLO staff sent letters to Region 6 of the Environmental Protection
              Agency, the Minerals Management Service, the National Marine Fisheries Service, the Galveston
              District of the U.S. Army Corps of Engineers, and the Clear Lake office of the U.S. Fish and
              Wildlife Service updating them on the status of federal approval of the TCMP and responding to
              earlier comments from these agencies. GLO staff followed the letters by conducting several

              meetings to discuss any remaining issues with the staffs of Region 6 of the Environmental

              Texas Coastal Management Program Final EIS    part 11 8-9                         August 1996

    Protection Agency, the National Marine Fisheries Service, the Galveston District of the U.S.
    Army Corps of Engineers, and the Clear Lake office of the U.S. Fish and Wildlife Service.

            Continuing consultation with federal agencies will be achieved primarily through the
    TCMP federal consistency review process. In addition, the FATF will continue to meet at least
    quarterly to ensure ongoing participation by federal agencies. The biweekly permit coordination
    meeting of the Corps of Engineers will also ensure advancement of state-federal coordination.

    Texas Coastal Management Program Final EIS   PartiI 8-10                         August 1996

    0

                            Part III
                ENVIRONMENTAL IMPACT STATEMENT

    0

    i

                                              PART 191
      REQUIREMENTS OF THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

    A. Purnose and Need for Action

         The purpose and need for Federal approval of the Texas Coastal Management Program
    arises out of the Coastal Zone Management Act (CZMA) of 1972 as amended (I16 U.S.C. 1451 et
    seq.). The CZMA affirmns the national interest in the effective protection and development of the
    coastal zone by providing assistance and encouragement to coastal states to develop and
    implement rational programs for managing their coastal zones to advance the national objectives
    included in the Act.

        Broad guidelines and the basic requirements of the CZMA provide the necessary direction
    for developing these state programs. These guidelines and requirements for program
    development and approval are contained in 15 CFR Part 923. In summary, the requirements for
    program approval are that a state develop a program that:

        (1) Identifies and evaluates those coastal resources recognized in the CZMA that require
    management or protection by the state.

        (2) Reexamines existing policies or develops new policies to manage these resources. These
    policies must be specific, comprehensive and enforceable, and must provide an adequate degree
    of predictability as to how coastal resources will be managed.

        (3) Determines specific uses and special geographic areas that are to be subject to the
    management program, based on the nature of identified coastal concerns. The management of
    uses, or their impacts, and areas, should be based on resource capability and suitability analyses,
    socio-economic considerations and public preferences.

        (4) Identifies the inland and seaward areas subject to the management program.

        (5) Provides for the consideration of the national interest in the planning for the. siting of
    facilities that meet more than local requirements.

        (6) Includes sufficient legal authorities and organizational structure to implement the
    program and to ensure conformance to it.

        Increases in population and development activities in coastal Texas along with their
    attendant impacts such as habitat loss, the increased exposure of lives and property to natural
    hazards such as coastal flooding and erosion, the degradation of coastal bays and estuaries
    because of adverse effects to water quality and quantity, and the fragmented government
    approach to addressing these coastal issues reinvigorated both grassroots and state agency efforts
    in Texas to develop a comprehensive coastal management program for Federal approval. As a
    result, after four years of program development, Governor George Bush submitted a proposed
    Texas Coastal Management Program to the Office of Ocean and Coastal Resource Management
    (OCRM) on October 19, 1995, for approval pursuant to Section 3 06 of the CZMA.

    Texas Coastal Management Program Final EIS  part 111- I                         August 1996

        OCRM has made a preliminary determination that the program meets the requirements of
    the CZMA, as amended. The proposed major Federal action necessitating this DEIS is,
    therefore, Federal approval of the Texas Coastal Management Program (TCMP). Pursuant to
    the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., NOAA has prepared
    this Draft Environmental Impact Statement (DEIS) to assess the environmental impacts
    associated with the approval and implementation of the coastal management program submitted
    to NOAA by the State of Texas.

    B. Alternatives IncludinL the ProDosed Action

    Introduction

        The proposed major Federal action is NOAA approval of the Texas Coastal Management
    Program. The alternatives available to the Assistant Administrator for Ocean Services and
    Coastal Zone Management (the Assistant Administrator) include delaying approval and denying
    approval (the no-action alternative). In approving a coastal management program (the preferred
    alternative), the Assistant Administrator must find that a state has met the Federal approval
    requirements of the CZMA at 15 CFR Part 923. Delay or denial of program approval could be
    based on a determination that the Texas Coastal Management Program does not meet any of the
    requirements of the CZMA, as amended, or a finding that Federal funding of the State program
    would not advance the objectives of the CZMA. The Texas Coastal Management Program,
    which is the subject of the proposed approval, is described in Part II of this document. A table
    cross-referencing CZMA requirements with sections from this document may be found in Part I.
    Texas could modify parts of the program or withdraw its application for Federal approval if the
    preferred alternative changes as a result of public comments or other CZMA considerations. A
    final program EIS will be prepared and will include responses to comments received on this draft
    EIS.

        This section of the document presents the various alternatives available to the Assistant
    Administrator and the environmental effects of those alternatives for the purpose of comparison.
    In addition, in an effort to elicit public and agency comment and to assure that the Assistant
    Administrator's determination will be appropriate, this section also identifies possible
    programmatic reasons for delaying or denying approval of the TCMP identified through the
    public review process to date.

    1.  Alternative #1  Approve the TCMP (Preferred Alternative)

        Approval of the TCMP should result in overall positive environmental effects. This analysis
    is based on a careful review of the management program as well as NOAA's twenty years of
    experience administering the National Coastal Zone Management Program.

        There are four effects on the natural and human environment directly attributable to Federal
    approval of the TCMP. First, Texas would be eligible to receive Federal financial assistance for
    program implementation and enhancement. These funds would positively contribute to improve
    management of the natural and human environment. Second, approval places an obligation on
    Federal agencies to act in a manner consistent, to the maximum extent practicable, with the
    TCMP's enforceable policies when conducting or supporting activities within, or outside, the

    Texas Coastal Management Program Final EIS  Part III- 2                         August 1996

    State's coastal zone that could affect coastal resources or land and water uses within the coastal
    zone. This will significantly impact the Federal decision-making process related to land and
    water use decisions within and outside the Texas coastal zone. Third, Texas would be required
    to consider the national interest in energy and other facilities of national importance as well as
    nationally important coastal resources in its decision-making. Fourth, program approval would
    satisfy a critical eligibility criteria for ports in Texas to be able to obtain deepwater port licenses
    pursuant to the Deepwater Ports Act of 1974 (33 U.S.C.S. �{1503).

    Section 306. 306A. 309 Funding

        Federal approval will enhance the State of Texas's financial ability to carry out its various
    coastal management efforts in accordance with TCMP policies. Texas will rely to a considerable
    degree on the program funding made available in annual Federal financial assistance awards
    under Sections 306, 306A, and 309 of the CZMA, both for program administration and for the
    Texas coastal management assistance program. Federal CZMA Section 306 funding will support
    additional staff, contracts, and other resources to enhance implementation of core TCMP laws.
    Local governments, as well as a broad range of other entities, will benefit from money available
    through the TCMP assistance fund. The State expects to use CZMA Section 306 funds to (1)
    enhance local government capacity to respond to coastal natural hazards by funding local
    planning and management efforts; (2) enhance state and local government management of
    critical areas (e.g., wetlands, submerged aquatic vegetation, and tidal flats) within their
    jurisdictions; (3) support development of an ecotourism industry in coastal Texas through the
    provision of assistance to local governments to develop plans for ecotourism; (4) streamline
    permitting processes and provide technological and technical assistance to make regulatory
    processes less costly and more efficient; (5) improve information for decision-making through
    efforts to develop baseline data and maps necessary for sound implementation of the TCMP
    goals and policies; and (6) enhance public education and outreach on coastal processes and
    management issues as well as TCMP requirements by developing and distributing materials such
    as user's manuals and by hosting public meetings, workshops, and conferences where technical
    information can be exchanged and training can be obtained.

        Federal CZMA Section 306A low-cost construction funding will be used to achieve positive
    environmental impacts. Texas has one of the strongest sets of laws in the nation protecting public
    access to the beach. However, increased shoreline development makes meeting the shoreline
    access needs of the public a challenge. CZMA Section 306A funds can be used to acquire
    additional access corridors and enhance existing access (e.g., off-beach parking, dune walkovers,
    public bathrooms). CZMA Section 306A funds are also expected to be used to revitalize urban
    waterfronts. TCMP funds can be used to revitalize urban waterfronts to provide enhanced
    recreational opportunities and boost local economies.

        Federal CZMA Section 309 funds will allow Texas to continue to enhance its approved
    program policies and procedures to address emerging priority needs in one or more of the
    following categories: (1) protecting, restoring or enhancing the existing coastal wetlands resource
    base or creating new coastal wetlands; (2) developing and adopting procedures to assess,
    consider, and control cumulative and secondary impacts of coastal growth and development; (3)
    reducing marine debris; (4) planning for the use of ocean resources; (5) preventing or
    significantly reducing threats to life and property by eliminating development and redevelopment

    Texas Coastal Management Program Final EIS  Part IIm- 3                        August 1996

    in high hazard areas and managing development in other hazard areas; (6) attaining increased
    opportunities for public access; and (7) facilitating the siting of energy facilities in an
    environmentally responsible manner.

         Funding for such efforts is expected to have direct beneficial impacts on the natural and
    socio-economic environment of the coastal region, through protection of natural areas and other
    sensitive resources, waterfront revitalization, comprehensive planning, streamlining of permits
    and the monitoring of their effects, and conflict resolution. The integrated management approach
    of a coordinated cooperative TCMP is expected to result in direct benefits to the environment
    through a heightened proactive focus on coastal resource management. The TCMP provides the
    framework for a partnership among state and local agencies and other entities, public and private,
    to cooperate to preserve, protect, develop and restore the region's unique values.

    Federal Consistency

        Federal approval and implementation of the TCM1P will have effects upon Federal agency
    actions. Approval will activate the Federal consistency provisions of Section 307 of the CZMA.
    The TCMP federal consistency process and relevant provisions of 15 CFR Part 930 are described
    in Chapter Seven. Because federal consistency entails early coordination and closer cooperation
    in planning as well as review of project proposals, it is presumed that federal consistency will
    provide another means to minimize the potential for adverse environmental impacts by
    expanding policies to comprehensively manage all private, state and Federal activities that
    adversely affect CNRAs. This is considered to be a desirable impact and one of the primary
    purposes of the CZMA. i

        The TCMIP has been developed with the assistance and input of numerous Federal agencies
    having responsibility for activities in or affecting the coastal area. Therefore, conflicts between
    the TCMIP's enforceable policies and federally permitted or conducted activities should be
    minimal. Federal activities will not be excluded, but will be required to be consistent with the
    TCMP's policies.

    National Interest Considerations

        Federal approval of Texas' program will also certify that Texas has an acceptable procedure
    to ensure the adequate consideration of the national interest involved in the siting of facilities so
    as to meet requirements which are other than local in nature. These facilities generally involve
    energy production or transmission, recreation, interstate transportation, production of food and
    fiber, national defense, etc.

        Texas has identified the following facilities, activities and natural resources as being in the
    national interest, and therefore as factors that need to be considered in the siting of facilities:
    defense and aerospace facilities and activities; energy exploration, production, and transmission
    facilities and associated activities; transportation facilities and activities; water resources
    development facilities and activities; water, air, and land pollution control facilities and
    activities; natural and technological hazard control activities; recreational facilities and activities;

    coastal natural resources including wetlands, fish and wildlife species and habitats, threatened

    Texas Coastal Management Program Final EIS   Part 11- 4                            August 1996

               and endangered species and habitats, cultural, historical, and archeological areas, natural hazard
    is ~~~areas, and barrier islands.

                    This policy requirement of the CZMA is intended to assure that national concerns related to
               facility siting are expressed and dealt with in the development and implementation of a state's
               coastal management program. The requirement should not be construed as compelling states to
               propose a program that accommodates certain types of facilities. It works to assure that such
               national concerns are not arbitrarily excluded or unreasonably restricted in the management
               program.

                    This provision may have two impacts. First, it ensures that a state has a process and a
               program that does not prohibit or exclude a use or activity dependent on the coastal zone. In the
               absence of a comprehensive program such considerations might simply be ignored by oversight
               or default. This requirement will ensure that they are specifically considered. Second, the
               existence of consultative procedure should lead to more deliberate and less fragmented decision-
               making concerning the siting of facilities in the coastal zone.

               Eligibility for Other Coastal Manaaemnent Benefits and Assistance

                    The Corpus Christi and Houston Port Authorities have been interested in constructing a
               deepwater port, partly in response to the Mega Borg and other oil spills. However, in order to
               develop and operate a deepwater port, the port authority or other applicant must first receive a
               license from the Department of Transportation (Coast Guard). The Deepwater Port Act of 1974,
    O         ~~~as amended (33 U.S.C.S. � 1503) provides that, among other reasons, the Secretary of
               Transportation will not issue a license unless the coastal state to which the deepwater port is to
               be connected has developed or is making reasonable progress in developing a Federally approved
               coastal management program.

                    The development of one or more deepwater ports could have substantial positive impacts on
               a wide array of coastal resources such as wetlands, estuaries, and beaches. The construction of
               deepwater port facilities would reduce the risk of tanker accidents and thereby reduce the risk of
               major and chronic oil spills in the busy nearshore navigation channels. While construction of
               such a port may have some potential adverse impacts such as oil spills associated with unloading
               crude oil, these adverse impacts would be outweighed by the positive impacts associated with the
               reduced risk from tanker accidents and more frequent and chronic spills.

               Indirect Effects of Federal Appnroval

                    Federal approval of the TCMP will have two broad indirect consequences for Texas. First,
               it will improve the institutional capacity of government at all levels to manage the coastal natural
               resources and the activities that impact them. Second, it will provide more clear and effective
               policies to address the principal issues of state concern.

                    The TCMP will improve the institutional capacity of government to address coastal issues
    *        ~~~and problems in several ways. First, through the application of uniform coastal policies and
               procedures, government entities will evaluate and manage activities in a more consistent manner.
               The TCMP will enhance coordination among government entities and increase predictability in

               Texas Coastal Management Program Final EIS  Part 11- 5                           August 1996

    government decision-making. The uniform coastal policies in the TCMIP will reduce the conflict
    and overlap of current government policies governing activities in the coastal zone.

         Second, the TCM4P will result in enhanced government accountability. The TCMP includes
    policies and procedures designed to help resolve conflicts between the objectives of various
    Federal, state, and local entities in the coastal zone. Through preliminary review of agency
    actions and rules, disputes can be identified and resolved early in the review process, thus
    resulting in coastal decision-making that is more accountable to the public. In cases of persistent
    disputes or conflict, the Council will act as a dispute resolution body through the exercise of
    State Consistency Review authority.

        Third, the TCMP will promote greater public participation in coastal decision-making. As
    directed by the Legislature, the Council will create advisory committees to help identify and
    address the issues and concerns facing coastal communities and resource stakeholders. These
    committees will be made up of individuals with expertise in coastal matters and representing
    broad interests. The committees will provide regular input to the Council and assist in
    preparation of the annual report to the Legislature. The public will also have the opportunity to
    participate in government decisions affecting the coastal zone when the TCM1P policies are
    applied to their decisions. Finally, the public will have direct and regular access to the Council,
    creating a forum for the discussion and resolution of coastal issues of concern to the public.
    Overall, the TCMP will enhance the institutional capacity of government entities in Texas to
    address coastal issues.

    Enhanced Coastal Policies

        The TCMIP is a networked program based largely upon the exercise of existing state
    authorities. However, several policies are expected to add to and strengthen Texas's coastal
    management efforts to prevent adverse impacts on coastal resources.

        First, the TCMIP policies governing dredging and dredged material disposal will promote
    greater beneficial use of dredged material and promote avoidance and minimization of the
    adverse effects associated with these practices. The TCM1P requires beneficial use of dredged
    material where the costs of such practices are reasonably comparable to the costs of non-
    beneficial use options. Where the costs of beneficial use exceed those of non-beneficial use
    options, beneficial use is required if the benefits exceed the additional costs. Although the
    TCMP dredge policy may have a short-term impact on navigation and maintenance of channels,
    implementation of the policy is expected to result in long-term benefits to Texas and to the
    State's coastal resources. Greater beneficial use of dredged material will help Texas more
    effectively respond to erosion problems, promote health and restoration of coastal natural
    resource areas, improve Texas's beaches, thus increasing tourism and enhancing the coastal
    economy, and improve commercial fishing by enhancing productive nearshore estuarine habitats.

        Second, the TCMP will improve beach access and dune protection by ensuring more
    consistent and effective application of the Open Beaches Act and Dune Protection Act. These
    statutes, implemented through local beach access and dune protection plans, are networked into
    the TCMIP. Local governments are expected to seek grants through the TCMP to enhance their
    capacity to implement these critical programs.

    Texas Coastal Management Program Final EIS  Part 11- 6                            August 1996

         Third, the TCMP will enhance management of coastal wetlands and other critical habitats
    through the critical areas policy. The TCMP establishes for the first time a single state policy
    governing critical areas in the coastal zone. Implementation of this policy will improve
    management of wetlands, oyster reefs, sand and mud flats, and other critical coastal resources.
    The policy emphasizes avoidance and minimization of the impacts activities have on these
    resources. The state Section 401 certification procedures, as administered by the TNRCC and
    the RRC, have been improved as a result of the TCMP policy. Ensuring consistency among
    agency regulatory programs will in itself promote more effective management of critical areas.

         Effective implementation of the TCMP will require more coordination among government
    entities taking actions and regulating activities in the coastal zone. The benefits to the public, to
    the regulated community, and to coastal resources will outweigh the increased cost of better
    government coordination.

        For a more detailed discussion of the environmental impacts of Federal approval of the
    TCMP, see Part III Section D, Environmental Consequences (p. 111-51).

    2. Alternative #2: Deny Apmroval of the TCMP

        The primary effects of denying approval to the TCMP would be the loss of Federal CZMA
    Section 306, 306A and 309 funds; the loss of Federal consistency authority; ineligibility for
    deepwater port licenses, and no assurances that national interests in coastal management would
    be considered.

        The loss of Federal funds would result in adverse environmental impacts due to the
    diminished ability of Texas to (1) implement, coordinate or enhance its program at the state and
    local levels; (2) pass through to local governments funds necessary to ensure adequate
    implementation of relevant portions of the program; (3) provide technical assistance and training
    to local governments essential for the development of a more effective and efficient coastal
    program; (4) provide permitting and technical assistance to applicants to make the regulatory
    process more efficient and effective; (5) conduct assessments of, and develop recommendations
    for improving, program effectiveness; (6) complete low-cost construction projects per 306A; (7)
    develop the scientific basis for refining and improving coastal policies and decision-making; and
    (8) conduct public education and outreach efforts related to coastal management.

        Adverse impacts could also result from the loss of Federal consistency authority. Federal
    agencies would likely continue to take actions that have potentially significant and adverse
    environmental effects on coastal resources and uses, without adequate review and input from
    Texas regarding its coastal management policies.

        Without approval, Texas will not be required to ensure that national concerns related to
    facility siting are expressed and dealt with in the development and implementation of a state
    coastal management program. This could also result in less deliberate and more fragmented
    decision-making concerning the siting of facilities in the coastal zone.

