Commission Agenda Item No. 5
Exhibit A

STATEWIDE RECREATIONAL

AND COMMERCIAL FISHING PROCLAMATIONS

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §57.977, amendments to §57.973, §57.981, and §57.992, and new §57.977 and §57.978, concerning the Statewide Recreational and Commercial Fishing Proclamations.

         The proposed repeal of §57.977, concerning Violations and Penalties, would allow the department to propose new §57.977, concerning Spawning Event Closures. The provisions of current §57.977 would then become proposed new §57.978, concerning Violations and Penalties.

         The proposed amendment to §57.973, concerning Devices, Means, and Methods, would add three locations to the list of locations where persons are restricted to no more than two pole-and-line devices while angling, expand the geographical extent of special rules governing the take of rainbow trout on the Guadalupe River, and simplify rules specifying the color of floats that must be employed with jug lines.

         In 2012 the department implemented harvest and gear restrictions on Canyon Lake Project #6 in Lubbock County that are similar to those in effect for community fishing lakes (CFL). The lake is 82 acres, which is larger than the maximum size of 75 acres established by rule for CFLs; therefore, the lake was subject to statewide harvest and devices regulations. By rule, CFLs share a single regulatory structure on catfish (no minimum length limit, five fish bag) and gear usage (pole-and-line angling only, with a limit of two poles per person). The rulemaking last year addressed the restriction to pole-and-line angling only but not the pole limit and harvest limitations. The proposed amendment would correct that oversight by imposing the statewide CFL harvest regulations for channel and blue catfish and the two-pole limit on Canyon Lake Project #6. In addition, there are two segments of the Concho River within the city limits of the City of San Angelo that have also been managed under regulations similar to those in effect for CFLs. The proposed amendment would impose the CFL gear restriction rules on those stream segments.

         Current rules require juglines used for non-commercial purposes to be marked with a white, free-floating device. The department has received requests from the public to change the rule to remove the color requirement because “noodle” floats are ideal for this purpose but are not commonly available in white. The department has determined that allowing floats to be any color does not present an enforcement issue, provided the float is not orange, which is the required color for floats used on commercial juglines.

         Current harvest and gear regulations for rainbow and brown trout on the Guadalupe River from Canyon Lake Dam to the easternmost bridge crossing on Farm to Market Road (F.M.) 306 consist of the statewide limits for trout (a five-fish daily bag limit and no length limit). From the easternmost F.M. 306 crossing downstream to the second bridge crossing on River Road, current rules allow the harvest of trout 18 inches or longer, and anglers are allowed to retain one trout per day. The retention of trout harvest in this area is also restricted to trout caught on artificial lures. Downstream of the second bridge crossing on the River Road, the regulations revert back to statewide limits. The proposed amendment would impose a 12- to 18-inch slot length limit and five-fish daily bag limit, restrict harvest to artificial lures only, and allow only one trout over 18 inches to be retained. The new regulation zone would extend from 800 yards downstream from the Canyon Dam release to the easternmost F.M. 306 bridge crossing.

         Rainbow trout have been stocked in the Guadalupe River below Canyon Reservoir since 1966 by TPWD through a state/federal/private partnership, and the river has been a popular fishery since its inception. The Guadalupe River Chapter of Trout Unlimited (GRTU) has also stocked the Guadalupe River since the early 1970s. Because of the release from Canyon Reservoir, water temperature in the Guadalupe River below Canyon Reservoir is suitable for oversummer survival of rainbow trout in most years. The distance below the reservoir where water temperature remains suitable (below 70° F) is determined by outflow from the reservoir. Higher flows extend the distance, while lower flows reduce it. TPWD and/or GRTU have continuously monitored water temperatures at five sites in the river since 1997. Water temperature data indicate the 4-mile segment of the river from the outflow of Canyon Dam to the easternmost bridge crossing on F.M. 306 has the most consistent, suitable water temperatures. Mortality due to above optimal water temperature (70°F or higher) in this stretch is likely the lowest. Oversummer survival of trout in this segment of the river was documented in fall 2011 despite extremely low summer (June – August) flows (less than 70 cfs) and record high ambient temperatures.

