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Commission Agenda Item No. 1
Presenter: Ken Kurzawski
Lance Robinson

Action
2019-2020 Statewide Recreational and Commercial Fishing and
Statewide Oyster Fishery Proclamations
Recommended Adoption of Proposed Changes
March 20, 2019

I.     Executive Summary:  With this item, the staff seeks adoption of proposed changes to the Statewide Recreational and Commercial Fishing and Statewide Oyster Fishery Proclamations. The proposed amendments would:

Inland Fisheries

Coastal Fisheries

II.    Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking fisheries resources for recreational purposes is delegated to the Texas Parks and Wildlife Commission (the Commission) under Texas Parks and Wildlife Code chapters 61 and 67. Statutory authority to regulate commercial fisheries is delegated to the Commission under Texas Parks and Wildlife Code chapters 47 and 66.  The proposed rules are based upon suggestions from the public, statutory requirements, and Commission policy, including scientific investigations and required findings of fact where applicable. The proposed changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

At the Commission Work Session meeting on January 23, 2019, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the February 15, 2019 issue of the Texas Register (44 TexReg 668).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  Staff recommends that the Commission adopt the proposed motion:

            “The Texas Parks and Wildlife Commission adopts repeal of §57.979 and amendments to §57.972, §57.981, and §57.992, concerning the Statewide Recreational and Commercial Fishing Proclamation, and an amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, with changes as necessary to the proposed text as published in the February 15, 2019, issue of the Texas Register (44 TexReg 674).”

Attachments – 2

  1. Exhibit A – Proposed Statewide Recreational and Commercial Fishing Proclamation
  2. Exhibit B – Proposed Statewide Oyster Fishery Proclamation

Commission Agenda Item No. 1
Exhibit A

STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes the repeal of §57.979 and amendments to §§57.972, 57.981, and §57.992, concerning the Statewide Recreational and Commercial Fishing Proclamations.

        The repeal of §57.979, concerning Temporary Exception to Bag, Possession, and Length Limits for king mackerel, would repeal a rule that was promulgated to provide maximum angler opportunity in the wake of an unanticipated federal action and is no longer necessary, as the provisions were incorporated in §57.981 and §57.992 during rulemaking last year.

        The proposed amendment to §57.972, concerning General Provisions, would provide for a department-administered public drawing to select applicants to take alligator gar of greater than 48 inches in length on a specific segment of the Trinity River, subject to the restrictions set forth in the proposed amendment to §57.981. As discussed in greater detail later in this preamble, the department continues to be concerned about alligator populations. The proposed amendment would provide a method for distributing a limited, controlled harvest of large alligator gar by means of a fair and impartial method, subject to determinations made by the department. The proposed amendment to §57.981, concerning Bag, Possession and Length Limits would implement a series of changes to largemouth bass harvest regulations on multiple reservoirs.

        Over the last two years, the department’s Inland Fisheries Division has conducted an extensive evaluation of largemouth bass harvest regulations across the state with the goal of reducing regulatory complexity where possible. The primary goal was to reduce the number of water bodies where harvest regulations are exceptions to the statewide standards (14-inch minimum length limit, five-fish daily bag limit) and consolidate additional water bodies under existing exceptions without confounding existing management goals and objectives. As part of that effort, the proposed amendment to §57.981 would reduce the minimum length limit for largemouth bass on Lake Conroe (Montgomery and Walker counties) from 16-inches to 14 inches.  The proposed amendment would eliminate that final water body where the 16-inch minimum for largemouth bass is imposed, further reducing the complexity of largemouth bass regulations. An extensive evaluation of the largemouth bass population and fishery at Lake Conroe over the last year indicated a change to the 14-inch limit would likely result in a small reduction of 16-inch and larger bass and a general shift towards smaller fish. Anglers may experience a similar reduction in catch of 16-inch and larger fish. However, staff expects Lake Conroe will continue to provide quality fishing experiences and maintain its capacity for producing desirable fish under the statewide 14-inch limit.

        The proposed amendment to §57.981 also would implement harvest regulations for largemouth bass on Lake Lakewood (Williamson County), consisting of an 18-inch minimum length limit and three-fish daily bag limit. Lake Lakewood is a 47-acre impoundment located in Leander. The City of Leander acquired land along the northern shore of the reservoir to convert into a public nature park. The department has worked with park staff to ensure free public access to the lake for anglers and paddlers. Adequate populations of game fish and forage species were confirmed during an electrofishing survey conducted in spring 2017. The size structure for largemouth bass indicated the presence of quality-size fish, with some fish surpassing 18 inches. The proposed amendment (which would implement harvest regulations differing from the statewide standards of 14-inch minimum length and five-fish daily bag limit) is designed to protect larger fish that would become highly vulnerable to harvest once the park opens. Similar lakes in the Austin area have benefited from this protective approach and have been able to sustain quality largemouth bass catches for years (Bright Lake and Brushy Creek Reservoir). Lake Lakewood has the potential to provide excellent largemouth bass fishing to a growing paddling and bank angling constituency in the greater Austin area.