        Denial of program approval would render port authorities or other entities within Texas
    ineligible to receive deepwater port licenses from the Coast Guard, pursuant to the Deepwater

    Texas Coastal Management Program Final EIS  Part II- 7                            August 1996

    Port Act. The loss of the ability to develop deepwater ports could result in potentially significant
    environmental impacts from increased risks of oil spills and the potential impacts from dredging
    wider and deeper channels to accommodate tankers in a safer manner as an alternative to
    deepwater ports. In addition, the loss of opportunity to develop deepwater ports may have
    moderate socio-economic impacts to the State and communities that would benefit economically
    from these ports, such as Corpus Christi and the Houston/Galveston area.

    3. Alternative #3: Delav Atproval of the TCMP

         The option of delaying approval would have the same general impacts noted above, albeit
    possibly for a shorter duration. The impact of delaying approval would nonetheless be felt due to
    the inability of Texas to receive additional CZMA Section 305 program development funds.
    This is due to provisions in the CZARA which allow states to receive 305 funds for only a
    maximum of two years. While the loss of Federal program development funds might not
    prohibit development of an approvable program, it would still result in a financial burden to the
    State and hinder present efforts to improve government coordination and make Texas'
    management of its coastal resources more effective.

    4. Promrammatic Reasons for Delaving or Denvine Atmroval

        The following section identifies possible programmatic reasons that the Assistant
    Administrator might delay or deny approval of the TCMP. These are primarily issues that were
    identified in the State's public review process used in developing its management program. The
    following are considered subsets of both the alternatives to deny or delay program approval. This
    section is included in order to elicit public comment and assure that the Assistant Administrator's
    final determination will be appropriate.

    A. The Assistant Administrator could deny or delav annroval of the TCMP if the adopted inland
    boundary of the TCMP is not adeauate to meet CZMA reauirements.

        Section 306(d)(2) of the CZMA and 15 CFR �923.31 require that states establish an inland
    coastal zone boundary which is sufficient to include areas sufficient to capture all uses with
    direct and significant impacts to coastal waters, all CNRAs, waters under saline influence, salt
    marshes and wetlands, beaches, transitional and intertidal areas, and islands and must be
    presented in a manner that is clear enough for the public to determine whether they are in or
    outside of the boundary. OCRM has made a preliminary determination that the TCMP boundary
    meets these requirements.

        Some commenters have raised the issue of whether the inland coastal boundary is sufficient
    to encompass all coastal wetlands. Texas received comments from the U.S. Fish and Wildlife
    Service that some freshwater wetlands (coastal prairies) were not included in the inland
    boundary. The primary CZMA requirement for establishing the inland boundary is the inclusion
    of marshes and other wetlands with salt-tolerant vegetation. While NOAA acknowledges that
    these freshwater wetlands can serve as important habitat, these wetlands are not salt-tolerant and
    provide habitat primarily for non-marine-related species. As such, the CZMA does not require
    Texas to include these wetlands in its CZMA boundary. It should be noted that the Texas coastal
    zone boundary encompasses nearly 5 million acres of land and 4 million acres of waters. Based

    Texas Coastal Management Program Final EIS  Part III- 8                        August 1996

    on these considerations, the Assistant Administrator has made a preliminary finding that the
    State's inland boundary, based on the State's Coastal Facilities Designation Line (CFDL), is
    sufficient to encompass all coastal wetlands as required in 15 CFR �923.31 (b)(1-8).

    B.  The Assistant Administrator could deny or delay aDProval of the TCMP if the rroaram
         policies and authorities are not sufficient to meet CZMA reauirements with resard to
         managing important coastal wetlands.

         The CZMA approval and implementation regulations specifically require state coastal
    programs to include policies and authorities that will minimize the destruction, loss or
    degradation of wetlands and preserve and enhance their natural values (15 CFR �923.3).

         The ability of Texas to manage activities on privately owned submerged lands and wetlands
    has been an issue since the State began developing a program in the 1970's. Until recently, the
    State relied on its submerged lands authorities to manage coastal wetlands on state-owned lands.
    In response, during program development Texas enhanced several of its existing authorities to
    provide the needed authority to address the management of all coastal wetlands. Texas will rely
    on the Texas Natural Resource Conservation Commission's and Railroad Commission's use of
    their Section 401 water quality certification authority to manage critical areas, including
    wetlands, on privately as well as publicly owned lands. The Texas Natural Resource
    Conservation Commission and the Railroad Commission spent considerable effort in revising
    their Section 401 water quality certification rules (31 TAC 279 and 16 TAC 3.8) in order to
    ensure that the State possesses adequate authority to comprehensively manage coastal wetlands.
    Both sets of rules provide for application of a sequencing of avoidance, minimization and
    compensation for adverse impacts to wetlands based on the Federal Clean Water Act Section
    404(b)(1) guidelines.

        Commentors have raised concerns during program development regarding the adequacy of
    the State's wetlands policies in general (31 TAC 501.14(h)) and specifically the adequacy of the
    State's sequencing provisions, the alternatives test (which should provide a rebuttable
    presumption that, in the case of nonwater-dependent uses, alternative upland sites with less
    environmental impacts are presumed to exist unless demonstrated otherwise), the definition of
    water dependency; and provisions for considering compensatory mitigation (which should not be
    considered as a practicable alternative to avoidance of impacts). In response, Texas has revised
    its definition of water-dependent uses (31 TAC 501.3 (13)) so that it provides an appropriate
    alternatives test in its sequencing requirements. Finally, Texas has provided additional
    clarification of the critical areas policies including considerations of compensatory mitigation in
    the sequencing provision in Part II Chapter Four (p. 4-38) and implementation of the policies in
    Chapter Six (page 6-24) of this document.

    C.  The Assistant Administrator could deny or delav annroval of the TCMP if the State does not
        possess adeauate organizational structure or mechanisms to implement and enforce the
        management nrosram

        Commentors have raised concerns regarding the ability of Texas to ensure compliance with
    the TCMP policies of networked state agencies, local governments, and individuals--especially
    in light of the legislative changes that were made to the Council's ability to administratively

    Texas Coastal Management Program Final EIS  Part III- 9                         August 1996

    require compliance of networked state agencies and local governments (see detailed discussion in
    Part II, Chapter Five, p. 5-4 to 5-10).

         Texas will rely on several mechanisms to ensure enforcement of the TCMP policies: the
    networked state agencies and local governments, the Council in conjunction with the Attorney
    General, and the public. First, networked State agencies and local governments are required by
    the CCA to comply with and enforce the policies of the TCMP against private parties when
    undertaking actions subject to the program. State agencies and local governments will be
    assisted by the Permitting Assistance Group (PAG) through preapplication assistance and
    preliminary reviews to ensure that projects and state actions are in compliance with TCM1P
    policies.

        The state consistency review procedures provide an avenue for the Council in conjunction
    with the Attorney General to initiate legal action against an agency for failure to comply with the
    coastal policies. Under the state consistency review process, the Council will provide oversight
    of program implementation and dispute resolution functions through a review of contested
    actions referred to the Council for consistency with the TCMP policies, and ongoing monitoring
    of state agency and local government implementation of the coastal policies. When proposing an
    action, state agencies and local governments must prepare a formal consistency determination
    that concludes that the proposed action is consistent with the TCMP policies. This determination
    can be challenged by citizens, state agencies or Council members. If the determination is
    contested, and referred to the Council and the Council determines that the action is inconsistent,
    the Council will direct the agency to modify the action so that it is consistent with the TCMP
    policies. If the agency does not modify its action consistent with Council recommendations, and
    the Attorney General concurs that the agency action is inconsistent, then the Attorney General
    will initiate legal action against the state agency to compel compliance.

        In addition, in order to enhance consistent implementation of policies, most state agencies
    and local governments have committed through formal agreements to submit their existing and
    new operating rules and regulations to the Council for consistency certification. Once their rules
    are certified as consistent, the agencies can establish thresholds for referral which would limits
    on the Council's ability to review individual agency actions. While these thresholds for referral
    would place limits the Council's ability to use the state consistency review process to ensure
    compliance, they are not a permanent bar. The TCMP also provides for both an ongoing and
    annual monitoring of agency and local government actions--through an annual report--to assess
    an agency's or local government's implementation of the program. If, after a review of the
    annual reports and ongoing monitoring information, the Council detects a pattern of
    noncompliance (either finding that an agency or local government has not implemented or
    enforced the TCMP policies or that they have amended or modified their rules in a manner
    inconsistent with TCMP policies) the Council may issue a notice of program deficiency and
    ultimately can revoke certification of agency rules, which would terminate the operation of any
    thresholds for referral.

        The Council will be assisted in its monitoring responsibilities by the GLO, which will act as
    staff for the Council and assist with agency and local government monitoring. Finally, in a
    number of cases, Texas can also rely on the ability of citizens to act to ensure compliance with
    TCMP policies. Based on this information, the Assistant Administrator has made a preliminary

    Texas Coastal Management Program Final EIS    Part III- 10                       August 1996

    determination that the TCMP program organization and mechanisms are adequate for the
    purposes of the CZMA. For more details see Part II, Chapter Five.

    D.  The Assistant Administrator could denv or delav oroaram antroval if it is determined that
         the State has not adeauatelv accommodated comments from the Corns of Eneineers related
        to the State's nolicies on dredina and dredged material disposal.

         Section 306(d)(1) of the CZMA and implementation regulations at 15 CFR 923.51 require
    that states must give adequate consideration to Federal agency comments on the development of
    the program. At the time of program submission, the only outstanding Federal agency issues
    were those raised by the U.S. Army Corps of Engineers (Corps) with regard to modifying the
    State's policies related to dredging and dredged material disposal for the following reasons or
    allowing more time for review and additional comment. Texas has since held additional
    discussions with the Corps and has provided additional clarification on this policy.

        First, at the time of program submission, the Corps expressed concerns in written comments
    on the program that it could not meet the TCMP policy for beneficial uses of dredged material
    because the requirements could add additional costs to a project, resulting in costs greater than
    the "Federal standard." The "Federal standard" requires the Corps to undertake projects in the
    least costly environmentally acceptable manner. According to the Corps, costs for additional
    compliance above the "Federal standard" would have to be passed on to the local sponsor. The
    State responded by pointing out that the policy does not require the Corps to use material
    beneficially if the costs are significantly greater than traditional practices of disposal and if the
    benefits of using the material do not outweigh the additional costs of beneficial use. In addition,
    Texas and the Corps have signed a Memorandum of Agreement establishing a procedure that
    will phase in federal consistency reviews of Corps dredging projects over time. By phasing in
    reviews of projects, beneficial use requirements can be addressed early in the planning process
    for upcoming work and funds could be budgeted and/or obtained for the additional costs of using
    the material beneficially (see detailed discussions in Part II, Chapter Four, page 4-70, and Part II,
    Chapter Six, page 6-25). The State also notes that there are a number of sources of funds that
    could be used for beneficial use projects at the Federal (WRDA) and State (TxDOT) levels. Per
    subsequent discussions with the Corps, Texas has provided additional clarification that, if after
    what amounts to good faith but unsuccessful efforts by the Corp and local sponsor to secure
    funding for beneficial use of the material, the Corps may submit a new consistency determination
    for the project based on this new circumstance (see detailed discussion in Part II, Chapter Four,
    page 4-73). We would also note that it is NOAA's longstanding position that the Federal
    consistency provisions in CZMA Section 307 did not contemplate the use of economic efficiency
    (e.g., "Federal standard") as a valid justification for not complying with a state's Federally
    approved enforceable policies.

        Second, the Corps expressed concerns that it could not meet the beneficial use policy
    because the Federal Government does not provide the Corps authority to evaluate some of
    project use benefits (such as recreational, flood and storm protection, erosion prevention, and
    economic development benefits) in a project analysis as required by the TCMP's policy
    (501.14(j)(4)(B)(I)). The state responded that the Corps will not be required to exceed its
    authority. The CZMA imposes an obligation on the Corps to comply with the State's
    enforceable coastal policies, unless the Corps is specifically prohibited by law from meeting the

    Texas Coastal Management Program Final EIS    Part UII- 11                      August 1996

    policies. However, it is not clear whether there is a specific law that prohibits the Corps from
    complying with the CZMA when evaluating costs and benefits of dredged material disposal
    options. However, if there were such specific prohibitions, then, in these limited cases, the Corps
    will have met CZMA federal consistency standard of "consistent to the maximum extent
    practicable."

         Third, the Corps expressed concern that the TCMP's dredging and dredged material disposal
    policies requiring mitigation for impacts could be interpreted to apply to Corps routine
    maintenance dredging of ongoing projects. The Corps claimed that it cannot meet this
    requirement because the Federal Government does not allow for mitigation during the course of
    routine maintenance. Texas responded by pointing out that the TCMP's mitigation requirements
    simply mirror the mitigation requirements in the Clean Water Act �404(B)(1) guidelines which
    currently apply to all Corps operation and maintenance activities per the Corps dredging
    regulations.

        Fourth, the Corps also expressed concern that it was being held to a different standard than
    private individuals because the TCMP's beneficial use policy only applies to commercially
    navigable waterways and not to all dredging activities. Texas responded that the beneficial use
    policy, one of several elements making up the State's dredging policy, address those dredging
    activities (dredging in commercial waterways) that it felt would generate sufficient volumes of
    dredged material necessary for significant beneficial use projects. The State concluded that
    private dredging activities would not generate the requisite volumes of material needed for these
    beneficial projects.

    E.  The Assistant Administrator could delav rnroaram amrroval if it is determined that the
        TCMP's nolicies related to dredging and dredaed material disnosal are not sufficient to meet
        CZMA reauirements.

        The CZMA requires that a state develop policies that are appropriate to the degree of
    management needed and sufficiently specific to ensure a sufficient degree of predictability in
    decision-making (15 CFR �923.3(b)). However, concerns were raised in public comments that
    the policies related to dredging and dredged material disposal were not sufficiently specific. In
    particular, questions were raised regarding the intent and effect of the public and National
    Interest Exemption to the dredging policy in 31 TAC 501.14(j)(1)(D).

        Texas maintains that this policy reflects the current provisions in the CWA Section
    404(b)(1) and (2) related to dredging. In response to these comments the State provided
    additional explanation of the dredging policies including a discussion of the scope, applicability
    and effect of the national and public interest exemption in 501.14(j)(1)(D) in Part II Chapter
    Four of this document. The policy requires that dredging activities in coastal waters, submerged
    lands, critical areas, coastal shore areas and Gulf beaches avoid and minimize impacts to these
    resources to the greatest extent practicable. Furthermore, under normal circumstances, if the
    State determines that the dredging or placement of dredged material would result in significant
    impacts to these resources, the activity will be prohibited. However, if the socio-economic
    consequences would be detrimental to the public and national interest, then the State will
    consider the costs and benefits of not performing the dredging and, if the costs outweigh the
    benefits, the dredging may be authorized. Texas anticipates that this exception will rarely be

    Texas Coastal Management Program Final EIS    Part 1I- 12                         August 1996

    applied, and that the burden of demonstrating that the provision applies is on the applicant (see
    detailed discussion in Part II, Chapter Four, page 4-73).

         A few additional issues were raised in public comments on the Texas Coastal Management
    Program/Draft Environmental Impact Statement (see Part VII). NOAA has evaluated the issues
    and finds that none of the issues raised warrant delaying or denying approval of the program for
    the reasons given in the response to public comments in Part VII. However, NOAA has revised
    the FEIS where appropriate to address the issues raised in these comments (see response to
    comments in Part VII).

    Texas Coastal Management Program Final EIS    Part HI- 13                        August 1996

    C. DescriDtion of the Affected Environment

    1. Phvsical Environment

         Texas has about 367 miles of open Gulf shoreline and 1,100 miles of bay-estuary-lagoon
    shoreline. The total surface area of state-owned lands (mean high tide to 10.36 miles offshore) in
    the Gulf of Mexico is approximately 2,512,570 acres. The total open-water surface area of the
    bay-estuary-lagoon systems at mean high water is 1,532,430 acres (Diener, 1975).

         Seven major and three minor bay-estuary-lagoon systems occur on the coast (figs. 3-10).
    The estuarine systems are characterized by diverse climatic and hydrologic features. The climate
    along the upper coast in the Beaumont-Port Arthur and Galveston-Houston areas is humid. The
    climate along the middle coast from the Bay City-Freeport area to the Corpus Christi area is
    subhumid to dry subhumid. Along the lower Texas coast in the Kingsville and Brownsville-
    Harlingen areas, the climate is semiarid.

         Two principal wind regimes dominate the coast--persistent southeasterly winds from March
    through November, and short-lived but strong northerly winds from December through February
    (Fisher et al., 1972, 1973).

        Northers occur in the coastal zone as often as 15 to 20 times per year (Hayes, 1965).
    Northers create wind tides that inundate the bay side of barriers and peninsulas, generate high-
    velocity ebb currents which transport sand through tidal passes to the Gulf of Mexico, and
    transport sand from dune and beach areas into the swash zone. Waves associated with northers
    erode parts of the central and lower coastal shoreline and create strong longshore currents that
    move sand southward along these shoreline segments (McGowen et al., 1977).

        The Texas coast is struck by hurricanes or tropical storms about once every two years
    (McGowen et al., 1977). Simpson and Lawrence (1971) calculated that the probability of
    occurrence of a hurricane along a segment of the Texas coast in any one year varied from 7
    percent in the Corpus Christi area to 14 percent in the Bay City-Freeport area. During hurricane
    passage, shorelines may be eroded from a few tens of feet to several hundred feet in a few hours
    (McGowen et al., 1977). Maximum hurricane storm surge heights on the Gulf shoreline can vary
    from 4.2 feet above mean sea level (MSL) in the High Island area to 12.7 feet above MSL in the
    Galveston area (Bodine, 1969).

        Astronomical tidal variations in Texas estuaries are small compared with those of estuaries
    of the Atlantic and Pacific coasts; they range in the northwest Gulf of Mexico during maximum
    declination of the moon to about 2.6 feet and at minimum declination, about 0.7 feet (Ward et al.,
    1980). Meteorological events are more important than astronomical tides in affecting estuaries,
    as they alternately expose and flood the greatest area of tidal flat and marsh (Collier and
    Hedgpeth, 1950).

        The most noticeable fluctuations in bay levels are caused by direction and force of the wind
    or wind tides (White and Calnan, 1990). The amount of open-bay fetch and the direction of wind
    tides control the effectiveness of wind-tidal activity (Brown et al., 1976). For example, broad
    fetch, as in Trinity Bay and the western arm of Matagorda Bay, and persistent southeast winds

    Texas Coastal Management Program Final EIS    Part III- 14                     August 1996

                   aligned with the axis of the bay result in high wind tides that may build tide heights 2 to 3 feet
    is above normal (Holliday, 1973).

                   2. Natural Resources

                    a. Waters of the Open Gulf of Mexico

                       Waters on the inner continental shelf of the western Gulf of Mexico are characterized by
                   seasonably variable temperatures and salinities. Average surface temperatures range from 88�F
                  to 57�F (Hedgpeth, 1953). Bottom water temperatures on the upper coast range from 54�F to
                   59�F in the winter to 84�F in the summer. Bottom water temperatures on the lower or south
                  Texas coast range from 59�F in the winter to 82�F in the summer (Boesch and Rabalais, 1987).