         Length limits for the harvest of trout are not currently regulated in this section of the river. Trout of any length can be harvested in this stretch of the river although potential for multi-year survival in this stretch is likely the highest of anywhere on the river. A more-restrictive harvest regulation in this stream segment could be used to increase angler catch rates as well as potentially increase the size structure of the trout population. The proposed amendment is designed to avoid interfering with the popular catch-and-keep fishery directly below the dam. The 12-inch lower end of the slot limit would allow harvest of trout stocked by TPWD, as most are below this length, while protecting trout stocked by GRTU which are typically above this length.

         Proposed new §57.977, concerning Spawning Event Closure, would establish a processes to allow the department to temporarily prohibit the take of alligator gar in places where they are spawning or are about to spawn. Alligator gar populations are believed to be declining throughout much of their historical range in North America, which includes the Mississippi River system as well as the coastal rivers of the Gulf of Mexico from Florida to northern Mexico. Although the specific severity of these declines is unknown, habitat alteration and over-exploitation are thought to be partially responsible. Alligator gar have been extirpated in Illinois, Indiana, and Ohio and designated as a “Species of Concern” in Oklahoma and Kentucky. In addition, the Endangered Fishes Committee of the American Fisheries Society has listed the alligator gar as “Vulnerable.” Observed declines in other states, vulnerability to overfishing, and increased interest in the harvest of trophy gar indicate that a conservative management approach is warranted until populations and potential threats can be fully assessed. On that basis, the Commission in 2009 adopted a daily bag limit of one alligator gar per person, which was intended to protect adult fish while allowing limited harvest, thus ensuring population stability. Since 2009, the department has conducted (and is continuing to conduct) research to determine the estimated harvest of alligator gar, quantify reproduction, understand habitat usage, and determine geographic differences in populations. Initial analysis of the research data indicate that alligator gar in Texas have the greatest chance of spawning success if the creation of preferred spawning habitat (the seasonal inundation of low-lying areas of vegetation) occurs in late spring through early summer. Since each year does not necessarily bring seasonal inundation at the optimum time, spawning success varies greatly. For example, department data for the middle Trinity River indicate that between 1980 and 2010, strong reproductive success occurred in only five years (1980, 1989, 1990, 1991, and 2007). Furthermore, in 21 of the years between 1980 and 2010, reproductive success was nonexistent or weak, and in many of these years, rainfall was low or drought conditions occurred. Because the conditions for spawning do not exist on a regular or cyclical basis, and because spawning occurs in shallow waters where numerous gar can be concentrated in one area, alligator gar are extremely vulnerable to harvest during spawning. To protect alligator gar from excessive harvest during spawning, the proposed new rule would allow the executive director of the department to prohibit the take of alligator in an affected area, which would be defined as “an area of fresh water containing environmental conditions conducive for alligator gar spawning” or “an area of fresh water where alligator gar are in the process of spawning activity.” The proposed new rule would define “environmental conditions conducive for alligator gar spawning” as “the components of a hydrological state (including but not limited to water temperatures, duration and timing of flooding events, river discharge rates, and any other factors that are known to be conducive to gar reproduction) that are predictors of the likelihood of spawning activity of alligator gar.” The proposed new rule would require the executive director to provide appropriate public notice when an affected area is declared and when lawful fishing for alligator may resume, and would limit the duration of a prohibition to no more than 30 days. The department believes it is important to provide the angling public with a specific maximum timespan for the effectiveness of an action under the proposed new section. The proposed new rule is necessary to manage alligator gar populations and ensure their ability to perpetuate themselves successfully.

         The proposed amendment to §57.981, concerning Bag, Possession, and Length Limits, would alter regulations for blue and channel catfish on Louisiana border waters (Toledo Bend Reservoir, Caddo Lake, and Lower Sabine River).

         Current harvest regulations for blue and channel catfish on Louisiana border waters consist of a 50-fish daily bag limit in any combination, of which no more than five blue or channel catfish longer than or equal to 20 inches may be retained. Fish of any length may be harvested. The proposed amendment would increase the length for restriction on the harvest of five catfish from 20 to 30 inches.

