(a) Local government certification of beachfront construction. This section provides the standards local governments shall follow when preparing that portion of the dune protection and beach access plan specifically related to issuing or conditioning beachfront construction certificates.      
        (1) In general, within its jurisdiction, a local government shall not allow diminution of the size of public beaches and shall preserve and enhance public access between public beaches and public roads lying landward. A local government certification shall consist of one of two affirmative findings: an affirmative finding by a local government that the proposed construction is consistent with the beach access portion of a local government's dune protection and beach access plan and does not encroach upon the public beach, nor does it interfere with, or otherwise restrict, the public's right to use and have access to and from the public beach; or an affirmative finding that the proposed construction is inconsistent with the beach access portion of a local government's dune protection and beach access plan. The beach access portion of the local government's dune protection and beach access plan shall provide that beachfront construction will not adversely affect or allow encroachments upon the public beach or interfere with or otherwise impair the public's right to use and have access to and from the public beach.       
        (2) No person shall initiate or perform construction in violation of Texas Natural Resources Code, §61.013 or this Chapter.       
      (b) Prohibition of certification. Local governments shall not issue a certificate authorizing beachfront construction if the local government determines that the construction:      
        (1) reduces the size of the public beach in any manner;       
        (2) closes or otherwise impairs any existing public beach access point unless the local government simultaneously provides or requires the permittee to provide equivalent or better public access; or       
        (3) includes a proposal to construct a concrete slab or other impervious surfaces within 200 feet of the line of vegetation or within the eroding area boundary (if such a boundary is established in the local beach/dune plan), whichever distance is greater. Local governments may authorize construction of a concrete slab or other impervious surfaces beneath the footprint of a habitable structure elevated on pilings provided the concrete slab or impervious surface will not extend beyond the footprint of the structure and will not be structurally attached to the building's foundation. Local governments shall not authorize the construction, outside the footprint of a habitable structure, of a concrete slab or other impervious surface whose area exceeds 5.0% of the footprint of the habitable structure. Permeable materials such as brick pavers, limestone, or gravel may be used to construct driveways or parking areas.       
      (c) Encroachments on public beaches.      
        (1) Prohibition of construction on the public beach. Except as provided in §15.11 (relating to Repairs to Certain Houses Located Seaward of the Boundary of the Public Beach), a local government is prohibited from issuing a certificate authorizing any person to undertake any construction on the public beach or any construction that encroaches in whole or in part on the public beach. This prohibition does not prevent the approval of man-made vegetated mounds and dune walkovers under a properly issued dune protection permit and beachfront construction certificate. Any issuance or approval of a permit, certificate, or any other instrument contrary to this subsection is void.       
        (2) Construction landward of the public beach. Except as provided in §15.11, local governments shall not issue any beachfront construction certificate authorizing construction landward of the public beach that functionally supports or depends on, or is otherwise related to, proposed or existing structures that encroach on the public beach, regardless of whether the encroaching structure is on land that was previously landward of the public beach.       
      (d) Dedication of new beach access points.      
        (1) Pursuant to the authority provided in the Open Beaches Act, §61.015(g), and as a condition of beachfront construction certification as to consistency with a local government's plan, a local government shall require a permittee to dedicate to the public new public beach access or parking area(s), where necessary, for consistency with the beach access and use, vehicular control, or beach user fee provisions of the pertinent state-approved dune protection and beach access plan. Such provisions shall incorporate the standards for pedestrian and vehicular access established in §15.7 of this title (relating to Local Government Management of the Public Beach).       
        (2) A local government shall require a permittee to dedicate an access area if it issues a certificate allowing a permittee to conduct activities which will impair access to and from the beach in any manner. Such a dedicated access area shall provide access equivalent to or better than the access impaired by the permittee's activity and shall be consistent with the pertinent provisions regarding beach access and use, vehicular controls.       
     Source Note:        The provisions of this §15.5 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996, 21 TexReg 3004; amended to be effective February 28, 2000, 25 TexReg 1713; amended to be effective October 21, 2003, 28 TexReg 9075; amended to be effective August 30, 2006, 31 TexReg 6777; amended to be effective May 8, 2023, 48 TexReg 2343