                       Large freshwater discharges of the Mississippi and Atchafalaya rivers influence the
                  hydrography of the northwestern Gulf shelf. The influence is especially prominent in reducing
                  salinities of inner shelf waters as far west as Galveston (Boesch and Rabalais, 1987).
                  Occasionally during the late spring this influence may extend down the Texas coast (Boesch and
                  Rabalais, 1987). Hypoxia in bottom waters is a summer phenomenon off Louisiana and is
                  known to occasionally extend at least to Freeport, Texas (Harper et al., 1981). Average salinity
                  of the Gulf is 36 ppt (Hedgpeth, 1953).

                       Tidal ranges along the Gulf shoreline vary from 2.6 ft in the Sabine Pass area to 1.3 ft near
                  Brazos Santiago Pass in the Brownsville-Harlingen area (U.S. Department of Commerce, 1978).
                  Wave heights on both the upper and lower coasts range between 2.5 and 3.5 feet (U.S. Army
                  Corps of Engineers, 1956a and 1956b). Net longshore sediment transport is southwesterly on the
                  upper coast (Fisher et al., 1973) and northerly on the lower coast (Brown et al., 1980). In the
                  Kingsville area, southwestward and northward longshore currents converge near latitude 27�N
                  (Brown et al., 1977).

                       Shelf bathymetry near the Gulf shoreline is characterized by a relatively steep slope and
                  ranges from approximately 30 feet/mile in the Brownsville area to 6 feet/mile in the Sabine Pass
                  area (White et al., 1986 and 1987). At approximately 10 miles offshore, the slope decreases to
                  about 9 to 12 feet/mile in the Brownsville area to I foot/mile in the Sabine Pass area. Maximum
                  inner-shelf depths range from 96 feet in the Brownsville area to 40 feet in the Sabine Pass area.

                       The invertebrate fauna of the northwestern Gulf is generally considered an extension of the
                  warm temperate Carolinian zoogeographic province that extends from Cape Hatteras, North
                  Carolina, to Cape Kennedy, Florida (Pulley, 1953; Boesch and Rabalais, 1987). The South
                  Texas invertebrate fauna has been described as Texas Transitional, with fauna typical of both
                  tropical Caribbean areas and temperate western Atlantic areas (Pulley, 1953). The fauna of the
                  outer shelf of the northwestern Gulf has more tropical affinities than the warm, temperate inner
                  shelf.

                       The fish fauna of the northwestern Gulf of Mexico may be divided into temperate and
                  tropical components, with a vague dividing line (Hoese and Moore, 1977). Some ecological
                  factors affecting distribution include salinity, primary productivity, and substrate type. The
                  inshore Gulf and estuarine habitats share a common fauna, but there are certain species which are

                  Texas Coastal Management Program Final EIS    Part III- 15                     August 1996

    largely restricted to certain habitats. Natural rocky substrates are absent from the inshore area,
    except for some very small areas off Port Mansfield (7�2-Fathom Reef). However, piers, jetties,
    and bulkheads provide a suitable habitat for such species as sheepshead, crested blennies, hairy
    blennies, frillfin gobies, and belted sand bass (Hoese and Moore, 1977). In the shallow Gulf, the
    surf zone, with its open, sandy bottom, characteristically contains the Gulf whiting and Atlantic
    threadfin (Hoese and Moore, 1977). Outside this zone, sediments become muddier, and
    characteristic fish are the Atlantic croaker, spot, drum, silver sea trout, southern kingfish, and
    Atlantic threadfin.

         Many of the inshore fishes are estuarine-dependent and spend part or all of their lives in
    estuaries. Almost three-fourths of the fisheries harvest from the Gulf of Mexico consists of
    species dependent on estuaries or wetlands (NOAA, 1990). For example, on a Gulf-wide basis,
    inshore shrimp yields are related directly to availability of estuarine intertidal vegetation (Turner,
    1977). A typical estuarine-dependent species spawns in the Gulf of Mexico, and the larvae are
    then carried towards shore by currents. The young fish enter the estuaries and remain there,
    reaching maturity in about one year. They may remain in the estuary, migrate to sea to spawn, or
    migrate from the shallow estuaries to spend the rest of their lives in the deeper Gulf of Mexico
    (Hoese and Moore, 1977). Estuary-related species of importance include menhaden, shrimps,
    oyster, crabs, and sciaenids.

     b. Waters Under Tidal Influence

         Seven major estuarine systems with a total water surface area of 1,541,301 acres
    (Armstrong, 1987) occur on the Texas coast: the Sabine-Neches, Galveston, Matagorda-Lavaca,
    San Antonio, Copano-Aransas, Corpus Christi-Nueces, and Laguna Madre-Baffin (figs. 2-9).
    Three minor riverine estuaries are also found on the coast: the Brazos, San Bernard, and Rio
    Grande. Sedimentation has mostly filled these estuaries, and the rivers that fed them now empty
    directly into the Gulf of Mexico.

        There is very little temperature variation spatially within an estuary, either horizontally or
    vertically (Armstrong, 1987). For the most part, water temperatures follow air temperatures.
    Average annual salinities range from 2.3 ppt in Sabine Lake to 36.2 ppt in Laguna Madre
    (Armstrong, 1987). Seasonal salinity variations reflect freshwater inflows and vary considerably
    both within and between estuaries.

        Water exchange in estuaries is due to astronomical tides, winds, barometric pressure, and
    density stratification (Armstrong, 1987). Of these influences, winds are the most important and
    can produce wind tides, which over long periods can account for substantial exchange of water
    between the Gulf and estuaries. The amount of open-bay fetch and the direction of wind tides
    control the effectiveness of wind-tidal activity (Brown et al., 1976).

        Average depths in the estuaries at mean low water range from 0.7 feet in Cayo del Infemillo
    in the Baffin Bay system to 14.5 feet in Offatts Bayou in the Galveston Bay system (Diener,
    1975). Average depths of the larger bay-estuary-lagoon systems range from 2.8 feet in upper
    Laguna Madre to 10.5 feet in Corpus Christi Bay. Many of the bays are shallow, with average
    depths of less than 4 feet. Maximum depths occur in the navigation channels and near the tidal
    passes.

    Texas Coastal Management Program Final EIS    Part III- 16                      August 1996

         Temperature, salinity, water depth, and sediment type are perhaps the most important
    environmental parameters affecting distributions of fish species. Low-salinity bay communities
    are dominated by fish species such as croaker, spot, sand trout, anchovies, and mullet. Low-
    salinity to almost freshwater areas of the upper coast are characterized by such species as gar,
    killifish, mullet, and blue catfish. In areas receiving adequate fresh water, menhaden are
    dominant (Hoese and Moore, 1977). The hypersaline bays and lagoons of south Texas, such as
    Baffin Bay and Laguna Madre, contain no distinctive species, and only a greatly reduced
    assemblage found in lower salinities, such as mullet, black drum, redfish, and speckled trout.

     c. Submerged Lands

         Coastal submerged lands are one of the most extensive habitats in any coastal system. In
    Texas, the total area of submerged land habitat is approximately 6,250 mi2 or 4,000,000 acres.
    These areas are open systems that interact strongly with Gulf of Mexico and bay waters, with
    marshes and tidal flats on the periphery of the bay-estuary-lagoon system, and with riverine
    systems where they enter the estuary. Bay-estuary-lagoon sediment types are principally sand,
    mud (silt and clay), and gravel (composed primarily of shell material). The distribution of these
    different textural components follows a systematic trend for the larger bay systems, where muds
    characterize the deeper bay centers and sand the shallower bay margins (White and Calnan,
    1990). The distribution is in part a reflection of wave and current energy, which is related to
    water depth. Inorganic bottom sediments are mostly composed of quartz, feldspar, and clay
    minerals. Oolites and coated grains are among the constituents of sediments in Baffin Bay along
    the south Texas coast (Frishman, 1969).

        Sediments of the inner shelf span three textural ranges--gravel, sand, and mud. The gravel-
    sized fraction, which is minor, is composed predominantly of shell, but includes some rock
    fragments (Morton and Winker, 1979). Sand-sized sediments occupy the nearshore zone along
    the beach and shoreface and extend variable distances offshore. Muddy fine sands generally lie
    seaward of the nearshore sand zone in a narrow band that roughly parallels the sand trend. Sandy
    muds generally follow a similar pattern parallel to the coast and seaward of the muddy sand
    zone. Mud is deposited along much of the seaward perimeter of submerged lands.

        The food web of the bottom habitat is based on detritus. Fungi and bacteria, which comprise
    the benthic decomposer organisms, are capable of breaking down the organic detritus.
    Protozoans and other organisms comprising the microfauna (2/1000 in. in size) consume the
    bacteria, and these are, in turn, consumed by the diverse meiofauna, such as nematodes,
    copepods, and juvenile stages of the larger macrofauna. Macrofauna are divided into two groups,
    the epifauna, or those species living on the surface of bottom sediments, and the infauna, which
    may live in tubes or burrow into the sediments to depths up to 8 inches. Typically, the highest
    concentrations of organisms are in the top one to two inches. Benthic macrofauna are polychaete
    annelid worms, clams, snails and other mollusks, and many species of crabs and other smaller
    crustaceans. Many ecologic parameters affect the distribution of benthic macrofauna, including
    salinity, temperature, dissolved oxygen, turbidity, organic content, seagrass distribution,
    interspecific competition, predation, vagility, sedimentation rates, and sediment characteristics.
    Biological interactions between macrofauna and predation by large, motile predators are also
    important processes controlling benthic community structure. Numerous fishes, such as

    Texas Coastal Management Program Final EIS    Part m- 17                        August 1996

    croakers, drum, spot, mullet, and shrimp forage on benthic organisms. Diving birds also can
    reach the benthos to consume small mollusks and other organisms.

     d. Coastal Wetlands

         Saltmarsh - Typical species in the saltmarsh community (a marsh is a frequently or
    continually inundated wetland characterized by emergent herbaceous vegetation) include smooth
    cordgrass (Spartina alterniflora), saltwort (Batis maritima), glasswort (Salicornia virginica and S.
    bigelovii), saltgrass (Distichlis spicata), seashore dropseed (Sporobolus virginica), sea ox-eye
    (Borrichia frutescens), and salt-marsh bulrush (Scirpus maritimus). Black mangroves (Avicennia
    germinans) are significant components of salt marsh systems in some areas along the central and
    south Texas coast. Salt marshes have their broadest distribution south of the Galveston Bay area,
    where they are common on the bayward side of barrier islands and peninsulas and along the
    mainland shores of narrow bays such as West Galveston Bay. Although salt marshes occur on
    bay-head deltas, the communities change rather rapidly to brackish, intermediate, and fresh
    marshes up the river valleys.

         Brackish marsh - The brackish-marsh community is transitional between salt marshes and
    fresh marshes. Among the dominant species in topographically higher areas are marshhay
    cordgrass (Spartina patens), Gulf cordgrass (Spartina spartinae), saltgrass, salt-marsh bulrush
    (Scirpus maritimus) and sea ox-eye. Brackish marshes are the most extensive wetland
    communities in the Galveston Bay system (White and Paine, 1992). They are widely distributed
    along the lower reaches of the Trinity River delta, inland from West Galveston Bay, in the inland
    system south of the Brazos River, and along much of the lower reaches of the Lavaca and
    Guadalupe river valleys.

        An intermediate marsh assemblage occurs on the upper coast above Galveston Bay where
    salinities are generally between those found in the fresh and brackish marsh assemblages.
    Species typical of this environment include seashore paspalum (Paspalum vaginatum), marshhay
    cordgrass, Olney bulrush, cattail (Typha sp.), and California bulrush.

        Fresh marsh - Environments in which fresh marshes occur are generally beyond the limits of
    saltwater flooding, except perhaps locally during hurricanes. The freshwater influence from
    rivers, precipitation, runoff, and groundwater is sufficient to maintain a fresher-water vegetation
    assemblage consisting of such species as cattail, California bulrush, three-square bulrush
    (Scirpus americanus), water hyacinth (Eichornia crassipes), spiney aster (Aster spinosus),
    rattlebush (Sesbania drummondii), alligatorweed (Alternanthera philoxeroides), and pickerel
    weed (Pontederia cordata). Fresh marshes occur inland along river or fluvial systems and in
    upland basins, both on the mainland and on barrier islands. Inland from the chenier plain and
    upstream along the river valleys of the Neches, Trinity, San Jacinto, Colorado, Lavaca,
    Guadalupe, and San Antonio rivers, salinities decrease and fresh marshes intergrade with and
    replace brackish marshes.

        Swamps and bottomland hardwoods - Swamps are most commonly defined as woodlands or
    forested areas that contain saturated soils or are inundated by water during much of the year. In
    Texas, these are areas in which bald cypress (Taxodium distichum) and water tupelo (Nvssa
    aquatica) occur in association with other species of trees such as sweetgum (Liquidambar

    Texas Coastal Management Program Final EIS    Part III- 18                    August 1996

    stvraciflua) and willows (Salix spp.). Swamps occur principally in the entrenched valleys of the
    Sabine, Neches, and Trinity rivers. The swamps grade at slightly higher elevations into river
    bottomland hardwood forest or streamside woodland. Entrenched and nonentrenched river
    valleys to the south are dominated by drier woodlands or forested areas.

     e. Submerged Aauatic Vegetation

         Submerged aquatic vegetation (SAV) of the bay-estuary-lagoon system occurs in relatively
    shallow (less than 6 feet) subtidal areas. Five marine spermatophytes, including shoalgrass
    (Halodule wrightii), widgeongrass (Ruppia maritima), turtlegrass (Thalassia testudinum),
    clovergrass (Halophila engelmannii), and manatee grass (Svringodium filiformis) occur on the
    Texas Gulf Coast. However, only turtlegrass, widgeongrass, and shoalgrass have been reported
    on the central and northern coast. Species of SAV that occur in river deltas and do not tolerate
    long-term salinities above 6 ppt include Najas sp. and Vallisneria sp. (Zimmerman et al., 1990).

     f. Tidal Sand or Mud Flats

         Tidal sand flats and mud flats are ecologically important areas of the coast and a vital part of
    estuarine food chains. They are defined as silt and clay or sand substrates that usually occur in
    the intertidal zone and are regularly exposed and flooded by tides. In contrast to wetland
    habitats, mud flat and sand flat vegetation is minimal due to unstable sediments. Algal mats
    often occur on sand flats.'

        Mud flats and sand flats are the feeding grounds for coastal shorebirds, fish, and many
    invertebrates. Detritus and plankton collect on the flats and are eaten by primary consumers,
    which in turn are prey for higher levels of the food chain. Overall, sand flats are more abundant
    than mud flats. Extensive sandflats occur in the Laguna Madre area of South Texas, whereas
    mud flats are common on the upper coast in the Houston/Galveston and Beaumont/Port Arthur
    areas. Texas contains more tidal flats than any other state, and the Laguna Madre estuary
    contains 14 percent of the nation's tidal flats (Field et al., 1991).

     g. Oyster Reefs

        Extensive reefs of the Eastern oyster, Crassostrea virginica are present in many bays and
    estuaries. Oysters and oyster reefs are not only ecologically important, possessing all the
    ecological characteristics of special aquatic sites as defined in Section 230.3 of the EPA
    404(b)(1) Guidelines, but are also harvested commercially.

        Reefs and unconsolidated shelly sediments comprise a total of 36.8 mi2 of the Galveston
    Bay system surveyed in 1991 (Powell, 1993). The surveyed area includes the majority of West
    Bay, East Bay, Trinity Bay, and Galveston Bay. Of the surveyed area, about 60.3 percent is in
    Galveston, East, and Trinity bays. The remaining 39.7 percent is in West Bay and areas in
    Galveston Bay near Pelican Island. Powell (1993) found that the oyster reefs of the Galveston
    Bay system can be divided into naturally occurring reef that has existed over historic time and
    reef that has originated through man's influence.

    h. Hard Substrate Reefs

    Texas Coastal Management Program Final EIS    Part III- 19                       August 1996

         The only known sedimentary bank in the nearshore areas of the Gulf of Mexico off Texas is
    Seven and One-Half Fathom Reef. The reef is located approximately two miles offshore Padre
    Island in 45 feet of water (Tunnell, 1970) and measures approximately 1,155 feet along its
    northwest to southeast length. The reef provides habitat for a diverse fauna composed of a
    mixture of temperate Atlantic and tropical Caribbean organisms. The reef fauna also resembles
    fouling communities on western Gulf of Mexico coastal jetties, especially the submerged ends of
    jetties on the lower Texas coast (Felder and Chaney, 1979).

         Serpulid reefs composed of calcareous tubes of live and dead serpulid polychaetes are found
    in the Baffin-Alazan bay system, primarily along bay margins, and across the mouths of Baffm-
    Alazan bay and Baffin Bay and Laguna Madre. Serpulid reefs provide habitat for numerous
    species of crustaceans, mollusks, and polychaetes.

     i. Coastal Shore Areas

         Coastal shore areas are ecologically connected to their adjacent waterways, and any human
    modifications to these areas could have an impact on habitat and water quality. These areas
    function primarily as buffers protecting upland habitats from erosion and storm damage, and
    adjacent marshes and waterways from water-quality problems (Castelle et al., 1992).
    Unstabilized shorelines are the clay bluffs, sandy slopes, and sand and shell beaches whose
    morphology is controlled by regional geology and local coastal processes. The major bay
    systems have different proportions of shoreline types that contribute to differences in land loss
    rates between bays. Morton and Paine (1990) calculated that 27 percent of the shorelines of
    major Texas bays were bluffs and 13 percent sand and shell. Sixty percent of the shorelines were
    marsh. The Galveston, Matagorda, San Antonio, Copano, and Corpus Christi bay systems lost
    fringing land at gross rates of about 287 acres/year between 1930 and 1982, or a total of 14,924
    acres (Morton and Paine, 1990). Altered sediment supply and current patterns result in changes
    to these natural shorelines.

        A variety of birds occurs on bayshores, and few are restricted to one particular habitat
    (Britton and Morton, 1989). Cranes, rails, coots, gallinules, and other groups can be found on
    bay shorelines and in fringing marshes. Fiddler crabs (Lca spp.) are conspicuous crustaceans
    along bay-estuary-lagoon shorelines. These small crabs produce burrows that occur along almost
    every bayshore from the tide line to as much as 3 feet above sea level. The hermit crab
    (Clibanarius vittatus) also inhabits shore areas.

     j. Gulf Beaches

        Texas beaches not only serve as important recreational areas but also function as protection
    for landward structures during storms and periods of high wave and tidal activity. The beach is a
    dynamic habitat, subject to a variety of environmental influences such as wind and wave action,
    salt spray, high temperature, and moisture stress.

        Overall, maintenance of the beach dune system is principally a function of the sediment
    supply to the system. Where this supply has been reduced or interfered with, erosion is likely to
    occur. Moreover, reduced sediment supply can generally result in loss of dunes and consequent
    loss of protection to upland areas provided by the dune system.

    Texas Coastal Management Program Final EIS    Part Il- 20                     August 1996

         Relatively few animals and plants have adapted to these harsh conditions of the beach/dune
    system. The supralittoral zone or backshore begins at the base of the dunes and extends to the
    high tide line. The burrowing ghost crab (Ocypode quadrata) is one of the most conspicuous
    inhabitants of this area. Various species of tiger beetles (Cincidela spp.) may also occur in this
    area. Backshore flora is characterized by fleshy succulents, a few grasses, and prostrate creeping
    vines. The sea purslane (Sesuvium portulacastrum) can be found on the backshore and foredune
    slopes, along with bitter panicum (Panicum amarum) and the railroad vine (Ipomoea pes-caprae).

     k. Critical Dune Areas

         Sand dunes help prevent loss of life and property by absorbing the impact of storm surge
    and high waves and by stopping or delaying the intrusion of water inland. They store sand that
    slows shoreline erosion and replenishes eroded beaches after storms. They enhance the beauty of
    the coast and serve unique biological and ecological functions.

