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Perspectives
Texas Development
Coastal Development and the ASBPA Texas Chapter Meeting February 25
February 23, 2009
Dear Commissioner Patterson,
I have spoken with you and written to you before on coastal issues. Please accept the following thoughts from me personally, as a beach user since 1958, and not in my semi-official capacity as a member of the Nueces County Beach Management Advisory Committee since 2003. I believe Commr. Chuck Cazalas of Nueces County forwarded you some of my remarks to him last week. He and I shared your Beach and Dune Stewardship Award presented in Galveston October 2007.
The ASBPA meeting in Austin on Wednesday, February 25, will bring landowners and lobbyists to meet you and your staff. Afterward, the Texas chapter members will meet with coastal legislators. You have a chance, at this meeting, to educate and lead in a way that considers the good of all Texans in setting and carrying out coastal development policy. I respectfully request your attention to the following ideas.
First, Hurricanes Dolly and Ike are a further portent of things to come. After seeing Rita and Katrina, the damages were not surprising. However, the vast losses to Texas property resulted from past coastal development policies. The losses of these past few years have a secondary effect. The insurance companies are getting more reluctant to insure against rising water and high wind damages. The cost of insurance has skyrocketed. Senator Jackson has fought to control the cost of coastal insurance in Texas, but irresponsible development practices provide strong ammunition to the non-coastal legislators in Texas to refuse to share in the "bailout" of developments place in harm's way.
Second, the losses suffered in Galveston's west end and in South Padre were much greater because the Dune Protection Act and the GLO's regulations were not followed. The GLO's regulations have long been modeled on the U.S. Army Corps of Engineers regulations protecting wetlands, the avoidance-minimization-mitigation sequence and the assessment of a wide variety of potential "impacts" from the proposed development activity. The USACE looks at wetlands and requires avoidance. In contrast, the GLO has historically been unwilling to apply that stricter standard, despite the language of its regulations. Far too often, in practice the GLO in past years has ended up looks at critical dune areas and, possibly, requiring mitigation for impacts.
The same avoidance and minimization requirements apply to critical dune areas as wetlands, but developments such as South Padre and the west end of Galveston have failed to apply these requirements. The GLO has lacked the will to force compliance and require a serious attempt to avoid all impacts, not just impacts to dunes but to flora and fauna - the wildlife, vegetation, and vistas native to the Texas Coast which the Dune Protection Act and your regulations declare to be a treasure that must be preserved for all Texans. The results have been urban neighborhoods and high-rise resorts built on shifting sands. We know the erosion rates. We know that sea levels are rising.
Third, developers are not there when the storms hit. They had long since destroyed the dunes, achieved maximum density, and gone on to other real estate investments. It is the Texans and Winter Texans who lose their investments, not the land speculators from other states and sometimes Texas. These developers are often partners in publicly traded Real Estate Investment Trusts, who must show their stockholders as high a Return on Investment as possible. They pay lobbyists and other agents to seek a more lenient standard or interpretation of the rules, so they can maximize development as close as possible to the water, and thereby maximize ROI over cost of "raw land." Their interests are in this respect at odds with the public interest you and your staff must protect.
Fourth, Texas and the nation simply cannot continue a practice of giving in to developers and then bailing out the homeowners when the known peril actually occurs. The tax revenues of Americans and Texans are going by the billions to the banks which failed to follow sound lending policies, and by the billions to the car makers which sued to avoid modernization of their manufacturing processes, reliability ratings, and fuel efficiency standards. There is no money left in the government to bail out new victims of irresponsible coastal development - meaning that "renourishment" of beaches is not going to be an option in the foreseeable future. Paying tens of millions of dollars to place sand in an eroding area - where it will quickly wash away again - has never been a sound land management policy.
Fifth, compliance and enforcement must be an integral part of the GLO's approach - and its budget process. Compliance means not only requiring the Dune Protection Act to be followed, it means a public education campaign to make sure all potential buyers and builders on the Texas coast are fully aware of the regulations, and to make sure that local governments are doing their part. Only by doing all that is possible to make sure buyers and owners are fully informed, and by insisting that the rules are followed, will we be able to avoid the costly mistakes of the past. In my work with Nueces County's Beach Management program, I have observed serious problems with compliance.
Land owners frequently start and even complete smaller projects without knowing of the regulations. Local governments often lack the will to make unpopular decisions that will impact a developer's ROI, because they are elected officials and they don't want to be unpopular with the developers who claim they will vastly increase the area's tax base, without mentioning the down sides of costs of utilities in hazard zones, road maintenance where roads can be washed away, and the other costs of maintaining fire, safety, and utility mechanisms. Land owners who do get dune permits often ignore the limitations and cause more impacts than what was permitted. Neither the GLO nor the local governments have efficient enforcement mechanisms, not funding, to address these problems. Funding spent by the tens of millions on dredging operations (renourishment) where the rules were not followed, could be avoided in areas of future developments if sound education and enforcement practices were carried out. Local governments could benefit from sound maintenance practices, and research and development on those areas, as well.
We know so much more now than we did when these unwise land use practices were allowed. We are in a recession now, and land use activity has slowed greatly. Now is the time to plan for the next "big wave" of development on the Texas coast. It is coming; we need to be ready. We need regulations and practices that accurately reflect our unique coastal areas and our unique population. We need a science-based approach to statewide coastal development that accounts for known and anticipated erosion and sea level rise, both on the Gulf side and the inland waterways.
You have been advised to expect an increased assault on the proposed GLO regulations encouraging setbacks. I am concerned that you sent the wrong message by declaring a moratorium on the finalization of the amendments to Chapter 15 of 31 TAC that encouraged setbacks. I ask that you tell the public that the events of Ike and Dolly - and Katrina and Rita before that - are proof of the wisdom of these proposed regulations, and they need to be adjusted but adopted. The lessons of the past few years have demonstrated the wisdom of requiring sound land use planning, to avoid catastrophic loss of lives and property.
Please let me know how I can assist in your efforts in this regard.
Fred McCutchon
361.888.9201 office; 361.816.4969 cell
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