         The current regulations were implemented on all border waters on September 1, 2011 in collaboration with Louisiana Department of Wildlife and Fisheries (LDWF). There have been numerous complaints from anglers, particularly on Toledo Bend Reservoir, that the regulation is too restrictive because it results in high proportions of undersized fish being caught on juglines and trotlines. In response to the complaints, supplemental creel, population sampling, and opinion surveys were conducted by TPWD and LDWF. Anglers interviewed during creel surveys caught 1,230 blue catfish, of which 46% were 20 inches or longer and 6% 30 inches or longer. LDWF sampled blue catfish with trotlines and results were similar to those obtained from Texas anglers, with 50% of the catch 20 inches or longer and 6% longer than 30 inches. An opinion survey of anglers indicated that 89% opposed the retention limit of five fish greater than 20 inches and only 3% supported it. Of those opposing, 91% favored a five-fish bag limit but wanted the length limit increased to 30 inches, while 9% supported the current length limit (20 inches) but preferred a bag limit increase to 10 fish.

         Toledo Bend Reservoir currently supports an abundant blue catfish population with stable recruitment, and trotline and jugline anglers routinely catch fish that weigh 20 pounds or more and exceed 35 inches in length). Elimination of the minimum length limit under a 50-fish daily bag limit for blue and channel catfish (in any combination) while allowing the retention of no more than five fish of 30 inches or greater in length should provide harvest opportunities that Toledo Bend Reservoir anglers desire without resulting in detrimental effects on the blue catfish population. Blue catfish abundance is high, recruitment is stable, and annual population exploitation is likely low. Additionally, the proposed amendment should not negatively affect blue catfish populations at Caddo Lake or the lower Sabine River, since minimal blue catfish fisheries exist in those places, and no effect is anticipated on the channel catfish population in any border waters because fish longer than or equal to 20 inches are scarce.

         The proposed amendment to §57.981 also would affect harvest regulations for red drum on Tradinghouse Creek Reservoir in McLennan County. The current regulations consist of a 20-inch minimum length limit, no maximum length limit, and a three-fish daily bag limit. The proposed amendment would eliminate the current requirements and implement the statewide length limits (20-inch minimum length limit, 28-inch maximum length limit, and harvest of up to two red drum 28 inches or longer per year with trophy drum tag). The daily bag limit would remain at three. Tradinghouse Creek is a 2,012-acre reservoir located in McLennan County, 10 miles east of Waco. The reservoir was impounded in 1968 and was maintained by Texas Utilities Company for the purpose of cooling a coal-fired power plant. Plant operations were downgraded to an as-needed status in 2004, and then suspended permanently in 2009. Red drum have been stocked regularly in reservoir since 1975. The change in plant operations resulted in water quality changes (lower water temperature and chloride levels) in the reservoir that almost completely eliminate the ability of red drum to survive year round. Red drum stocking was discontinued after 2010, and red drum most likely no longer exist in the reservoir. No red drum were observed during supplemental gill netting or the summer creel survey. Temperature data confirmed near-lethal water temperatures for red drum, and there were more than 40 days of temperatures low enough to stop red drum from actively feeding. Additionally, chloride levels were found to be much lower than the minimum needed to support red drum in fresh water. Consequently, special regulations are no longer needed for this freshwater population.

         The proposed amendment to §57.981 also would affect Lake Kyle in Hays County. Current regulations on Lake Kyle consist of community fishing lake (CFL)  regulations (five fish daily bag limit for channel and blue catfish, no minimum length limit, methods restricted to pole-and-line only and no more than two devices per person) and a 14 to 21 inch slot length limit for largemouth bass. The proposed amendment would prohibit the harvest of channel and blue catfish, largemouth bass, or any sunfish species. Lake Kyle is a 12-acre impoundment of Plum Creek and has been open to the public since spring 2012 under the management of the City of Kyle Parks and Recreation Department. A 14- to 21-inch slot length limit was implemented for largemouth bass in 2011 to protect the quality population surveyed at this lake. A high-quality sunfish population was also detected during initial fish surveys. However, after opening to the public, the quality of the sunfish fishery has been reduced. Public access is limited to the hours and days the park is open. All park users access the park through one entrance at the main office. This unique site provides the attributes needed to expand a quality fishing experience beyond bass to include channel catfish and sunfish.