         The most conspicuous dune crest plant is the sea oat (LJniola paniculata). Sea oats occur
    along the entire coast, ranging from the backshore to the central vegetated flat of the barrier
    islands (Britton and Morton, 1989). Other plants occurring on the exposed dune slopes and
    crests include bitter panicum, beach tea (Croton punctatus), camphor daisy (Machaeranthera
    phyllocephala), seacoast bluestem (SchizachYrium scoparium), and the railroad vine. Floral
    diversity is generally higher on the leeward dune slopes than on the windward side. Many
    insects occur in the dune vegetation, including beach tiger beetles, horseflies (Tabanus spp.), and
    deer flies (Chrysops spp.). Larger ghost crabs and the red land crab (Gecarcinus lateralis) burrow
    into the dunes.

     1. Coastal Hazard Areas

        Coastal hazard areas occur along and adjacent to the Texas Gulf and bay coastline. These
    areas are typically subjected to flooding from streams and storm-tidal surges, or are impacted by
    coastal erosion and subsidence. The results are substantial physical and monetary losses, and the
    potential for the loss of lives. The causes of the hazards to the Texas coast are the constant
    forces exerted by waves, winds, and currents upon the unstable coastal natural resources that
    make up the shores. During storms, these forces are intensified and can cause significant
    changes in the beaches, dunes, floodplains, washover areas, and inlets. Hazard area property is
    both publicly and privately owned and is used by a great number of visitors. In addition,
    shoreline erosion contributes to the direct physical destruction of ecologically important coastal
    natural resources and often impairs aquatic habitat by increasing turbidity.

        A number of human activities may aggravate the destructive power of the storm-tidal surge
    and freshwater flooding. Human alteration of coastal hazard areas may result in the formation of
    new washover channels in adjacent low areas, increased shoreline erosion from the diversion of
    floodwaters, and increased exposure of new areas to tidal surge and flooding, and may impede
    the flow of floodwaters.

    Texas Coastal Management Program Final EIS    Part III- 21                     August 1996

     m. Special Hazard Areas

         Special hazard areas are low-lying coastal areas prone to storm-surge tidal flooding or
    freshwater flooding. Specifically, they include the floodplains that are susceptible to a one
    percent or greater chance of flooding in any given year (inundated by a 100-year flood), and bay
    and Gulf shores that are exposed to high-velocity wave action from storms or prone to severe
    flood-related erosion. Special hazard areas are important to the coastal ecosystem because they
    generally receive the brunt of storms, act as natural surface-water detention systems, and are
    natural filters for runoff from upland areas.

         Floodplains contain many different habitats and zones defined by a moisture gradient
    including the constantly inundated channels and lakes, overflow riverine wetlands, and dry
    uplands that are infrequently inundated. Floodplains support extensive fish populations of both
    sport and commercial fisheries. The makeup of fish populations and characteristics of the
    fisheries are dependent upon water regimes, size of the river system, proximity to estuarine
    waters, physical and chemical characteristics of the water, and geographic location of the river
    basin (Lambou, 1989). Floodplains and associated bottomland hardwoods also provide food,
    cover, and nesting sites for birds and other wildlife.

     n. Critical Erosion Areas

         Critical erosion areas are those Gulf and bay shorelines that are undergoing erosion and are
    determined to be critical by using a series of criteria developed by the General Land Office in
    coordination with state and Federal agencies and local governments. Critical erosion areas have
    been designated in the Coastwide Erosion Response Plan available from the General Land
    Office.

     o. Coastal Barriers

        Coastal barriers stretch 367 miles along the Texas shoreline, separating the Gulf of Mexico
    from the mainland (McGowen et al., 1977). Coastal barriers can include coastal natural
    resources that provide sediment utilized in coastal processes and provide food and/or habitat for
    numerous faunal species. In general, the landward boundaries of coastal barriers are distinct at
    the shoreline of bays and estuaries. However, for the deltaic headland and chenier plain features,
    the landward limit can be the Gulf Intracoastal Waterway. Coastal barriers are separated from
    each other by natural and man-made tidal passes.

        Coastal barriers act as important buffers against coastal storms, protecting the extensive
    wetlands, other CNRAs, and the mainland lying behind the coastal barriers from erosion,
    flooding, and destruction.

        Coastal barrier environments tend to be fairly severe. Fresh water is limited to ephemeral
    ponds. Salt spray is common with any onshore wind, and saltwater flooding occurs periodically
    (Shew et al., 1981). Species adapted to these relatively harsh conditions are limited in diversity
    and numbers. Floral and faunal components of coastal barriers have generally been described
    under other CNRAs, including coastal wetlands, tidal sand and mud flats, and critical dune areas.

    Texas Coastal Management Program Final EIS    Part HI- 22                        August 1996

     p. Coastal Historic Areas

         A wide range of both prehistoric and historic sites exists on the coastal plain and public
    submerged land of Texas. State Archaeological Landmarks are administered by the Texas
    Historical Commission. Historic sites include forts, shipwrecks, plantations, lighthouses, depots,
    battlefields, cemeteries, towns, ranches, and homesteads. The Texas Archaeological Research
    Laboratory at the University of Texas at Austin currently lists over 3,200 recorded archaeological
    sites within the 19 coastal counties.

     q. Coastal Preserves

         Parks are established for various recreational uses and frequently exhibit a combination of
    uses including scenic, historic, aesthetic, flood control, habitat preservation, and education, as
    well as typical outdoor recreational activities like hiking, camping, boating, fishing, and aesthetic
    benefits.

         Coastal wildlife management areas (WMAs) were acquired and are being developed,
    maintained, operated and managed, along biological lines, for the wildlife and fish which utilize
    these areas. WMAs may be used for wildlife research under controlled conditions,
    demonstration of wildlife management practices, protection of wildlife species and habitats,
    outdoor classrooms, sources of broodstock, and multi-resource public use opportunities.

        The Texas Parks and Wildlife Department (TPWD) currently maintains 13 parks and three
    fishing piers that total 16,593 acres in the 19 coastal counties. These range in size from the 149-
    acre Bryan Lake State Park to the 18,000-acre Sea Rim State Park. The three state fishing piers
    are from 1.8 to 7 acres in size. The TPWD currently manages 10 wildlife management areas in
    the 19 coastal counties that total 51,436 acres. These range in size from the 37-acre Redhead
    Pond to the 43,900-acre Matagorda Island WMA.

        The diversity of habitat and contiguous undeveloped acreage is the greatest resource within
    the WMA system. Numerous habitat types can be found within the WMA system. Coastal
    wetlands on the lower coast are typified by salt marshes on the bay side of the barrier islands,
    large, open saline bays and lagoons, and a narrow belt of mainland salt marshes backed by
    relatively unspoiled coastal prairie which offers, during periods of rainfall, many food-rich
    freshwater ponds and swales. A portion of this area is the winter home of the endangered
    whooping crane, Grus americana and thousands of sandhill cranes, Grus canadensis, which
    utilize tall grass coastal prairie and fallow agricultural fields.

        Texas is one of the most significant waterfowl wintering regions in North America. In
    recent years, 3 to 5 million waterfowl annually have wintered in Texas. This represents about 50
    percent of all waterfowl found in the Central Flyway in winter. Broad expanses of shallow flats,
    including sand and algal flats, as well as submerged aquatic vegetation, are important to ducks
    such as widgeon, pintail, redhead, gadwall, scaup, and canvasback. Approximately 650,000
    (1983-85) redhead ducks, or about 70 percent of all redheads in North America winter in the
    Laguna Madre (Moulton, 1990). Just as important is the recent recognition of the use of these
    areas by migrant neotropical birds.

    Texas Coastal Management Program Final EIS    Part 1U- 23                         August 1996

         Many endangered vertebrate species make use of these varied natural resources. These
    include Kemps ridley sea turtle (Lepidochelys kempi), the Aplomado falcon (Falco femoralis),         O
    the Attwaters prairie chicken (Tympanuchus cupido attwateri), the bald eagle (Haliaeetus
    leucoephalus), and the jaguarundi (Felis yagouaroundi). Many more threatened and marginal
    species are offered protection by the WMA system. The TPWD is currently analyzing existing
    acreage and strategies for future acquisition.

         The principal goal of the Texas Coastal Preserve Program is to ensure that desirable coastal
    natural resources are perpetuated through cooperative actions of the GLO, TPWD, and
    supporting private and public organizations. Recognizing the diversity of coastal natural
    resources and the breadth of public coastal concerns, the cooperating groups will develop a
    preserve program that: (1) protects fragile biological communities, including important colonial
    bird nesting sites; (2) protects unique coastal areas; (3) explores methods for recognizing
    preservation and enhancement opportunities; and (4) actively involves all concerned and
    knowledgeable persons and organizations. There are currently four coastal preserves: Armand
    Bayou and Christmas Bay in the Galveston Bay system; Welder Flats in the San Antonio Bay
    system; and South Bay, the southernmost extension of the lower Laguna Madre.

        The boundaries of the Armand Bayou Coastal Preserve extend from the confluence of
    Armand Bayou with Clear Lake, upstream to the limit of tidal influence. Armand Bayou is an
    open system which receives substantial inputs of fresh water, sediment, and nutrients from the
    surrounding upland areas and tributaries (McFarlane, 1991a). The 60-square-mile watershed is
    surrounded by diverse environments ranging from bottomland hardwoods and coastal prairies to
    residential, commercial, and industrial areas. Subsidence in the watershed has virtually
    eliminated the coastal marshes, extended the zone of tidal influence, and changed the lower reach
    of the bayou from a fresh to a brackish water environment.

        Christmas Bay, a small secondary bay at the southwestern extreme of the Galveston Bay
    system, is an important finfish and shellfish nursery area. Seagrasses are probably the most
    valuable and productive habitats in the bay. Four seagrass species occur in the bay; however,
    only widgeongrass is found elsewhere in the Galveston Bay system. The Brazoria National
    Wildlife Refuge is adjacent to Christmas Bay and has been a major, positive influence on the
    health and maintenance of the Christmas Bay ecosystem (McFarlane, 1991b).

        Welder Flats is located on the eastern shore of middle San Antonio Bay. The characteristic
    mid-bay wetlands of Welder Flats consist of saltwater marshes, submerged aquatic vegetation,
    unvegetated sand and mud flats, and shallow saltwater ponds and lagoons (Pulich and Hinson,
    1990). Because of its location near the Aransas National Wildlife Refuge, Welder Flats plays an
    integral role in bay waterfowl and wading bird ecology, including providing wintering habitat for
    the endangered whooping crane.

        South Bay, a semi-enclosed estuarine system at the southernmost tip of Texas, supports a
    wide variety of habitat types, including seagrasses, oyster reefs, black mangroves and other salt
    marsh species, and tidal sand and mud flats. South Bay is a highly productive nursery area for
    shrimp and finfish and provides excellent feeding, resting and overwintering habitat for
    numerous species of indigenous and migratory bird species.

    Texas Coastal Management Program Final EIS    Part II- 24                      August 1996

               3. Human Environment/Environmental Oualitv

    is ~~~a. Mineral Exr)loration and Related Activities

                    Energy is the number-one industry in Texas. Despite setbacks in the late 1 980s and early
               1 990s, energy accounted for 22 percent of the total net state revenue and 54 percent of state tax
               revenue in March 1993, according to the Texas Comptroller of Public Accounts (Sharp, 1993).

                    Texas contains 26 percent of the proven natural gas reserves in the lower 48 states, and the
               majority of those reserves lie offshore or along the coastal plain (Department of Energy, 1990).
               Texas is promoting the use of natural gas resource as an alternative fuel to revitalize the economy
               and diminish dependence on foreign oil. Even with diversification of the State's economy, the oil
               and gas industry, particularly exploration and production in the coastal zone, will continue to be
               of regional and national benefit in serving our nation's energy needs. In addition to producing
               one-third of the nation's natural gas, Texas produces one-fourth of the nation's oil, and a
               significant amount of the oil production occurs in the coastal zone.

                   Exploration, production, and service and support facilities include drilling and production
               platforms, tank farms, gas processing plants, dredged access channels, pipelines and pipeline
               landfalls, pipe coating and storage yards, platform-fabrication yards, separation facilities, service
               bases, and terminals. Texas currently houses two Strategic Petroleum Reserve sites and is being
               considered for a I100-million-barrel expansion of oil in storage in the current facilities. The
               expansion and operation of these storage facilities could impact the coastal zone.

    0            ~~~~Existing active facilities have sufficient capacity to support most of the projected level of
               future exploration and production in the coastal zone. Reactivation of inactive facilities can
               provide additional capacity; however, construction of new facilities will continue. Moreover,
               deeper and wider ports and channels may be proposed in response to the trend toward deeper
               water exploration and production of oil and gas.

                   Construction of oil and gas exploration and production facilities can disturb or destroy
               wetlands, seagrass communities, oyster reefs, and other surface resources. Filling, channel
               dredging, and other site preparation activities for construction of facilities in shallow bays and
               estuaries and on nearby shores may affect water quality, benthic communities, archaeological
               resources, and fishery resources. Resuspension of bottom sediments often results from facility
               construction and removal. Pipelines are often trenched for greater stability and protection from
              mechanical damage. According to the Minerals Management Service (MMS) Impact Statement
               for Gulf of Mexico Sales 139 and 141, 3,200 to 8,300 cubic meters of sediment are displaced per
              kilometer of pipeline.

                   Oil and gas exploration and production operations also may cause surface damage. Spills of
              crude oil and other contaminants, detonation of explosives for geophysical exploration,
              propwashing from support vessels, and tracks from land vehicles can have adverse effects on
              water quality, benthic communities, archaeological resources, and fishery resources. These
              operations also generate solid and liquid wastes. Common waste materials include debris, drill
    0       ~~~cuttings, drilling fiuds, and wastewater, particularly produced water or brine. Produced waters
              make up 98 percent of all oil and gas exploration and production wastes, and 98 percent of these

              Texas Coastal Management Program Final EIS    Part III- 25                       August 1996

    produced waters are injected underground in wells permitted by the RRC. In the coastal zone,
    the discharge of brine to surface waters, either directly or by overland flow, is common.

         The chronic exposure of estuarine habitats to brine pollution is potentially more damaging
    than accidental oil spills. Produced waters typically contain high levels of dissolved salts, with
    salinities ranging from 20 to 180 ppt, versus seawater at 35 ppt. Elevated concentrations of trace
    metals and dispersed and soluble petroleum hydrocarbons are also present. Concentrations of
    radium-226 in brines can exceed regulatory criteria established for other industries, yet little is
    known of its environmental effects (Roach and Spencer, 1992).

     b. Federal Outer Continental Shelf Activities

         Oil and gas exploration and production activities on Federal lands on the Outer Continental
    Shelf are managed by the MMS of the U.S. Department of the Interior (DOI). These activities
    have a major impact on the Texas coastal zone. The western and central portions of the Gulf of
    Mexico are characterized by the MMS, in its draft Comprehensive Program 1992-1997, as the
    mainstays of the OCS oil and gas operation and production efforts for the next five to ten years.
    The MMS predicts that 800 to I1000 new wells will be drilled in these parts of the Gulf each year
    because of the success rates in exploration and development and the potential in unexplored
    areas.

        The central and western Gulf region has one of the highest concentrations of oil and gas
    activity in the world, and this is accompanied by extensive development of onshore service and
    support facilities. The MMS has summarized the existing OCS-related onshore facilities by
    coastal subarea (U.S. Department of the Interior, 1990). It concludes that the onshore service,
    support and hydrocarbon-processing facilities already in existence will be sufficient for
    exploration, development, and production of the oil and gas projected to result from prior,
    proposed, and future sales of all Gulf of Mexico OCS lands.

        Those new facilities projected for the Western Planning Area are widely distributed
    throughout the Texas Gulf Coast. Prior lease sales are predicted to account. for 121 km of
    onshore pipe and several new pipeline landfalls. In addition, the MMvS states that the Western
    Planning Area will be the potential location for one new pipe yard and three new terminals.

        Of the 3 8 pipelines originating from either state or outer continental shelf waters along the
    Texas coast, 16 (42 percent) make landfall in the four-county area surrounding Galveston Bay.
    Gas pipelines in these areas range in diameter from 6 inches to 36 inches; oil pipelines are 4
    inches to 14 inches in diameter.

        The MMvS projects that four new oil pipelines will make landfall along the Texas coast, in
    Jefferson County (High Island), Matagorda County (Matagorda Peninsula), Calhoun County
    (Matagorda Island), and Nueces County (Mustang Island). These pipelines will be installed to
    connect new production platforms to existing pipelines or central platform facilities.

    Texas Coastal Management Program Final EIS    Part 11- 26                        August 1996

     c. Chemical and Petrochemical Manufacturing and Waste Manaoement

         The petroleum refining and petrochemical industries constitute a major part of the
    manufacturing sector of the Gulf Coast region. Of the region's top ten manufacturing companies
    in terms of employment, four are petroleum refineries, one is an oil and gas field supply
    company, and two are petrochemical companies. The first chemical plant established by a major
    U.S. company in the Gulf Coast area was the Dow plant in Freeport, built in 1938. The
    environment along the Gulf Coast proved ideal for petrochemical production, with a warm
    climate and availability of cheap electricity, seawater, and chemical feedstocks. The
    petrochemical companies grew as consumer demand for petrochemical products increased. The
    chemical and petrochemical manufacturing sector represents a major component of
    manufacturing in Texas. The chemical industry results in the employment of 450,000 Texans,
    with a total annual payroll of $15 billion. The chemical industry has invested more than $40
    billion in Texas facilities and generates more than one-quarter of the State's manufacturing value
    added. In recent years, this manufacturing sector has demonstrated increasing concern for the
    environmental consequences of its operations, instituting programs to reduce waste generation
    and impacts on coastal resources.

        Most of the existing chemical and petrochemical manufacturing infr-astructure is located in
    the Galveston Bay area. It has been estimated that 45 percent of al U.S. petrochemical
    production is in the area around Houston. Of 31 oil refineries on the Texas coast, 12 (39 percent)
    are located in the four counties surrounding Galveston Bay. This is approximately 17 percent of
    the total oil refinery design capacity in the Gulf of Mexico. Of the 74 gas processing plants on
    the Texas coast, 22 (30 percent) are in the Galveston Bay area, and 32 percent of the gas
    processing plant design capacity is in that area.

        In 1994, 1,200 Texas manufacturers reported the release or disposal of 223 million total
    pounds of toxic chemicals. Of this amount, 40 percent was managed in permitted underground
    injection wells, with the remaining 60 percent managed via water discharges, air emissions, and
    land disposal. Overall, the trend is toward reduction in the generation and release of toxic
    chemicals in the chemical and petrochemical industries. Results of the Toxic Release Inventory
    (TRI) found that from 1993 to 1994, Texas facilities had a 1.7 percent reduction in the release
    and disposal of on-site TRI-listed chemicals. The significant efforts of CLEAN INDUSTRIES
    2000 members accounted for a 3 percent reduction in toxic chemicals. CLEAN INDUSTRIES
    2000 is a TNRCC voluntary waste reduction program designed to reduce industrial pollution.
    Members voluntarily pledge to reduce the amount of toxic chemicals released and disposed of or
    the amount of hazardous waste generated by 50 percent by the year 2000. From 1993 to 1994,
    CLEAN INDUSTRIES 2000 members accounted for 14 of the top 20 TRI reduction facilities in
    Texas.

