Texas Administrative Code › Title 31 - NATURAL RESOURCES AND CONSERVATION › Part 1 - GENERAL LAND OFFICE › Chapter 26 - COASTAL MANAGEMENT PROGRAM › Subchapter B - GOALS AND POLICIES › Section 26.23 - Policies for Development in Critical Areas

Current through Reg. 49, No. 28; July 12, 2024
(a) Dredging and construction of structures
				  in, or the discharge of dredged or fill material into, critical areas shall
				  comply with the policies in this section. In implementing this section,
				  cumulative and secondary adverse effects of these activities will be
				  considered.
(1) The policies in this section
				  shall be applied in a manner consistent with the goal of achieving no net loss
				  of critical area functions and values.
(2) Persons proposing development in critical
				  areas shall demonstrate that no practicable alternative with fewer adverse
				  effects is available.
(3) In
				  evaluating practicable alternatives, the following sequence shall be applied:
(A) Adverse effects on critical areas shall
				  be avoided to the greatest extent practicable.
(B) Unavoidable adverse effects shall be
				  minimized to the greatest extent practicable by limiting the degree or
				  magnitude of the activity and its implementation.
(C) Appropriate and practicable compensatory
				  mitigation shall be required to the greatest extent practicable for all adverse
				  effects that cannot be avoided or minimized.
(4) 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:
(A) on-site, in-kind;
(B) off-site, in-kind;
(C) on-site, out-of-kind; and
(D) off-site, out-of-kind.
(5) 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.
(6) 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. While 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.
(7) Development in critical areas shall not
				  be authorized if significant degradation of critical areas will occur.
				  Significant degradation occurs if:
(A) 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;
(B) the activity will cause
				  or contribute, after consideration of dilution and dispersion, to violation of
				  any applicable surface water quality standards established under §26.21 of
				  this title (relating to Policies for Discharge of Municipal and Industrial
				  Wastewater to Coastal Waters);
(C)
				  the activity violates any applicable toxic effluent standard or prohibition
				  established under §26.21 of this title;
(D) 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
(E) 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 subsections (c) and (d) of this section,
				  the activity will, individually or collectively, cause or contribute to
				  significant adverse effects on:
(i) human
				  health and welfare, including effects on water supplies, plankton, benthos,
				  fish, shellfish, wildlife, and consumption of fish and wildlife;
(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;
(iii) 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.