         The proposed amendment to §57.981 also affects saltwater fisheries. The proposed amendment would alter the current regulations in effect for spotted seatrout. Until 2007, the harvest regulations for spotted seatrout were statewide, consisting of a daily bag limit of 10 fish, a 15-inch minimum size limit, and no more than one fish greater than 25 inches in length allowed to be retained. The possession limit was twice the daily bag limit. In 2007, the department became concerned about spotted seatrout populations in the Lower Laguna Madre and created regional regulations for seatrout (32 TexReg 4421). Those regulations (still in effect) reduced the bag and possession limits for spotted seatrout in the Lower Laguna Madre south of Marker 21 to a five-fish daily bag limit and a possession limit equal to the daily bag limit. The proposed amendment would move the boundary for the current regulation northward to F.M. 457 in Matagorda County. The proposed amendment would lower the daily bag limit from 10 fish to five and make the possession limit identical to the daily bag limit in the area between Marker 21 and F. M. 457 in Matagorda County.  Department sampling and survey efforts since 2007 indicate an increase in the number and size of spotted seatrout in the lower Laguna Madre, and similar results are expected within the area affected by the proposed amendment.  Surveys and modeling indicate that landings will be reduced by 13.6%, with an increase in the spawning biomass of 16.4% and a 41.8% increase in the number of spotted seatrout greater than 25 inches in length in the affected area.  Modeling has indicated a substantial improvement would be possible in a relatively short period of time, with 89% of the effects realized within three years, and 99% of the effects realized within six years.  The proposed amendment is necessary to improve the quality of fishing by increasing the number and size of spotted seatrout. The current rule governing the harvest of spotted seatrout in the Lower Laguna Madre is referred to as a special regulation. Because the proposed amendment would enlarge the geographical extent of the special regulation to encompass most of the Texas coast, the proposed amendment would designate the harvest regulations in the area south of F.M. 457 as the statewide standard, and the harvest rules north of F.M. 457 as the special regulation.

         The proposed amendment to §57.981(c)(5) and the proposed amendment to §57.992, concerning Bag, Possession, and Length Limits, would affect provisions governing the recreational take of flounder. The last three years of fishery-independent survey data (gill nets) indicate a downward population trend in the flounder fishery.  While fall gill net sampling data showed an increase in abundance between 2009 and 2011, the two most recent years (2012, 2013) show a decline by 76%, returning to the lowest abundance recorded since the department began sampling in 1982.  Based on this recent downward trend staff has determined that to stabilize or reverse this trend additional measures should be implemented to protect and replenish spawning stock biomass during the flounder spawning run. Current harvest regulations for flounder consist of a 14-inch minimum size limit and a 5-fish daily bag and possession limit for recreational take and a 30-fish daily bag and possession limit for commercial take, except during the month of November. During the month of November, recreational and commercial take are restricted to two flounder per day and lawful means are restricted to pole-and-line only.  The proposed amendment would extend the two-fish bag limit into the first two weeks of December, but during that two-week time, any legal means could be used to harvest flounder.

2. Fiscal Note.

         Ken Kurzawski, Program Director, Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

         Mr. Kurzawski also has determined that for each of the first five years that the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

          The department has determined that other than the proposed rules affecting flounder, the rules will not directly affect small businesses and/or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006, except with respect to the portions of the proposed amendment to §57.992 that affect commercial take of flounder.

         The proposed amendment affecting flounder will have an adverse economic impact on small or micro-businesses engaged in commercial fisheries operations. There are two primary groups of small or micro-businesses in the flounder fishery that are directly affected by the proposed rules: those who directly target flounder for harvest and those who harvest flounder as bycatch (incidental to other harvest operations). Based on permit data, the department has determined that all persons who take flounder for commercial purposes in Texas qualify as microbusinesses.

         The proposed rules affecting the commercial harvest of flounder would extend the two-fish bag limit (currently in effect only in November) into the first two weeks of December.  In addition, the November-only restriction of gear to pole-and-line only would be eliminated and flounder could be taken by any legal means during the first two weeks in December.