        Government and industry use several methods to reduce or store hazardous waste.
    Management methods include land filling, land farming, incineration, chemical treatment,
    discharging, deep-well injection, and recycling. Many hazardous wastes can be treated to render
    them nonhazardous, as through neutralization, or can be recycled to recover usable constituents,
    as through solvent recovery or metal reclamation.

    Texas Coastal Management Program Final EIS    Part 11- 27                       August 1996

         Proper management of toxic chemical wastes -- including reducing the total production of
    such wastes -- will lessen the potential for environmental degradation to bays, estuaries,
    wetlands, and other coastal natural resources. Current efforts to improve waste management are
    expected to continue. These efforts are particularly essential within the coastal zone where the
    chemical and petrochemical manufacturing capacity is concentrated.

     d. Municinal and Industrial Wastewater

         According to the TNRCC, there were 831 permitted municipal and industrial wastewater
    discharges in the coastal zone, as of January 1995. By far, the largest number of outfalls are
    found in Harris County, reflecting the concentration of industry and population in the county.

         The Galveston Bay system is part of a 1, 155 square-mile (2,992 sq. km.) watershed that
    encompasses parts of three counties, including Harris County. Along with the concentration of
    petrochemical industries, Galveston Bay receives the wastewater from communities with a total
    population exceeding seven million. Nearly 50 percent of wastewater discharges in the state are
    in the Galveston Bay watershed. The Houston Ship Channel receives approximately 550
    permitted discharges, 13.4 percent of the state total (Texas Water Commission, 1992b).

     e. Emission of Air Pollutants

         The TNRCC is responsible for ensuring that air quality is improved and maintained in the
    state, based upon Federal standards established for specific criteria pollutants. Criteria pollutants
    include carbon monoxide; lead, nitrogen oxide, particulate matter, ozone, and sulfur oxides.0
    Standards for these pollutants are established at levels to protect human health and the
    environment. For the industrialized coastal area, TNRCC's air quality control plans focus on
    reducing volatile organic compound (VOC) emissions and other emissions that result in the
    formation of ground-level ozone.

        Data compiled for the national TRI shows Texas, with 60 percent of the nation's
    petrochemical refining production capacity and 25 percent of its oil refining capacity, in the
    forefront of industrial pollution reduction efforts. From 1987 to 1994, roughly 1,200 Texas
    manufacturers demonstrated a 43 percent reduction in air releases of toxic chemicals reported in
    the TRI.

     f. Navigation

        Navigation and navigation-related activities (e.g., dredging and dredged material disposal)
    can conflict with - or benefit - other human uses and resource management goals in the coastal
    region.

        Prop scarring or the prop washing of sediments into adjacent sensitive areas by vessel traffic
    can damage or destroy submerged aquatic vegetation. Valuable upland and intertidal wildlife
    habitat can be lost to shoreline erosion caused or accelerated by vessel wakes. Water quality
    problems and fish kills can result from improperly planned access channels and canal lot

    developments that have inadequate circulation and flushing. Submerged aquatic vegetation and

    Texas Coastal Management Program Final EIS    Part 111- 28                     August 1996

    shellfish beds can be degraded or destroyed by siltation resulting from dredging and disposal
    operations.

         In contrast, however, many of these same activities can have positive impacts if properly
    planned and sited. New navigation channels and disposal sites can improve water circulation,
    enhancing fisheries and providing escape routes for aquatic species during unusual freeze or low-
    water events; dredged material can be used beneficially to restore, enhance, or create wildlife
    habitat and beaches can be nourished or eroding shorelines replenished using dredged materials
    of appropriate grain size and quality.

        Navigation-related activities impact natural resources primarily through dredging and
    maintenance of ship channels and from oil spills and marine debris discharged into bay and
    estuary waters. On the upper coast, channels often allow saltwater intrusion many miles inland
    from the Gulf of Mexico, adversely affecting natural salinity regimes. This results in loss or
    change in vegetation and erosion of marsh soils. Erosion along navigation channels leads to
    similar wetland losses.

        More than 95 percent of all goods imported and exported by the nation pass through
    America's ports and harbors (Coastal States Organization, 1993), and Texas is the largest
    maritime state in the United States (Texas Transportation Institute, 1989).

        Due to the shallow nature of Texas bays, estuaries, and nearshore Gulf waters, navigation on
    the Texas Gulf Coast by large vessels is limited to dredged channels. The development of Texas'
    commercial waterway network began around 1855 with completion of the Port of Galveston, the
    first deepwater port in Texas. Another early development was the Houston Ship Channel,
    opened in 1914, to connect Buffao Bayou (the Port of Houston) to the Gulf of Mexico. These
    were the first of many channel construction projects in Texas' shallow bays and estuaries that
    would eventually link Texas ports to national and international commerce (fig. 3).

        The primary navigation artery for waterborme commerce in Texas is the Gulf Intracoastal
    Waterway (GIWW) (fig. 4). Completed in 1947, the Texas Section of the GIWW stretches more
    than 426 miles from the Louisiana border to the Port of Brownsville, providing protected inland
    travel between ports and a common link for an additional 419 miles of ancillary dredged
    channels. The GIWW, and the many side channels, link 12 deep-draft and numerous shallow-
    draft Texas port facilities to worldwide commerce (Texas Department of Transportation, 1992).

        The social and economic importance of commercial navigation in Texas is significant and
    has been recognized in law. The Texas Coastal Waterway Act of 1975 states in part, "it is the
    policy of the State of Texas ... to support the marine commerce and economy of this state by
    providing for the shallow draft navigation of the state's coastal waters in an environmentally
    sound fashion," and "the legislature finds and declares ~tht... marine commerce is a vital
    element of the state's economy and the benefits derived therefrom are realized directly or
    indirectly by the entire state."

    Texas Coastal Management Program Final EIS    Part III- 29                     August 1996

                                                                      FIGURE 3

          NAVIGABLE CHANNELS

                                       ON

     THE TEXAS GULF COAST'

    From:  Texas Department of Transportation,                                                                                                         E
                1992, The Gulf Intracoastal
                waterway in Texas.

                                                 A                     S  Freeport HarborD (-DRFT                                              SUAna LOac Canne
                               C~~~~~~~~~~~~~Is                            ab ieece Wategrway Ship) Adamse  (Hayou                          C       hannel to Lbert
                                                                    7  Corus Coin   t  Ship Channel (UC CSC            a               Cowa  Bayou  Canl(KW
                                                                    3 Brazo  Citly CHarbor (BTC)                               H        ieMl   u  Chann     el toPatSClva
                                                                                  4 Galvesuo~~~~~~~~~                                 Harbour T hnes(AV  obe Biayo Channel (SC
                                                                                  6~~~~~~~~~~~~~.  Freepr abr(HEA                       ns ayou Channel(SC
                               4~~~~~~~~~~~~~ "AgraSi                                                                                       BrdyIsande 14C  Channel to Lbert
                                                                                  7  Corpus Christi S= ChannLeLightCDraf  Cedanne  Bayou
                                                                                -~~~~~~~~~~~~~ Babul   nraasa   aTermial                        Cha nnel (         HSC)
                                                                                                                          H      DGreensn Bayou Channel (USC)
                                                                                                                          0   BrfadyslBayou Channel MC
                                                                                                                          P   Lihoclte Drayot Channel UC
                                                                                                                         )      Sanlerard Crieer Clerhannel
                               $"Illrow~~~~~~~~~~~~~~~~~~~~~~~~~~                                                                         Gulfonracoasa Riverw Channel (S
                                      KE#4EDY~~ ~~~~~~~~~~~~~~~~~~~~ T                                                                       ikv         ao Channlt   e  luf    (HSC)
                                                                                                                         0       fftsByu Channeltootaaa
                                                  I~~ ~~~~~~~~~~~~~~~~~~~~~ ChanBenelt ardoo  Riefur  (Chane
                                                                                                                         S      Channel to Vilctoria
                                                                                                                         T      Channel to Seadlufft HC

                                                                                                                         V      Channel to Vicktoria
                                                                                                                         Z      Channel to Sadranssfas

                                                                                                                         AA channel to Port Aransas (CCSC)
                                                                                                                          BB    Jewel Fulton Canal
                                                  cc                                                                              ~~~ ~~~~~~~~~~~~~~~~~~~CC    Channel to Port gansfield
                                   WIU..ACY                                                                                         DO~~~~~~~~~~~~~~~~~~~~~~0    Channel to Harlingen
                                                      W~~~~~~~~W4~~~~~~~~~~ ~~~EE    Channel to Port Isabel
                                                                                                                          FF     Fishing Boat Harbor (BIU)

                                                                         These give channels maintained by the U.S. Army Corps of Engineers,
                                                                          Galveston District. SWGCO-M, I1992.

                                                                         III-30

                                                                  FIGURE 4

                                    Texas Gulf Intracoastal Waterway

                                                 - -      A   ~~~~~~~~~~r~~~~\SANJA~fV1V  .-

         tv     -TRVIS I                                                                  M-tMk                                    HA\  I N'
                    X"  -2/                               W~~~~~~~~~ASHINGTN   --I
                         "B 'ASWOP
         HAY&S         'KWLLR-T< \                                                                                          Y     1                 RM

                                                                        WA~~LEA

       -- GUADALUPE  >'COLORA'DO                                             ~       -

      '>WILSON     '~"

          KANE

                                                                         Gulf Intracoastal Waterway
                                                                         Coastal Zone Boundary
    DOKS C o s a W e lnsOy
                               NEDY~~~~~~~~~~~~ CosaWtadsOlEMS GENERAL LAND OFFICE
                                                                                                                  Austin, Ter

    -eO

                                                                                                                 GARRY MAIJRO
                                                                                                                  Comminimtoiii
                                                                                                                 October loss

                                                                   111-31

         Approximately 50 percent of the total U.S. chemical production and 30 percent of its
    petroleum industry are located adjacent to dredged channels on the Texas Gulf Coast,
    contributing greatly to the 82 million short tons of goods, valued at $23.9 billion, that were
    transported on the Texas Section of the GIWW in 1990 (Texas Department of Transportation,
    1992).

         Texas ports and dredged channels are critical to the transportation infrastructure of both the
    state and the nation, diverting traffic which would otherwise have to go by land or air,
    minimizing impacts upon highway and railway systems, and minimizing shipping costs for bulk
    goods. Modem containerized facilities and connections to rail, truck, and industrial processing
    plants have made Texas ports preeminent in the nation and the world, especially in the shipping
    of petroleum and petrochemicals. Nationally, the Port of Houston ranked second in 1992 in total
    cargo transported (Tables 4 and 5).

        Additional benefits for Texas ports are expected from the passage of the North American
    Free Trade Agreement (NAFTA). The Port of Houston is Mexico's leading U.S. port, handling
    more commodities for Mexico than all of the ports in Mexico combined, and a proposal has been
    made to construct a Texas offshore oil terminal where supertankers can unload their cargoes to
    decrease environmental hazards posed by oil'spills (Culliton et al., 1992).

        The impacts of this commercial navigation industry upon natural resources of the Texas
    coastal region are discussed under the Dredging, Shipping, and Transportation sections which
    follow.

     g. Commercial and Recreational Fishing/Boating                             is

          Commercial fishing continues to be an important industry along the Texas coast and
    constitutes a significant component of navigational traffic in Texas waters. Texas generally
    ranks in the top 10 states nationally in terms of dollar value of commercial fish and shellfish
    landed. The 5-year (1990-1994) average dockside value of commercial fishery landings in
    Texas exceeded $188 million. In excess of 98 million pounds of shrimp, oysters, crabs, and
    finfish, exceeding $175.5 million in ex-vessel value, were harvested in Texas during 1990
    (Osburn, 1990). In 1991, approximately 102 million pounds of seafood with an ex-vessel value
    of $199 million were harvested from Texas bays and the Gulf of Mexico. Shrimp accounted for
    89 percent of the weight and 94 percent of the ex-vessel value in calendar year 1991. Using an
    appropriate expansion factor, the total economic impact of this industry at the wholesale level in
    Texas approximates one-half billion dollars annually (Campbell et al., 1992).

        It has been estimated that approximately 98 % of the commercial fish and shellfish landed
    in the Gulf of Mexico, including Texas, are estuarine-dependent; i.e., dependent on estuaries
    for reproduction, nursery areas, food production, or migration. Considering the important
    part wetlands play in the coastal estuaries of Texas, it is evident that Texas' wetlands are
    essential for supporting the state's fishing industry. The relationship between a fishery and
    wetlands has been very effectively demonstrated for the shrimp fishery, which is a major
    component of Texas' fishery landings. Research has shown that the productivity of shrimp
    fisheries is directly related to the amount of vegetated area in an estuary. In other words, the

    Texas Coastal Management Program Final EIS    Part HI- 32                      August 1996

                                                          Table 4
                                          TOP 25 U.S. PORTS - 1992
                                       (Thousands of Tons from 1991 figures)*

               1. South Louisiana, LA, Port of                                                             199,662

              2. Houston, TX                                                                              137,664

              3. New York, NY & NJ                                                                        115,141

              4. Valdez, AK                                                                                93,737

              5. Baton Rouge, LA                                                                           84,569

              6. New Orleans, LA                                                                           66,007

              7. Corpus Christi, TX                                                                        60,866

              8. Plaquemine, LA, Port of                                                                   58,497

              9. Norfolk Harbor, VA                                                                        53,397

              10. Long Beach, CA                                                                           52,032

              11. Tampa, FL                                                                                46,408

              12. Lake Charles, LA                                                                         44,014

              13. Texas City, TX                                                                           43,104

              14. Mobile, AL                                                                               40,482

              15. Philadelphia, PA                                                                         39,713

              16. Los Angeles, CA                                                                          39,537

              17. Duluth-Superior, MN & WI                                                                 38,256

              18. Baltimore, MD                                                                            37,656

              19. Pittsburgh, PA                                                                           34,342

              20. Port Arthur, TX                                                                          33,525

              21. St. Louis, MO & IL                                                                       31,948

              22. Pascagoula, MS                                                                           29,245

              23. Portland, OR                                                                             28,227

              24. Newport News, VA                                                                         24,450

              25. Beaumont, TX                                                                             22,702

            * Source:   U.S. Army Corps of Engineers, Navigation Data Center Update, Waterborne Commerce Statistics Center Preliminary
                        Report, November 24, 1993.

    Texas Coastal Management Program Final EIS                 Part 11- 33                               August 1996

                                                           Table 5
                                         Tonnage Handled by Texas Ports
                                              for the Period 1989 - 1992

                    PoRT .                       '989 1             199G       I       1991       1       1992

      Houston, Texas                            124,886,883        126,177,644        131,234,000       137,663,612

      Corpus Christi, Texas**                    57,931,945         62,023,736         56,974,000        60,866,092

      Texas City, Texas                          42,746,698         48,071,122         43,290,000        43,104,101

      Beaumont, Texas                            31,947,319         26,728,664         22,383,000        22,701,500

      Port Arthur, Texas                         23,801,409         30,679,583         29,835,000        33,524,964

      Freeport, Texas                            15,137,891         14,494,397         15,666,000         14,952,599

      Galveston, Texas                           12,354,709          9,629,434         10,858,000         12,317,599

      Port Lavaca-Point Comfort, Texas            5,061,695          5,097,107          6,266,000          5,389,932

      Channel to Victoria, Texas                  3,562,336          3,740,374          3,408,000         4,265,228

      Chocolate Bayou, Texas                      3,526,758          3,300,000          3,469,000                  *

      Brownsville, Texas                          1,237,027          1,371,606          1,620,000          1,594,222

      Orange, Texas                                 657,627            709,490            849,000           552,504

      Sabine Pass Harbor, Texas                   1,248,308            630,432            503,000           419,832

      Harlingen, Texas (Arroyo Colorado)            753,937                  *            795,000                  *

      Colorado River, Texas                         682,328                  *            577,000                  *

     Johnson Bayou, Louisiana                      839,594                  *            596,000                  *

     Dickinson, Texas                              722,645                  *            532,000                  *

      Sweeny, Texas (San Bernard River)             480,519                  *                  *                  *

     Port Isabel, Texas                            318,466                  *            247,000           234,401

     Cedar Bayou, Texas                            275,458                  *            218,000                  *

     Rockport, Texas                                 2,336                  *                  *                355

     Channel to Aransas Pass, Texas                 84,325                  *                  *             13,398

     Port Mansfield, Texas                           3,909                  *                  *                  *

     Anahuac, Texas                                  3,033                  *                  *                  *

     Channel to Liberty, Texas                       4,443                  *                  *                  *

     Clear Creek, Texas                                  *                  *                  *                  *

     Double Bayou, Texas                             2,850                  *                  *                  *

     Palacios, Texas                                     *                  *                  *                  *
    * Data unavailable at time of printing.
    ** Including Harbor Island.
    NOTE: Data above is a compilation of information from 1991 MV-GC Freight Traffic Tables, Advanced Information, Navigation Data Center,
    Waterbome Commerce Statistics Center, Sept. 1993; and personal communication, Waterborne Commerce Statistics Center, March 1994.

    Texas Coastal Management Program Final EIS          Part III- 34                            August 1996

               more wetlands there are in an estuary, the more shrimp the estuary will produce.
               Unfortunately, the converse is also true, which is why it is critical to conserve and restore
               coastal wetlands in Texas. Another example of a fishery's dependence on wetlands is found in
               the menhaden fishery, whose total landings (Atlantic and Gulf) have decreased by 26% in the
               last decade. Menhaden are dependent on wetlands for nursery habitat, and the regional
               management plan for Gulf menhaden cites the loss of coastal wetlands as one of the principal
               threat to that fishery.

                   Recreational fisheries also play an extremely important role in the state's economy. In
               1991 recreational boaters spent more than $1 billion fishing in Texas' waters, generating more
               than $72 million in state sales tax. About a third of the state's recreational fishing occurs in
               coastal waters. Annually, recreational boat owners in Texas originate more than 2.4 midllion
              boat trips in coastal waters. In 1991, saltwater recreational fishing resulted in $200 million in
              earnings and supported almost 1 1,000 jobs in coastal areas. Communities such as Port Isabel,
              Aransas Pass, Palacios, and Freeport all depend on fishing to support their local economies.

                   Recreational boat traffic can impact coastal natural resources. Intensive "prop-scarring" of
              submerged aquatic vegetation - primarily seagrass - in shallow-water bays throughout the mid
              and southern Texas coast regions is not uncommon. Although this impact to aquatic vegetation
              has not been fully quantified, aerial photographs provide a reliable indication of the extent of the
              impact.

    *         ~~~h. Dredging

                   Texas bays and estuaries are crisscrossed by over 770 miles of federally maintained dredged
              channels and an as yet unquantified number of private and commercial channels. Texas is second
              only to Louisiana in the quantity of material dredged in Federal navigation projects each year.

                   In Texas coastal waters, material excavated from federally maintained channels is placed in
              more than 500 "designated" disposal sites. These disposal sites are typically upland confined,
              open-water confined, upland and open-water partially confined, open-water unconfined in bays
              and estuaries, and open-water unconfined in Federally approved Ocean Dredged Material
              Disposal Sites (ODMDS) located in the Gulf of Mexico. The disposal sites located in the bay and
              estuary environments encumber approximately 72,000 acres (about II12 square miles) of upland,
              intertidal, and submerged lands. The Gulf of Mexico ODMIDS encumber approximately 25,875
              acres or 40.43 square miles (General Land Office, 1993).

                   According to the Corps of Engineers, the Galveston District dredges about 30 to 40 million
              cubic yards of material annually. Approximately 50% of that material is placed within confined
              placement areas. The other half is placed in beach fill projects, bird island nourishment projects,
              partially confined or unconfined uplands, the open Gulf of Mexico, or the open bay. Open bay
              placement accounts for approximately 20% of the total material dredged in the district, or
              approximately 8 million cubic yards of material every year.

               Texas Coastal Management Program Final EIS    Part 111- 35                     August 1996

         The most significant environmental impacts of dredged material disposal in Texas waters are
    related to the historic preference for use of partially confined or unconfined open-water disposal
    sites. Material placed in these sites typically disperses as mud flows or siltation during or
    immediately following the disposal operation, commonly beyond the authorized limits of the
    disposal site. A study conducted in Galveston Bay (Bassi and Basco, 1974) documented that up
    to 63 percent of the material placed in an unconfined site was redistributed outside the designated
    area over a period of five months, spreading out over the bay floor as a mud-density flow and
    eventually impacting an area three times larger than the original disposal site.

         Dispersion of dredged material beyond the boundaries of a designated disposal site is
    dependent on many factors including the quantity and type of material, depth of placement, and
    technology used. Material typically dredged from channels in Texas bays and estuaries during
    maintenance operations is fine-grained and does not settle out of the water column rapidly. This
    type of material is easily dispersed into adjacent habitats. No comprehensive studies of the
    impacts of this dredged sediment dispersal upon aquatic resources in Texas bays and estuaries
    have been undertaken.

        Additional impacts (important from the cumulative perspective) occur from private and
    commercial dredging activities permitted by Federal and state regulatory agencies. These projects
    range from small boat slips and private channels to large access channels for oil and gas
    exploration, channels and basins for commercial marinas, and berthing areas for shipping.

        In addition to potential impacts on benithic communities and cultural resources from direct
    removal or siltation, dredging and disposal of dredged material may also alter water circulation
    patterns, sediment transport systems, and bathymetry, resulting in accelerated shoreline erosion,
    increased turbidity, resuspended contaminants, and potential adverse impacts on water quality.
    These alterations can, in turn, affect the health of aquatic organisms and human users of coastal
    resources.

     i. Shinrmina and Onerational Activities

        More than 102,000 vessel trips transported more than 302 million tons of cargo to the six
    largest Texas ports during 1987 (Center for Marine Conservation). Shipping traffic is largely
    responsible for marine debris that is removed from Texas Gulf beaches each year. During the
    1992 National Coastal Cleanup 13,000 volunteers cleaned 166 miles of Gulf beach in Texas,
    collecting 351,440 pounds of debris (Center for Marine Conservation, 1992) (fig. 5). This marine
    debris can be broadly broken down into two main categories: (1) ocean-based debris, which
    includes garbage disposed of by commercial and recreational fishing and boating vessels,
    merchant and cargo vessels, petroleum industry activities, and passenger cruise ships; and (2)
    land-based debris, which includes trash left by beach users, items that make their way to the beach
    through antiquated or inadequate sewage systems, and debris contributed by storm drains. (Center
    for Marine Conservation, 1992).

    Texas Coastal Management Program Final EIS    Part 111- 36                     August 1996

         A variety of sources are responsible for the discharge of oil and chemicals into Texas coastal
    waters. Data for these discharges, compiled by the GLO's Oil Spill Prevention and Response
    Division, reveal the following breakdown of spill constituents discharged into Texas waters in
    calendar year 1992: 74.9 percent oil, 6.5 percent chemical, 8.6 percent other (including tallows,
    vegetable oils, drilling mud, etc.), and 10.0 percent classified as "mystery." The regional
    distribution of these spills is illustrated in figure 6 (General Land Office, 1993).

     j. Shoreline Development

         Rapid population growth and resulting development throughout the coastal zone over the last
    two decades have resulted in tremendous pressure to locate development close to the water. The
    value of residential, commercial, and industrial development is enhanced by proximity to the
    water. This has led to progressively complex issues that must be resolved by government entities,
    industry, developers, and coastal residents. These issues arise from the need to protect the
    sensitive coastal environment and to protect life and property from the forces of nature while
    preserving or enhancing multiple uses of valuable coastal resources, particularly those uses whose
    very existence and success depend on a waterfront location.

         In hearings and workshops sponsored by the GLO in 1990, coastal citizens identified public
    beach access, dune protection, and shoreline erosion as three of the four most critical problems
    that a coastal management program should address (Texas Coastal Management Plan -1991). The
    beaches and dune complexes on the Gulf of Mexico shoreline are one of the state's most precious
    natural resources. One of the greatest coastal management challenges is to simultaneously
    provide for development of highly valuable beachfront property, improve public access to beaches
    and protect them from erosion exacerbated by development, and preserve dunes for their storm
    protection and erosion prevention functions.

        Erosion rates along the Texas coast vary. More thani 27,000 acres of Gulf shoreline were lost
    between the mid-1I800s and 1982, at an average long-term rate of about 225 acres/year. Bay
    shoreline loss between 1930 and 1982 averaged 287 acres/year (Paine and Morton, 1989).

     k. Industrial/Commercial Construction

        Commercial and industrial building along the nation's coastline accounted for approximately
    40 percent of the total authorized construction between 1970 and 1989. Of that, 24 percent was in
    the Gulf of Mexico region. Texas had the highest level of coastal office development in the early
    1980s as a result of the building boom in Houston. A decline in building permits in the coastal
    counties occurred after 1984; however, Texas still ranks third in the nation in retail building
    construction, second in office building construction, and sixth in industrial building construction.

    Texas Coastal Management Program Final EIS    Part III- 37                       August 1996

                                             FIGURE 5

       PERCENT COMPOSITION Of TEXAS'S BEACHF DEBRIS:

                      Plastic 68.76

                                                                                      C$o1h 1.34
                                                                                      Wood 2.56

                                                                                  Paper 7.5

                                          Gloss 8.6      RPubber 249

      TEXAS'S 1992 DIRTY DOZEN:.

                                                  Total Number                  Percent of Total
                                                    Reported                   Debris Collected

       1. Plastic pieces                              47,392                          10.01
       2. Plastic caps/lids                           28,593                           6.04
       3. C0garette butts                             25,161                           5.31
       4. Plastic food bags/wrappers                  24,891                           5.26
       5. Plastic rope                                22,813                           4.8
       6. Foamed plastic pieces                       19,775                           4.17
       7. Metal beverage cuts                         17,466                           3.69
       S. Glas beverage bottles                       16,18                            3.42
       9. Plastic beverage botties                    13,136                            2.77
      10. Miscellaneous plastic hags                  13,03                            2.7
      11. Paper pieces                                12,267                           2.59
      12. Glass pieces                                12,02                             2.54

      Total                                           2,52,761                         53.37

    From:    Center for marine Conservation, 1992
             National Coastal Cleanup Results.

                                                  III-38

                                           FIGURE 6

    Percentage of Spills Per Region
    Calendar Year 1992

                                                                      REGION I

              REGION 3
                  30. 19%

                                                          GION 2

      pr(=: Ceneral Tantj office, i993 oil Spill' Prevrention and
              Response Act Progress Report 1qaticnal Coastal Cleanu~p Results.

         Region I  Region  2f                                            Region 2
         Cmft Os f AMResa, Orange, -    calft; of flarris, Brazodia, and  coebtist of Jadcon, Vidadd,
         and padts of Chambers and   Patt of Galve~ston, Chambers,      Colimun, Re~uwi, Armess, San
         Galveston (ounfies. -and Matagorda Counfies.            N M ti~, Nueces, M~beSg
                                                                 Kenedy, Willacy, Carneron end
                                                                 poat of Mawoaorda Counfies.

                                         III-39

          The hotel industry is a vital part of the coastal economy. Texas ranked fifth in the nation in
    coastal hotel and recreational building construction for the period of 1970 through 1989. Many of
    Texas' most popular vacation spots are located on or near the coast. Together with the growing
    coastal population, the demand for coastal recreational opportunities and the stress on natural
    systems as a result of increased tourist visits are expected to grow. Like commercial and
    industrial growth, the growth of the hotel industry reached its peak in the ealy 1980s and has
    declined since.

          The Texas Department of Commerce has compiled figures on the economic impact of travel
    and tourism on Texas counties in 1990-199 1, and the economic impact on coastal counties is
    substantial. For example, in the one-year time period, travel-related expenditures in Harris
    County amounted to about $3,380,800,000, payroll of $1,318,500,000, and employment of 73,340
    people.

          Texas coastal marinas provide direct access to bays, the Laguna Madre, and the Gulf of
    Mexico. Galveston Bay accounts for 30 percent of the total number of marinas on the Texas coast
    and 63 percent of the total wet slips in commercial marinas. The demand for recreational marinas
    is high in the coastal zone and will continue to increase. In addition to their value in providing
    protected moorage, fuel, repairs, and sanitation for boats, coastal marinas provide many social and
    economic benefits. These include access to coastal waters, focal points for community activities,
    focus for upland development, tax revenues for local communities, revenue for owners and the
    broader marine industry, and employment opportunities (Ditton et al., 1988).

     1. Residential Construction

          Choosing a location for a home along the Texas coast today is quite different from the
    choices made by the first Texas settlers. The first coastal inhabitants in Texas were the
    Karankawas, a nomadic tribe of Indians who hunted game on the barrier islands and fished in the
    adjacent bays and lagoons. The wisdom of the Karankawas is demonstrated by their choice of
    mainland campsites, where higher elevations provided safety and protection from the forces of
    nature (Morton et al., 1983). With the advent of "coastal engineering" (bulkheads, seawalls, etc.)
    and greater accessibility of the coast, development has increasingly been located along vulnerable
    shorelines.

         With its abundant natural resources, temperate climate, and proximity to population centers,
    the coastal shoreline of Texas offers a variety of highly desirable residential sites. Many
    communities now sprawl across the coastal landscape. The Gulf shore has become a magnet for
    condominium development, while the bay shores have been drained and filled to accommodate
    the growing resident population. Between 1970 and 1989, Texas was one of the ten leading states
    in coastal residential construction (Culliton et al., 1992). By 1990, over two million single and
    multi-family housing units ha been constructed within the Texas coastal area (Bureau of the
    Census, 1990). In addition, single-family houses have become larger. The average American
    single-family home is now approximately 2,000 square feet, 25 percent larger tam in 1970

    Texas Coastal Management Program Final EIS    Part III- 40                     August 1996      is

              (Culliton et al., 1992). The construction of larger homes has resulted in the demand for larger
              shoreline lots.

                    In the past, wetlands and other sensitive areas along some shorelines were converted into
              dry land for residential, commercial, and industrial development. Dredging for waterfront
              development destroys shoreline habitats and resuspends sediments, causing increased turbidity
              which reduces light penetration to seagrass beds and suffocates oysters and other filter feeders. If
              the sediments are contaminated, their resuspension can release contaminants into the surrounding
              waters, degrading water quality. In addition, industrial and municipal groundwater pumping and,
              locally, extraction of oil and gas have accelerated subsidence around the Galveston Bay system.
              Subsidence destroys nearshore wetlands and other valuable surface resources and threatens and
              devalues shoreline properties.

                    In addition to contributing its share of point-source wastewater discharges, shoreline
              development is a major contributor of pollutants to coastal waters through stormwater runoff.
              This nonpoint-source pollution can contain garbage, pesticides, herbicides, dirt, oil, grease, and
              fecal coliform bacteria. Each year, tons of chemicals are applied by professional lawn care
              services, pest control services, and individual landowners. Texas Department of Agriculture
              (TDA) data indicate that residential runoff transports more pesticides into waterways than runoff
              from farmland. These chemicals are extremely toxic and are responsible for both the degradation
              and the mortality of marine resources. Runoff is a major contributor to seagrass decline. In
              Galveston Bay alone, 5,200 acres of seagrasses have been lost since the 1950s (McFarlane, 1988).
              Pathogens discharged from septic systems in some shoreline residential developments may cause
              disease and injury to aquatic resources and make coastal waters unsafe for human contact.

               m. Public Beach Access

                    The Texas Open Beaches Act has guaranteed the public's right of access to and use of the
              state's public beaches since 1959. The Act authorizes the Texas attorney general to file suit
              against anyone who interferes with the public use of Gulf of Mexico beaches. Both Texas courts
              and the state legislature have recognized that the public has a vested common law property right
             to use the Gulf beaches, a right akin to an easement. Of the 367 miles of beach, 173 miles are
              considered easily accessible; that is, accessible by driving along the shore or by walking no more
             than one mile from a point that can be reached by a two-wheel-drive vehicle.. Access to public
             beaches is provided by roads, off-beach parking, and dune walkovers.

                   The distance between and number of beach accessways (both vehicular and pedestrian) vary
             from community to community along the coast. For example, the City of Port Aransas maintains
             eight vehicular accessways for its nearly four and one-half miles of Gulf shoreline. The beach is
             open to vehicular traffic, although for public safety reasons, there are separate parking and bathing
             areas on the beach (Urban Engineering, 1993). The City of Galveston is considering the provision
             of off-beach parking areas along some portions of Galveston Island because'local citizens are
             concerned about public safety and excessive vehicular traffic.

    0        ~~~Texas Coastal Management Program Final EIS    Part 111- 41                   August 1996

          More beach accessways may allow increased use of the public beach. However, the
    increased public use could have adverse effects on adjacent dunes and/or coastal natural resources
    if public facilities are not available or if the accessways are not designed to avoid degrading or
    destroying those natural resources. Establishing new beach accessways through wetlands and
    dunes degrades the habitat and could conflict with use of the area for bird-watching or wildlife
    observation.

     n. Erosion Resnonse

          Erosion response techniques include both structural and nonstructural methods. Erosion
    response structures include retaining walls, bulkheads, seawalls, rubble mounds, revetments,
    breakwaters, and groins. These structures are usually constructed where shoreline retreat has
    threatened coastal development. They are more commonly found in urban areas protecting
    residential and commercial structures and infrastructure. The longest segments of structurally
    modified shoreline occur in Galveston Bay, where 42 miles, or 18 percent of the total bay
    shoreline, is protected by structures (Morton and Paine, 1990).

          While these structures may help protect coastal development and property, they can alter the
    coastal hydrologic and depositional system and adversely affect wetland productivity and
    downdrift shores. Wave energy reflected from a hard structure such as a seawall, bulkhead,
    retaining wall, rubble mound, or revetment may exacerbate erosion at the toe and endpoints of the
    structure. Breakwaters and groins are designed to slow the littoral current so that sediment can be
    deposited on the adjacent shore. However, this action decreases or depletes the amount of
    sediment available to downdrift shores and results in their erosion. The durability and
    effectiveness of structures in reducing land loss vary from site to site.

         Nonstructural erosion response methods include beach nourishment, sediment bypassing,
    dune restoration, nearshore sediment berms, and wetland creation. Nonstructural erosion response
    methods are usually used where shoreline retreat has threatened coastal development or has
    caused deterioration of a recreational beach.

         Nonstructural methods for erosion response all add sediment to the local sand budget.
    Beach nourishment extends the public beach and fills state-owned submerged lands and may have
    a temporary negative effect on submerged aquatic vegetation and infaunal species. Sediment
    bypassing helps keep the local sand budget in equilibrium and helps to maintain the adjacent
    shoreline. Nearshore berms attenuate wave energy while contributing sand to the littoral current.
    Dune restoration protects the public beach by supplying sediment to the eroded beach during
    storms. Beach nourishment and dune restoration may temporarily disrupt public beach access and
    use.

    Texas Coastal Management Program Final EIS    Part III- 42                      August 1996

     o. Storms. Hurricanes. and Flooding

          Extreme natural events such as tropical storms and hurricanes are reminders of the
    vulnerability of the coastal zone. During hurricane conditions, low-pressure weather systems are
    accompanied by intensified winds and elevated tides. Storm tides are often extremely destructive
    and are the cause of the majority of property damage and loss during a storm.

          The Texas coast is subjected to a hurricane or tropical storm about once every two years
    (McGowen et al., 1977). During Hurricane Carla in 1961, storm tides reached nearly 15 feet in
    Galveston and 21 feet in Port Lavaca. Erosion of the beach and foredune areas and breaching of
    barrier islands are associated with such storm tides. In 1983, Hurricane Alicia's 102 mph winds
    and storm tide of up to 11 feet (mean sea level) caused flooding and subsequent coastal erosion on
    the upper Texas coast (Morton and Paine, 1985). The western two-thirds of Galveston Island
    sustained the most beach erosion, although measurable erosion occurred at least 55 miles
    northeast of landfall (Savage et al., 1984).

          Coastal flooding is an ever-present threat to public safety and coastal natural resources.
    Elevations of the Texas coastal zone are generally low (less than 10 feet) with the exception of
    dune areas along the coastal bend and lower coast, where they can reach 40 feet above mean sea
    level. Large, well vegetated dunes are able to protect landward properties from flooding, but most
    areas of the coast are considered floodprone.

          Table 6 shows the number of floodprone communities located within the 19 coastal
    counties. Of the 163 communities, only eight do not participate in the National Flood Insurance
    Program (NFIP). The NFIP makes flood insurance available to those communities that follow the
    Federal regulations for reducing future flood losses.

     p. Subsidence

          Subsidence, the sinking of the land surface, is a primary contributor to shoreline loss.
    Subsidence may be due to both relative sea level rise and the withdrawal of groundwater, and, in
    some instances, to oil and gas extraction. As the water level rises, marsh along the shoreline is
    drowned. When residential development is located along the shoreline, the potential for marsh
    migration inland is eliminated. The result is a reduction in wetland habitats which provide the
    foundation for commercial and recreational fisheries. Subsidence also exposes shorelines to
    greater wave activity, which in turn accelerates coastal erosion. Subsidence was a particularly
    significant problem in the Galveston Bay area in the 1970s and early 1980s. The formation of the
    Harris-Galveston Subsidence District, which regulates groundwater withdrawal, has helped
    alleviate the problem.