         The department has analyzed the adverse economic impact on small and micro-businesses affected by the proposed rules by addressing the historical number of commercial trips resulting in the landing of flounder during December.  While commercial harvest may continue to occur under the proposed rules during the first two weeks in December, in an effort to ensure that all possible direct impacts are considered, the department assumes for purposes of the small and micro-business analyses that there would be no commercial harvest during the first two weeks in December under the proposal.

         Also, since department’s landing data is collected and assembled on a monthly basis, to determine the estimated historical harvest during the first two weeks of December, the department assumes that the December sales occurred during the first two weeks of December.

         Between license years (LY) 2010 (Sept. 1, 2009 – Aug. 31, 2010) and 2013 (Sept. 1, 2012 – Aug. 31, 2013), December flounder landings were reported by 12 to 33 (average of 23) commercial finfish fisherman.  Therefore, the department estimates that the proposed rule would impact between 12 to 33 small or micro-businesses.

         The following analysis estimates the potential adverse economic impacts of the proposed amendment based on landings data for the lowest (LY2011) and highest (LY2012) years of harvest under the current rule which imposes a two-fish bag limit in November, harvest by pole-and-line only.  An average of the last four years (LY2010 – LY2013) is also shown.

         In December 2010 (LY2011), the lowest year of harvest, there were a total of 52 trips in December by 16 commercial finfish fisherman.  These trips resulted in 2,306.41 pounds of flounder landed, for an average catch per trip of 44.35 pounds.  Using the average reported price for December, 2010 (LY2011), of $3.09 per pound, the total aggregate sales for December 2010 for all small or micro-businesses was $7,126.80.  Therefore, the proposed amendment, if adopted, could result in an aggregate loss in sales of ½ of the total aggregate sales or $3,563.40 (for all small or micro-businesses affected by the proposed rule. Therefore, using LY2011 data, the greatest adverse economic impact to any small or microbusiness affected by the rule would be $3,563.40 (if all flounder were landed by one licensee) and the average adverse economic impact to a small or micro-business of the proposed rule would be $222.71 ($3563.40 divided by 16 commercial finfish fisherman reporting trips in December).

         In December 2011 (LY2012), the highest year of harvest, there were a total of 166 trips in December by 33 commercial finfish fisherman, resulting in 14,350.79 pounds of flounder landed, for an average catch per trip of 86.45 pounds.  Using the average reported price for December, 2011 (LY2012), of $2.52 per pound, the total aggregate sales for December 2011 for all small or micro-businesses was $36,163.99.  Therefore, the proposed amendment, if adopted, could result in an aggregate loss in sales of ½ of the total aggregate sales or $18,081.99 for all small or micro-businesses affected by the proposed rule. Therefore, using LY2012 data, the greatest adverse economic impact to any small or microbusiness affected by the rule would be $18,081.99 (if all flounder were landed by one licensee) and the average adverse economic impact to a small or micro-business of the proposed rule would be $547.91 ($18,081.99 divided by 33 commercial finfish fisherman reporting trips in December).

         On average, between LY2010 and LY2013 there were 96.5 trips in December, with an average landing of 6,998.4 pounds of flounder.  During that same period of time there were an average of 23 commercial finfish fisherman.  Using the average December reported price for LY10-13 of $2.88 per pound, the total aggregate average sales between December (LY2010) and December 2012 (LY2013) for all small or micro-businesses was $20,155.39.  The aggregate annual loss in sales for all small or micro-businesses affected by the proposed rule would be one-half the total aggregate average or $10,077.70.  Therefore, using this 4-year average, the average adverse economic impact to a small or micro-business of the proposed rule would be a loss of $438.16.

         There will also be adverse economic impacts for small or micro-businesses that land flounder as incidental catch (bycatch); however, the probable adverse economic impacts on these small or micro-businesses would be less than impacts on businesses fishing for flounder under a finfish fisherman’s license (i.e., less than $438.16).