    Texas Coastal Management Program Final EIS    Part II- 43                       August 1996

                                       Table 6

                      NATIONAL FLOOD INSURANCE PROGRAM

                                Status of Communities
                            Within the 19 Coastal Counties

    COUNTY                      NUMBER OF COMMUNITIES         COMMUNITIES NOT
                                DESIGNATED AS FLOODPRONE   PARTICIPATING IN THE NFIP

    Aransas                               3
    Brazoria                             25
    Calhoun                               4
    Cameron                              16                 Town of Rangerville
    Chambers                              6                   Town of Cove
                                                               Old River-Winfree
    Galveston                            15
    Harris                               27
    Jackson                               4
    Jefferson                            11                    City of China
    Kenedy                                1
    Kleberg                               2
    Liberty                              11                   City of Devers
                                                              Town of Kenefick
                                                            City of North Cleveland
    Matagorda                             3
    Nueces                                7
    Orange                                8
    Refugio                               5                Town of San Patricia
    San Patricia                          9
    Victoria                              2
    Willacy                               4

                               TOTAL   163                TOTAL NOT
                                                           PARTICIPATING =      5

     **All CMP coastal county authorities participate in the NFIP and are included in the total number.

           (Data convdeld from Texas Natural Resource Conservation Commrission. NPIP Master status Report 2122194)

                                         111-44

     q. Infrastructure

          By the year 2000, it is estimated that more than 5.3 million persons will live in the coastal
    area (Texas General Land Office, 1992). The Galveston Bay complex ranks first among
    urbanized areas in the state and is the eighth largest in the United States. Twenty percent of the
    total state population lives within the four counties (Chambers, Brazoria, Galveston, and Harris)
    surrounding Galveston Bay (Ditton et al., 1988). The population living directly on the state's
    shoreline will have more than doubled between 1960 and 2010, according to projections by the
    U.S. Department of Commerce (Texas General Land Office, 1992). As the population and the
    accompanying development increase, the demand for support facilities and public works increases
    accordingly. Public water supplies, transportation systems, schools, public buildings, electric and
    gas utilities, sewage, and solid-waste facilities must all meet the needs of expanding coastal
    communities.

     r. Water Development

          Public water supplies come from both surface and groundwater sources. One of the state's
    nine major aquifers is located along the coast. The Gulf Coast aquifer provides over 1.5 million
    acre-feet of water per year (Texas Water Development Board, 1991). The lower coast contains
    large quantities of brackish groundwater which can be made useful for water supplies through
    desalination. The largest industrial desalination plant in the state, located in Texas City, produces
    4 million gallons of fresh water each day (Texas Water Development Board, 1990). Surface water
    comes from the Gulf Coast's primary river systems, which include the Sabine, Neches, Trinity,
    San Jacinto, Brazos, Colorado, Lavaca, Guadalupe, Nueces, and Rio Grande.

         Major impoundments or diversions within the coastal zone are Lake Texana on the Navidad
    River in Jackson County (10,995 surface acres) (Texas Water Commission, 1992), Wallisville
    Lake on the Trinity River in Chambers County (3,800 surface acres) (U.S. Army Corps of
    Engineers, 1991), Lake Houston in Harris County (12,230 surface acres) (Texas Water
    Commission, 1992), and the Colorado River diversion project (diversion of the river into
    Matagorda Bay). Other major impoundments, such as the Falcon Reservoir, occur within 200
    miles of the coast. In addition, several salinity barriers occur in the coastal zone, including
    barriers on Chocolate Bayou, Taylors Bayou, and the Neches River (U.S. Army Corps of
    Engineers, 1991).

         The inflow of fresh water is widely recognized as an essential factor influencing the
    biological productivity of the coastal ecosystem. Some of the functional roles of fresh water
    include dilution of seawater, creation and maintenance of low-salinity nursery habitats for juvenile
    fish and other biota, moderation of water temperatures, a medium for the transport of beneficial
    sediments and nutrients, and transportation of external organic detritus from decaying plant and
    animal tissues into the bay-estuary-lagoon system.

    Texas Coastal Management Program Final EIS    Part 111- 45                      August 1996

          Freshwater inflow needs of bay-estuary-lagoon systems are dynamic, and both quantity and
    seasonal timing are important to maintaining a productive coastal ecosystem. Extended inflow
    conditions that fall below maintenance levels can degrade the ecosystem and result in the loss of
    important nursery areas for the young of economically valuable fish and shellfish, and a reduction
    in the potential for natural assimilation of organic and nutritive wastes produced by municipal,
    industrial, and agricultural activities. Large-scale reductions in fresh water can be produced by
    both meteorological events and human activities. Dramatic reductions in freshwater inflow can
    result from droughts and from dams and associated impoundments on streams and rivers, water
    diversion and control projects, and surface and groundwater withdrawals.

          Major effects on the coastal ecosystem from loss of freshwater inflow due to droughts,
    dams, diversions, or withdrawals include increased salinity of bay-estuary-lagoon waters; reduced
    mixing due to salinity differences and stratification of the water column; penetration of the salt-
    wedge farther upstream, allowing greater intrusion of marine predators, parasites, and diseases;
    saltwater intrusion into coastal groundwater and surface water; diminished supply of nutrients
    from inland sources; diminished supply of sediments to subsiding delta wetlands resulting in the
    conversion of vegetated marshes to open-water areas; loss of economically important seafood
    harvests from coastal fisheries for reasons related to high salinity; reduced food supply; loss of
    nursery habitats; deterioration of salt marshes and seagrass beds under constantly elevated
    salinities; and alteration of littoral drift and nearshore circulation patterns.

     s. Transportation

          Public roadways serve over 3.3 million registered vehicles in the Texas coastal area. Over
    68,000 people use public transportation such as buses, streetcars, or trolleys as a means of
    transportation to and from work (Bureau of the Census, 1990). The state highway system within
    the coastal area is highly developed. Interstate 45 traverses portions of Harris County and
    terminates in Galveston. Interstate IO, linking the Pacific and Atlantic coasts, crosses portions of
    Orange, Jefferson, Chambers, and Harris counties, linking with Interstate 45 in Houston.

          Other major traffic arteries include U.S. Highway 90, which runs parallel to or congruent
    with 1-10 on an east-west route; U.S. 59, which runm west from Houston terminating on the
    Mexican border at Laredo, Texas; and U.S. 77, which originates at the Canadian border, enters the
    state near Dallas/Ft. Worth, and runs parallel to the central and lower Texas coast, linking the
    cities of Victoria, Corpus Christi, Kingsville, and Raymondville before terminating at the
    Mexican border in Brownsville.

          Numerous minor state highways and farm-to-market roads lead from these maj or highways
    to remote areas. The state maintains approximately 6,492 miles (centerline measurement) of
    highways in the coastal area and expended more than $672 million on highway maintenance and
    construction during fiscal year 1992, excluding costs of administrative support for the activities.
    This figure represents approximately 30 percent of statewide expenditures in only eight percent of

    Texas Coastal Management Program Final EIS  -Part III- 46                        August 1996

                 Texas counties (Texas Department of Transportation, 1992). There is one legal international port
                 of entry from Mexico within the coastal zone, at Brownsville in Cameron County.

                       There are six railroads within the coastal area with a combined length of approximately 780
                 miles. Railroads operating within the area include: (1) Missouri-Pacific, (2) Missouri - Kansas -
                 Texas, (3) Atchison, Topeka and Santa Fe, (4) Southern Pacific, (5) Burlington Northern, and (6)
                 Texas Mexican. The only passenger route (AMTRAK) is from Beaumont to Houston and is
                 operated by the National Railroad Passenger Corporation. A Texas High Speed Rail Project has
                 been proposed by the Texas TGV Corporation to connect the cities of Houston, Dallas/Ft.Worth,
                 and San Antonio. The only portion of the coastal area that would be impacted by this project
                 would be northern Harris County. There is one international port of entry by rail from Mexico at
                 the Brownsville B&M bridge.

                       Five major airports are located in the coastal area. Regularly scheduled commercial or
                 commuter flights from these facilities accounted for approximately 12 million enplaned
                 passengers. Twenty-five minor commercial airports and three military airfields are also located in
                 the coastal area (Corps of Engineers, 1993) as well as the National Aeronautics and Space
                 Administration's Johnson Space Center, which was recently designated as operations and planning
                 center for the United States Space Station Program.

                       The construction, maintenance, and operation activities related to highways, railroads, and
                 airports contribute to nonpoint-source pollution as oils and grease are washed into drainage
                 systems and directly or indirectly transported into coastal bays, estuaries, or the Gulf of Mexico,
                 altering water quality. Ditches and drains associated with transportation routes can result in rapid
                 draining of rainwater. The impact of this rapid runoff, combined with increased impervious
                 cover, can greatly reduce water percolation and groundwater recharge. Potential water quality
                 enhancements that can be obtained as surface water runoff passes through shoreline marsh
                 habitats is also lost.

                       The construction of new highways and ancillary facilities can result in filling and/or
                 modification of wetlands, disruption of surface water flow patterns, and alteration of ecosystem
                 dynamics. Elevated roadways, berms, retaining walls, etc., can channel water into barrow ditches
                 or drains which speed nonpoint-source pollution to streams, rivers, and estuaries. Transportation
                 accidents (rail, highway, and navigation) have the potential to discharge liquid cargo directly into
                 the aquatic environment, into wetlands, or into ditches/drains which eventually lead to sensitive
                 habitats. Roadside and trackside fires spread into adjacent areas and impact environments outside
                 of the authorized right-of-way.

                       The perceived economic and sociologic importance of transportation often outweighs
                 environmental considerations in planning for construction techniques, siting, and maintenance
                 operations. A lack of master planning results in individually small, but cumulatively important,
                 environmental impacts from transportation, construction, and maintenance activities.

    I Texas Coastal Management Program Final EIS    Part II- 47                                  August 1996

     t. Public Utilities/Public Facilities

          Public sewer systems serve over 1.8 million housing units along the coast; 229,000 housing
    units use septic tanks or cesspools for sewage disposal (Bureau of the Census, 1990). Municipal
    treatment plants account for 62 percent of the waste discharged to Galveston Bay. In 1990, there
    were 617 plants with municipal wastewater discharge permits in the Houston-Galveston area
    (Hadden and Riggin, 1992). Houston's 69th Street Wastewater Treatment Plant is the largest such
    plant in Texas, capable of treating 200 million gallons of sewage every day (Texas Water
    Development Board, 1991).

          Electric generating facilities provide 776,396 housing units in the coastal area with
    electricity as their primary' source of heat, while gas utilities fuel 893,383 housing units. An
    additional 5,032 housing units are reported to use wood as their primary source of heating fuel
    (Bureau of the Census, 1990).

          The public medical research centers in the Gulf Coast region are of both national and
    international scope. The University of Texas Medical Branch at Galveston has served as the
    state's largest university hospital complex and includes nine hospitals (Texas Comptroller of
    Public Accounts, 1992). Correctional institutions provide housing for 24,1 81 persons. Juvenile
    institutions house 1,041 children.

          Government employment makes up a smaller portion of the employment base on the Gulf
    Coast than in the state as a whole. Still, the region has significant government employment. In
    1990, government office space housed 302,848 local, state, and Federal workers (Bureau of the
    Census, 1990).

          Although public facilities and public works provide many services and benefits to coastal
    communities, their construction, operation, and maintenance are placing increased pressure on the
    coastal environment. The construction of public buildings for schools, office space, and
    institutions can contribute to the filling of valuable wetland habitats and to increased pollution
    from stormwater and sediment runoff, septic systems, and sewage.

     u. Agriculture

          Agricultural production, processing, transportation, and marketing together make up the
    state's second largest economic sector, accounting for 20 percent of the state's employment and
    $75 billion in annual economic impact (Hightower, 1990). The economic multiplier for
    agriculture is the state's second largest, meaning that agriculture adds proportionately more value
    to the state's economy than all other industries except construction. Because agricultural
    production and processing are so widespread in Texas, the benefits of agriculture to the economy
    reach most of the state's households directly or indirectly.

    Texas Coastal Management Program Final EIS    Part III- 48                       August 1996

          Every dollar earned by a Texas farmer or rancher adds another $2.16 to the state's economy
    as it passes from one economic transaction to another. The 20 counties in the coastal area
    comprise a total of 11 million acres, 60 percent of which is currently in agricultural production
    (i.e., cropland, rangeland, or timber). Annual income from agricultural production in these
    counties exceeds $1 billion (Texas Agricultural Statistics Service, 1985).

          Agriculture and related activities conflict with other uses and activities. Nonpoint-source
    pollution, point-source pollution, and soil erosion can affect the water quality of rivers, bays,
    estuaries, and aquifers.

     v. Aquaculture

          The development of aquaculture in Texas augments natural aquatic food supplies and
    provides alternatives to more traditional agricultural products. Aquaculture is simply defined as
    underwater agriculture or technically defined as the rearing of aquatic organisms under controlled
    conditions. Texas cultures a wide variety of aquaculture species. In terms of value, the top five
    aquaculture industries are: catfish at $2.9 million; aquatic plants at $2.0 million; penaeid shrimp
    at $1.9 million; crawfish at $1.8 million; and sportfish at $600,000.

          According to recent studies, the total value of Texas aquaculture production today is
    approximately $20 million per year. Based on an annual increase often percent, by the year 2000
    the value should be close to $35 million. In 1991, Texas accounted for approximately two-percent
    of catfish acreage nationwide and produced approximately two percent of total sales. However,
    Texas produced more than 3.8 million pounds of marine and freshwater shrimp worth nearly $11
    million, more shrimp than any other state.

          While Texas may have the potential to become a leader in aquaculture, that promise has not
    yet been realized. However, a number of signals suggest that the demand for aquaculture products
    will continue to increase steadily and that Texas has the natural resources to become a major
    supplier of aquaculture products and services. In time, as more aquaculture facilities are
    permitted, care must be taken to ensure that they do not adversely impact natural ecosystems and
    that exotic species are not introduced into the aquatic system. Aquacultural producers must use
    water carefully and make every effort to clean up the wastewater that their operations produce.

     w. Coastal Tourism and Recreation

          Recreational water resources in Texas consist of freshwater lakes, rivers, and streams, and
    saltwater bays, estuaries, and the Gulf. It is estimated that there are over 3 million surface acres of
    both fresh and salt water in Texas. Of this total, there are approximately 1.2 million surface acres
    of fresh water suitable for boating, fishing, and waterskiing (Texas Outdoor Recreation Plan,
    1990). For saltwater recreation, approximately 3.9 million square yards are designated for
    swimming. Water is important not only for water-based activities, but as a focus for parks and a
    variety of other activities, such as camping, picnicking, hiking, and nature study.

    Texas Coastal Management Program Final EIS    Part II- 49                        August 1996

          The Texas Gulf Coast is a major state and national recreational and tourism attraction.
    Beaches, bays, and estuaries sustain saltwater fishing, boating, swimming, beachcombing, and a
    host of associated activities. Among the more important recreational attractions and resources are
    Sea Rim, Goose Island, Galveston Island, and Mustang Island state parks; Padre Island National
    Seashore; and state and Federal wildlife refuges.

          Community leaders, government officials, and parks and recreation professionals are
    beginning to appreciate the economic value of tourism. During the economic downturn of the
    mid-1I980s, community leaders and economic development planners began to capitalize on the
    potential of recreational resources in their areas. Recreation and tourism can create jobs,
    encourage a more diversified economy, and thus help moderate recessions.

          The U.S. Travel Data Center estimated that the travel industry in Texas, which includes all
    trips away from home of I100 miles or more, generated $17.2 billion in gross business receipts in
    1986. In the same year, the industry generated $3.8 billion in payrolls, $606 million in state taxes,
    and $392 million in local taxes. A study titled " 1983 Outdoor Recreation Trip Expenditures in
    Texas," conducted by the TPWD, indicated that Texans spent nearly $9.3 billion on recreation
    trips (in-town and out-of-town) in Texas for twenty outdoor recreation activities. Sightseeing and
    driving for pleasure topped the list in travel expenditures with over $2 billion. Another TPWD
    study, " 1987 Texas State Park Economic Impact Assessment," indicated that the economic impact
    to the state of Texas of expenditures by visitors to 92 state park sites was close to half a billion
    dollars per year.

          Towns near or adjacent to high-quality natural resource areas such as national and state
    parks, forests, reservoirs, waterways, and the Gulf Coast receive significant economic impacts
    from expenditures by outdoor recreationists. Resource attractions combined with mild winters
    allow communities in the Rio Grande Valley to benefit from the spending of "winter Texans."

          While some communities have been very effective in developing recreational resources and
    attracting tourists, others have not taken advantage of these opportunities. Communities that
    develop industrial parks to attract industry often neglect outdoor recreational resources that could
    increase their attractiveness to industry, bring in tourist dollars, and improve the quality of life for
    residents and visitors. Recreational resources are sometimes sacrificed to economic development
    rather thani used to complement such development.

          The Texas coast attracts both in- and out-of-state visitors who enjoy beach activities,
    saltwater fishing and boating, and bird-watching. The economies of many coastal communities
    rely heavily on recreation and tourism, yet other valuable coastal economic activities, such as
    shipping, oil development, and land development, can have detrimental impacts on the resources
    that support recreation-based tourism.

          Marinas provide important recreational opportunities but can have significant adverse
    environmental impacts, depending on their location, design, services offered, and number and

    Texas Coastal Management Program Final EIS    Part 11-5so                        August 1996

    type of boats served. Environmental impacts from coastal marina construction and operation may
    be temporary or long-term. Adverse impacts result from dredging and dredged material disposal,
    poor design and placement of shoreline and protective structures, wastewater discharge and
    stormwater runoff, and boat operation and maintenance.

          Hotels, condominiums, and beach homes provide places for coastal visitors to stay, but
    placing those structures in dune areas can contribute to beach erosion where dune sand is
    unavailable for replenishment. Developments bait side by side can limit beach access for local
    recreationists and day users. Dunes may be damaged by off-road vehicles and even by foot
    traffic.

         Marine debris creates serious problems for both recreationists and beach managers. It is
    aesthetically unpleasant, and coastal communities spend thousands of dollars cleaning their
    beaches every year. Irresponsible coastal residents and visitors contribute to the litter problem
    and create safety hazards when they leave glass containers and other debris behind. In the water,
    marine debris can be attributed to wastes from merchant vessels, commercial fishing vessels,
    cruise ships, military vessels, offshore drilling operations, and recreational boaters. Currents
    make Gulf beaches the victims of an international waste problem.

         The Gulf, bays, marshes, and wetlands are coastal resources with many recreational values.
    The direct use of the waters by fishermen, boaters, waterfowl hunters, and birders is obvious.
    These environments also serve as habitats, breeding grounds, and nurseries for the species which
    are critical to the success of fishing, marsh hunting, and wildlife observation.

    Texas Coastal Management Program Final EIS    Part III- 51                       August 1996

    D. Environmental Conseauences

    1. Introduction

          The Federal action is the approval of the TCMP as having met the requirements of the
    CZMA. This action would have several direct and indirect positive consequences for the
    environment and resource users. The direct effects of approval include: (1) provision of Federal
    financial assistance under the CZMA to assist with program implementation (�306 funds), low-
    cost construction projects (�306A funds), and program enhancement (�309 funds); (2) Federal
    consistency provisions pursuant to the CZMA becoming operational (CZMA �307); (3)
    requirements for state consideration of the national interest in energy and other major facilities
    and resources of national importance; and (4) meeting one of the eligibility requirements in order
    for entities within Texas to receive a deepwater port license from the U.S. Coast Guard to
    construct and operate a deepwater port off the Texas coast. The indirect effects of Federal
    approval include the implementation of specific policies, procedures and programs that make up
    the TCMP.

          Both the direct and indirect effects of program approval should have significant positive
    environmental impacts within the Texas coastal zone, particularly on coastal natural resources and
    uses.

          The TCMP is consistent with the CZMA requirements, which are in turn consistent with the
    environmental considerations underlying NEPA decision-making. This should ensure that state
    and national environmental concerns and considerations will become part of state and Federal
    decision-making processes with a particular focus on land and water uses and coastal resources
    within the Texas coastal zone.

    2. Direct Effects

          The direct effects of Federal approval should yield positive impacts to coastal natural
    resources. The TCMP contains policies designed to mitigate adverse impacts on coastal natural
    resources and �306 funds should enhance Texas' financial ability to implement those policies.
    Specifically, the �306 funds should help achieve the program goals of preserving, enhancing, or
    restoring the diversity, quality, quantity, functions, and values of coastal natural resources while
    ensuring economic development and multiple human uses of the Texas coastal zone. In terms of
    the program policies, �306 funds can help Texas to: (1) administer, monitor, and enforce the
    coastal policies; (2) educate the public on the coastal policies and why they are necessary (e.g., the
    impacts from coastal processes and coastal activities and measures to mitigate impacts); (3)
    provide assistance to create, enhance, or restore coastal resources, or to help permit applicants
    plan early in the development process to avoid, minimize, and compensate for impacts to coastal
    resources; and (4) provide training to state and local government decision-makers to better
    administer policies.