         In developing the proposal to address the downward trends in flounder populations, the department considered several alternatives, in addition to the  proposal contained in this rulemaking, to minimize adverse impacts on commercial finfish fishermen.  The department considered: (1) expansion of the November regulations into the last two weeks of October; (2) expansion of the November regulations into the last week of October; (3) expansion of the November regulations into the first week of December; (4) expansion of the November regulations into the first two weeks of December; (5) a combination of options 1-4 above (i.e. the last week of October and the first week of December); and (6) expansion of the November regulations into the entire month of December; (7) no action. The department believes that given the significant recent downward trend in southern flounder, the “no action” alternative would not provide the needed protections for the fishery.  The department believes that expanding only the reduced bag limit of 2-fish into the first two weeks of December would best balance competing interests in achieving the objective of the proposed amendment while being less burdensome to anglers.

         (D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

         (E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

         (F) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

4. Request for Public Comment

Commission Agenda Item No. 5
Exhibit B

STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules. The proposed new rule would close approximately 434 acres to oyster harvesting in the East Bay Approved Area in Galveston Bay and a 54-acre area encompassing Half-Moon Reef in Matagorda Bay for two harvest seasons, which will allow for scheduled oyster cultch plantings to repopulate these areas with oysters and for those oysters to reach market size. Oyster cultch is the material to which oyster spat (juvenile oysters) attach in order to create an oyster bed. Private oyster leases in East Galveston Bay would not be affected by the closure.

         Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked. When Hurricane Ike made landfall on the upper Texas coast on September 13, 2008, it caused extensive damage to the oyster reef habitat in Galveston Bay and especially East Bay. The damage was mainly caused by siltation on the reefs and the deposition of sediment on reef substrate.  This siltation does not allow for spat to set on the reef and begin the process of oyster reef repopulation. Sidescan sonar surveys conducted by the department indicated an approximately 50-60% loss of oyster habitat in Galveston Bay due to heavy sedimentation/siltation and debris over consolidated reefs. The impact was greatest in East Bay, where over 80% of oyster habitat was lost.

         The department’s oyster habitat restoration efforts to date in East Bay have resulted in approximately 640 acres of sediment/silt-covered oyster habitat returned to productive habitat within the bay. Approximately $4 million in grants and other funding has been secured by the department to conduct cultch planting on approximately 170 acres of additional sediment/silt-covered oyster habitat in East Bay.

         The Half-Moon reef complex lies off Palacios Point in Matagorda County between Tres Palacios Bay and the eastern arm of Matagorda Bay and was formerly a highly productive oyster reef within the Lavaca-Matagorda Estuary.  The reef has been degraded due to a variety of stressors and as a result The Nature Conservancy (TNC) has secured funding to restore up to 40 acres within the historical reef footprint and within the 54-acre area proposed for temporary closure.  The proposed closure area will provide a small buffer around the restoration site.

         The project will consist of the emplacement of three-dimensional structures utilizing graded limestone that will function as cultch for oyster populations and is completed funded by TNC.

          The department has determined that the 434-acres encompassing the oyster restoration sites in the East Bay Approved Area in Galveston Bay and the 54-acre area encompassing Half-Moon Reef in Matagorda Bay must be closed to oyster harvest for at least two years in order to repopulate these reefs, allow for post-construction monitoring for success, and to allow oysters to reach market size.

2. Fiscal Note.

         Lance Robinson, Coastal Fisheries Division, Regional Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state or local governments as a result of enforcing or administering the rule.  The department will incur costs associated with the installation and maintenance of corner marker buoys used to delineate the closure boundaries. Over the two-year closure period the department estimates an expense of approximately $30,000 to $35,000.  The initial cost of installation is estimated to be $27,000 ($1,500 per buoy, plus anchors and corners).

3. Public Benefit/Cost Note.

         Mr. Robinson also has determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach market size and subsequent recreational and commercial harvest.

         (B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendment as proposed because there has been no commercial harvest of oysters occurring in the areas affected by the proposed rule since at least 2008.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

         (E) The department has determined that the proposed rules are in compliance with Government Code §505.11 (Actions and Rules Subject to the Coastal Management Program) and §505.22 (Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program).

3. Request for Public Comment.