    Texas Coastal Management Program Final EIS    Part HI- 52                        August 1996

          These funds will also enhance the State's ability to respond to emerging coastal issues and
    enhance and improve the application of program policies by providing personnel or resources to
    develop better information on coastal processes and impacts from activities, and to evaluate
    program effectiveness. Section 306A funds will allow Texas to undertake low-cost construction
    projects and to preserve, enhance, or restore important coastal resources. It has been NOAA's
    experience that states can successfully use �306A funds as seed monies to leverage other Federal,
    state, and local funds for projects. Section 309 funds will allow Texas to continue to enhance its
    approved resource protection policies and procedures to address emerging priority needs related
    to: (1) protecting, restoring, or enhancing the existing coastal wetlands resource base or creating
    new coastal wetlands; (2) developing and adopting procedures to assess, consider, and control
    cumulative and secondary impacts of coastal growth and development; (3) reducing marine
    debris; and (4) planning for the use of ocean resources.

          The exercise of Federal consistency authority and the use of Federal funding to assist with
    Federal consistency reviews should result in significant positive impacts to coastal natural
    resources. Management of those resources and the human activities that impact them will become
    both more efficient and more effective because Federal agency programs will be better
    coordinated with state and local programs through the TCMP. After Federal approval of the
    TCMIP, direct Federal activities and development projects, activities requiring Federal licenses
    and permits, OCS plans of exploration and production, and activities supported by Federal
    funding must comply with the State's enforceable coastal policies, as provided for in section 307
    of the CZMA. This will give Texas the ability to ensure that Federal navigation and flood control
    projects, dredge and fill permits, transportation projects, military installations, etc. do not result in
    unnecessary impacts to coastal resources and that limited public resources are not expended
    resolving needless conflicts or duplication of effort because of poor coordination with state or
    local programs. This should provide substantial positive institutional impacts as Federal agency
    decision-making will be better coordinated and aligned with state and local priorities. It will also
    ensure continued consideration of NEPA/CZMAITCMP concerns by the Federal government.

          The development of one or more deepwater ports would have substantial positive impacts
    on a wide array of coastal natural resources such as wetlands, estuaries, and beaches. The
    construction of deepwater port facilities would reduce both tanker traffic in Texas' bays and
    estuaries and the frequency of lightering operations in the Gulf of Mexico, thereby reducing the
    risk of major and chronic oil spills. However, pursuant to the Deepwater Port Act of 1974 as
    amended (33 U.S.C.S. � 1503), interested parties such as the Corpus Christi and the Houston port
    authorities cannot receive a deepwater port license from the U.S. Coast Guard until Texas has a
    Federally approved coastal management program. Therefore, program approval is critical to these
    communities.

          The provision of Federal coastal zone management funds should also have positive socio-
    economic and institutional impacts. Section 306 and Section 309 funds can be used to enhance
    administration and improve compliance with or improve coastal natural resource policies, which
    in turn should enhance the sustainability of economies dependent on maintaining renewable

    Texas Coastal Management Programn Final EIS    Part III- 53                      August 1996

    coastal resources and improve the environmental quality of the coastal zone. Section 306 funds          4
    can also be used to benefit the tourism industry by funding feasibility studies and other state and
    local planning to develop an ecotourism industry. Texas has already stated an intent to use these
    funds to refine and improve the regulatory processes by providing resources or personnel for
    developing joint permit applications, enhancing preliminary consistency reviews, and providing
    informnation or technical assistance to applicants to expedite the permitting process in order to
    provide for more efficient and predictable government decision-making.

          Section 306 and Section 306A funds will also benefit coastal economies by enhancing state
    efforts to revitalize deteriorating and under-utilized urban waterfronts and ports by providing
    personnel or resources to undertake planning and feasibility studies for these areas as well as
    providing low-cost construction funds to undertake actual repairs or reconstruction. Often, �306A
    funds are used to leverage additional Federal, state or local funding to complete these
    redevelopment projects. Section 306A funds can also be used to improve Texas' efforts to
    enhance access to public beaches and other public coastal areas. Possible projects include
    provision of dune walkovers, boat ramps, and off-beach parking. Adverse environmental impacts
    from these construction projects are avoided or minimized through NOAA requirements for
    completion of environmental assessments prior to approving these projects.

          Section 309 funds can be used to enhance policies and procedures for improving the
    sustainability of coastal economies including : (1) preventing or significantly reducing threats to
    life and property by eliminating development and redevelopment in high hazard areas and
    managing development in other hazard areas; (2) attaining increased opportunities for public
    access; and (3) facilitating the siting of energy facilities in an environmentally responsible
    manner.

          With the approval of the TCMP, Texas will maintain procedures to ensure that the siting of
    energy and other facilities of national interest are given adequate consideration by state and local
    governments. The requirement does not compel states to propose a program that accommodates
    certain types of facilities. Rather it works to assure that energy and other facilities of national
    interest are not arbitrarily excluded or unreasonably restricted under the program. It also requires
    states to take into consideration coastal natural resources of national interest in their decision-
    making so that these important coastal natural resources are not unnecessarily destroyed or
    degraded.

    2. Indirect Effects

         The TCMP seeks to conserve, protect, develop, and where feasible, restore the coastal
    natural resource areas within the State's coastal zone and to encourage multiple uses of those
    resources that are consistent with the goals of the TCMP and the CZMA. Since the TCMIP will be
    implemented in conjunction with many other Federal, state, and local government programs in
    social and economic systems that are constantly changing, the description of the potential socio-
    economic impacts of the program are necessarily general. The TCMP anticipates using future

    Texas Coastal Management Program Final EIS    Part 111- 54                       August 1996

               information on socio-economic needs and coastal natural resources developed from the program
               to provide state and local governments with improved decision-making processes for managing
               coastal land and water uses, siting of major facilities, and generally providing increased
               predictability about how uses may occur in the coastal zone.

                     The underlying premise of the TCMP is that local, state, and Federal government decision-
               makers need to understand the dynamics of both the environmental and socio-economic systems
               of the coastal zone and balance the needs of the two through consistent policy decisions. The
               TCMP anticipates cooperatively planning for and managing the uses and natural resources of the
               state so that the its citizens can best determine how both to conserve valuable natural resources
               and accommodate the needs of an expanding population. The program seeks to conserve key
               ecological areas, both for their intrinsic and aesthetic value and because they are a significant part
               of the Texas coast's economic infrastructure. This is achieved by ensuring that industry and
               development meet consistent, predictable performance standards that do not prohibit development
              of ports, navigation channels, oil and gas, and residential or commercial real estate, but avoid,
                  mnmze, and remedy their adverse impacts on coastal natural resources.

                    Achievement of this balance involves trade-offs that include both positive and negative
              effects. Most of the TCMP's performance standards are already in place in the form of policies or
              rules applied through existing regulatory or natural resource management programs. Continued
              application of these existing standards will have a neutral effect. However, the TCMP will
              coordinate these existing programs so that limited public resources are used more efficiently and
              more effectively. This will result in net positive environmental impacts.

                      Since the TCMP is based largely on existing standards, the potential for increased cost to
              the industries and developments subject to these policies is low. To the extent any increased costs
              are realized because of more effective application of these standards, they should generally be
              one-time, minimal costs. Moreover, the increased costs should be offset by and be commensurate
              with broader, longer term socio-economiic benefits to be realized either by taxpayers or other
              coastal industries, users, or properties. These broader, longer-term benefits would include the
              reduction of public expenditures for pollution cleanup or storm damage, the continued economic
              productivity of fisheries, wildlife, beaches, forests, other renewable resources, and the
              conservation of the natural heritage of the coastal zone.

                    Some lost expectations may occur. For example, some coastal property may be limited to a
              use that generates a reasonable rate of economic return, rather than the use that would generate the
              highest rate of return, if the latter would significantly degrade coastal natural resources or put
              public or private property in jeopardy from erosion, hurricanes, or other coastal hazards. Because
              the policies effectively balance different interests, these cases should be limited. Moreover, socio-
              economic gains elsewhere should offset any reduction in rate of return from use of the property.

                    Lost expectations or one-time, minimal cost to industries or developments are also offset by
              other broader, longer-term benefits that these same industries and developments should realize

    0         ~~~Texas Coastal Management Program Final EIS    part 111- 55                    August 1996

    from better planning and management through the TCMP. These broader, longer-term benefits
    would include the reduced in the cost of planning and permitting new development through the
    streamlining of government decision-making, protection of property and infrastructure from
    erosion and other coastal hazards through the preservation of beaches and shorelines, preservation
    of environmental amenities, less pollution, higher quality development, better utilization of
     "sunk" costs and investments, better fit of supply and demand, greater awareness of local needs
    and opportunities, and less uncertainty regarding future development patterns.

          In a study conducted by the National Coastal Resources Research and Development
    Institute in conjunction with the University of North Carolina's Center for Urban and Regional
    Studies entitled, "Valuing Coastal Zone Management" (1990), the authors found that in 22 of 24
    states in the survey with coastal management programs, coastal Gross National Product (GNP)
    increased relative to CZMA expenditures, and that each $1 of coastal zone management spending
    was associated with an increase of as much as $37 in coastal GNP due to coastal dependent
    activities, $1.50 in coastal GNP due to coastal-linked activities, and up to $650 in coastal GNP
    due to coastal service activities. While not concluding that coastal zone program expenditures
    caused a specific increase in coastal GNP, the study did conclude that at the least, "the statistical
    results suggest a positive relationship between dynamic coastal zone programs and dynamic
    coastal economies."

          Potential economic benefits can include higher sales, greater demand for facilities and
    services, increased property values, and heightened satisfaction with the physical environment.
    Prudent coastal management, therefore, results in a balance between conservation of irreplaceable0
    or difficult to replace natural resources and economic needs like jobs, housing, recreation, and
    commerce. The TCMP policies that enhance protection of coastal resources and improve bay and
    estuarine water quality will provide both short- and long-term enhancement of commercial and
    recreational fishing economies dependent on these renewable resources, as well as provide the
    foundation for long-term profitability for coastal tourism, ecotourism, recreation, and other
    industries dependent on the continuance and enhancement of environmental amenities such as
    clean water, clean beaches, and healthy wetlands. As a result, the implementation of the TCMP
    should foster a more diverse and stable economic base.

          Some of the TCMP's socio-economic impacts are institutional in nature. Overall, these
    impacts are positive. Developers and conservationists are both calling for more predictability and
    consistency in land and water use decisions. Without the coordination provided by the TCMP,
    duplication and conflict among numerous Federal, state, and local authorities increase the
    uncertainty about the nature and timing of development that will be permitted in the future.
    Cooperation among all levels of government is an objective and requirement of both the TCMP
    and CZMA. The TCMP's uniform coastal policies, permit assistance program, and consistency
    review of Federal agency decisions and state agency rulemaking and permitting provide an
    enhanced degree of predictability and consistency, while allowing adequate flexibility to address
    unique circumstances or emerging issues. The establishment of the Coastal Coordination Council,
    the Executive Committee, and other TCMP entities to apply the uniform coastal policies will

    Texas Coastal Management Program Final EIS    Part III- 56                      August 1996

     considerably improve fragmented and overlapping management of coastal resources, enhance
       effciecyand provide added predictability and consistency to decision-making.
          Implementation of the TCMP should result in a net reduction in government costs. There
    may be some added cost to government to implement the program. However, these should be
    minimal because the TCMP essentially coordinates existing programs and policies rather than
    creating new ones. Additional costs could be incurred by providing increased permit assistance to
    applicants or assistance to local governments for implementing beach and dune policies. These
    costs can be offset by �306 funds if the state chooses to do so.

          On the other hand, local, state, and Federal expenditures of tax dollars for disaster relief or
    replacement of infrastructure resulting from damages from coastal flooding, erosion and wind
    damage should be reduced. Reductions in expenditures should accrue from enhanced protection
    of natural protective features as a result of the implementation of policies related to dune
    protection and construction on or adjacent to beaches. The TCMP should also reduce the number
    of structures exposed to coastal hazards through implementation of policies related to the
    elevation and flood proofing of structures in critical dune areas, restrictions on development of
    some infrastructure on barrier islands, restrictions on private shore-hardening structures and
    consideration of impacts on down drift beaches and shorelines from the construction of other
    navigation and shore-hardening structures.

          Implementation of the TCMIP should also result in positive impacts regarding public input
    into government decision-making. The public involvement in the development of the TCMP has
    been extensive. In addition, the program provides for substantial ongoing public involvement in
    program implementation through the state and Federal consistency review procedures, existing
    state procedures, and the expected establishment of an advisory council. Public participation in
    major program decisions and in general program implementation, through public notice and
    comment provisions, public hearings, as well as the establishment of a public advisory committee
    is provided.

         Implementation of the TCMP should result in net positive impacts on certain coastal natural
    resources also. In addition to improved government coordination, significant positive short- and
    long-term benefits to coastal resources should result from implementation of enhanced state
    policies applicable to wetlands and other aquatic resources and beaches and dunes.
    Implementation of the program will also result in moderate to significant positive impacts to
    submerged lands and benthic organisms, water quality and circulation patterns in coastal bays and
    estuaries, and coastal hazard areas.

         The impacts are expected to be positive because, like NEPA, these policies generally call
    for the avoidance of adverse impacts where possible, the minimization of adverse impacts in all
    cases, and remediation of or compensation for any unavoidable damage to important coastal
    natural resources. These TCM[P policies that deal with protection of wetlands and other aquatic

    Texas Coastal Management Program Final EIS    Part 111- 57                      August 1996

    resources include the critical areas policy, the dredging and dredged material placement policy,
    and the policy on development in the beach/dune system.

          The critical areas and dredging policies will result in net positive impacts on critical areas,
    which are coastal wetlands, submerged aquatic vegetation, tidal sand and mud flats, oyster reefs,
    and hard substrate reefs. These policies include an overall policy of "no net loss" of critical areas
    through requirements to restrict impacts from non-water dependent uses, prohibit "significant"
    adverse impacts, require compensatory mitigation for unavoidable impacts, and allowing the
    development of mitigation banks.

          The TCMvP dredging and dredged material placement policy goes on to establish a
    sequential priority system for the disposal of dredged material. The preferred sequence is: (1) the
    beneficial use of dredged material, (2) contained upland disposal, (3) other contained disposal,
    and (4) open-water disposal in non-productive water bottoms. This policy should reduce the
    amount of dredged material that traditionally has been disposed of in unconfined, open-water sites
    and moreover should increase the extent of some coastal habitats.

          While the implementation of the TCMP will not halt al adverse impacts to wetlands and
    other critical areas, it establishes a policy framework for more effectively ensuring that any
    adverse impacts are minimal, limited in scope, short-term in duration, and offset by other positive
    environmental impacts. Additionally, the policies could result in an increase in wetlands from the
    beneficial use of dredged materials. Application of these policies may result in an incremental
    increase in development costs. However, the TCMP includes provisions and processes to avoid i
    disruptions from those costs. For example, application of the dredging policy to dredging of
    federally maintained waterways is governed by the October 1994 Memorandum of Agreement
    between the Council and the Corps. This agreement provides that changes in dredging practices
    are not implemented until there has been an opportunity to secure any additional funding needed
    to implement them.

          The TCMP policies will also enhance the protection of the beach dune system. The TCMvP
    policies require activities in critical dune areas to avoid and minimize adverse impacts to critical
    dune systems and require creation or restoration of dunes for any unavoidable adverse impacts. In
    these areas, the policies prohibit activities that would result in material damage to dunes or dune
    vegetation. In addition the policies will mitigate activities that result in coastal erosion and loss of
    beaches by prohibiting private parties from constructing seawalls and grains on the beach or
    within 200 feet of the line of vegetation in critical dune areas.

         As stated above, the dredging and dredged material placement policy includes provision on
    beneficial use of dredged material. A high priority for beneficial use is restoration or protection of
    coastal shores and beaches. This will protect coastal property from erosion and storms. This, in
    turn, maintains the value of coastal property, enhances coastal tourism, and preserves the integrity
    of significant elements of the coastal economy.

    Texas Coastal Management Program Final EIS    Part 111- 58                      August 1996

    E.   Unavoidable Adverse Environmental Effects

          The probable effects of TCMP implementation will, on the whole, be environmentally
    beneficial. With or without the program, coastal development will occur, some of which could
    lead to adverse environmental impacts on coastal habitats and ecosystems. However, with the
    program in place, Texas can seek to balance the conservation of coastal resources with the
    recognized need for rational economic growth.

          With or without the program, adverse impacts associated with the siting of maj or facilities
    for purposes of defense, transportation, and energy needs in which both the state and Federal
    governments have an interest, will continue. It is important to note, however, that under the
    TCMP and related Federal laws (e.g., National Environmental Policy Act), the State and Federal
    agencies responsible for such projects will evaluate the projects for their impacts on the natural
    coastal environment. Required in that evaluation is the balanced consideration of the national
    interest, local economy, and coastal natural resources.

    Texas Coastal Management Program Final EIS    Part 11- 59                      August 1996

    F.   RelationshiD between Short-Term Uses of the Environment and the Maintenance and
          Enhancement of Lorng-Term Productivitv

          Approval of the TCNVI will likely restrict some local, short-term uses of the environment.
    However, it will also provide long-term assurance that the natural resources and benefits provided
    by the Texas coast will be available for future use and enjoyment by more effectively
    administering existing resource protection laws.

          The TCMP recognizes that, in the short term, some coastal-dependent developments have
    adverse consequences on coastal resources, but that they may still have to be located in the coastal
    zone to protect the inland environment as well as help provide for orderly economic development
    and meet the national interest. However, the program policies will, in most cases, allow Texas to
    make development decisions that avoid where possible, minimize, and in some cases compensate
    for these adverse impacts.

          Regarding the long-term use of the environment, the TCMI recognizes the coastal zone as
    a delicately balanced ecosystem; establishes a process of balanced management of coastal
    resources; allows growth to continue while protecting key resources; and provides a framework
    which can protect regional, state and national interests by assuring the maintenance of the
    long-term productivity and economic vitality of coastal resources necessary for the well-being of
    the public. Beneficial changes will Riely promote avoidance of long-term costs to the public
    and a diminished quality of life resulting from the misuse of coastal resources.

    Texas Coastal Management Program Final EIS    Part 11- 60                       August 1996

    G. Irreversible and Irretrievable Commitments of Resources

          The only irretrievable or irreversible commitment of resources that will result directly from
    the approval of the Texas program is the commitment of state and Federal funds and personnel for
    the purpose of achieving the goals and objectives of the program. It is presumed that irretrievable
    and irreversible commitments of economic and environmental resources will occur during the
    implementation of the Texas program. This program is designed to balance the need for
    development with the need for the protection and enhancement of coastal environmental resources
    by avoiding, minimizing and mitigating the consequences of coastal development on resources
    such as wetlands and shallow water marine habitats.

          The program ensures that any such proposed activities which commit coastal resources are
    subjected to as comprehensive a review as individual actions and as actions contributing to the
    cumulative impacts taking place on coastal resources. Such review will ensure that those
    irretrievable and irreversible commitments of resources which are undertaken under the TCMP are
    made with full awareness of the consequences of those commitments.

    Texas Coastal Management Program Final EIS    Part III- 61                    August 1996