        The proposed amendment to §57.981 also would eliminate the 14- to 21-inch slot length limit for largemouth bass on Mill Creek Lake (Van Zandt County) and implement a 16-inch maximum length limit with an exception allowing for possession and weighing of bass 24 inches or greater for possible submission to ShareLunker program. Mill Creek Reservoir is a 237-acre reservoir located within the city limits of Canton. The 14-21-inch slot-length limit was introduced on Mill Creek Reservoir in 1991, and at that time, the daily bag limit was three fish. The five-fish daily bag limit, with one fish 21 inches or greater, was established in September 1996 to increase abundance and catch of largemouth bass 14-21 inches while allowing limited harvest of fish larger than 21 inches. Recent improvements in habitat are anticipated to improve survival of largemouth bass and prey fishes. Abundant small largemouth bass and threadfin shad were collected in an electrofishing assessment performed in July 2018. The department and the City of Canton are working cooperatively on a long-range plan to improve fishing access for bank anglers by constructing small floating piers, clearing areas where vegetation obstructs bank access, and positioning fish attractors accessible to bank anglers. The maximum length limit of 16 inches should increase abundance of largemouth bass by providing protection to large bass currently vulnerable to harvest (21 inches or larger in length) with little or no change to abundance or size structure of bass less than 16 inches. If some small fish are harvested, reduced intraspecific competition could lead to increased growth rates.

        The proposed amendment to §57.981 also would expand the area in southeast Texas under the 12-inch minimum length limit for largemouth bass. Under current rules, there is minimum length limit of 12 inches for largemouth bass in Chambers, Galveston, Jefferson, and Orange counties (including any public waters that form boundaries with adjacent counties) and on the Sabine River from Toledo Bend dam downstream to a line across Sabine Pass between Texas Point and Louisiana Point (Newton and Orange counties). The proposed amendment would add Hardin County, Newton County (excluding Toledo Bend Reservoir), and Liberty County (south of U.S. Highway 90). The proposed amendment is intended to provide more uniform harvest regulations for bass populations with similar life histories in that region of the state, which should enhance and simplify compliance and enforcement.

        The proposed amendment also would modify the harvest regulations for largemouth and Alabama bass on Alan Henry Reservoir (Garza County) by removing Alabama bass from the current regulation (five-fish daily bag of which only two bass less than 18 inches may be harvested). The harvest regulations for Alabama bass would revert to the statewide limits (no length limit and five-fish daily bag in combination with largemouth bass). Alan Henry Reservoir was originally stocked with largemouth and smallmouth bass, and later with Alabama bass. Alabama bass are native to Mobile River drainage in Alabama, Georgia, and Mississippi. This species attains larger sizes than spotted bass native to Texas and other states, and that trend is observed when this species is stocked outside its native range. This species seems to do best in highland reservoirs with water fluctuations, which was the reason for the experimental stocking in Alan Henry Reservoir. The goal of the proposed amendment is to redistribute the harvest and produce largemouth bass and Alabama bass longer than 18 inches. Because Alan Henry is the only lake with Alabama bass, the proposed amendment, if adopted, would eliminate a statewide exception and further simplify the harvest regulations for bass.

        The proposed amendment also would implement a 48-inch maximum length limit for alligator gar on the Trinity River and tributary waters extending from the I-30 bridge in Dallas County downstream to the I-10 bridge in Chambers County, require mandatory reporting for all alligator gar harvested statewide except for Falcon International Reservoir (Zapata and Starr counties), and prohibit the take of alligator gar by lawful archery equipment or crossbow or the possession of alligator gar taken by those means at night (the period of time from one half-hour after sunset to one half-hour before sunrise). The department continues to be concerned about harvest of alligator gar in the Trinity River and other areas. The proposed amendment would implement a 48-inch maximum length limit for any gar taken on the Trinity River from the I-30 bridge in Dallas County downstream to the I-10 bridge in Chambers County, including the East Fork of the Trinity River and all tributaries upstream to the Lake Ray Hubbard dam. The 48-inch length limit would protect enough spawning-aged females to reproduce and provide a sufficient supply of large, recreationally-valuable fish for anglers to catch in the Trinity River. Additionally, the proposed amendment would require any person harvesting an alligator gar in public water to report the harvest within 24 hours via the department’s website or mobile application. Because relatively few alligator gar can be sustainably harvested each year and interest in alligator gar fishing has increased, the department has determined that it is prudent to closely monitor harvest numbers and locations, information that cannot be obtained by any method other than mandatory reporting. Falcon Reservoir has a more robust population of alligator gar, and harvest information is not needed to manage that particular population. Unregulated commercial fishing in the Mexico waters of Falcon International Reservoir makes this a challenging location to manage for protection of large alligator gar. The proposed amendment also would prohibit the harvest of alligator gar at night by means of lawful archery equipment or crossbow, and the possession of alligator gar taken at night by those means. Concerns continue about the rapid evolution of technology and equipment used to target large alligator gar, and this is a proactive measure taken, in an abundance of caution, to protect gar populations rather than waiting for an emergency. The proposed amendment also consolidates all special provisions regarding alligator gar in subsection (d)(1)(L).

        With respect to saltwater species, the proposed amendment to §65.981 would increase the minimum size limit for cobia, from 37 inches to 40 inches. The Gulf of Mexico Fishery Management Council recently chose to change the commercial and recreational minimum size limit for Gulf cobia in federal waters to 40 inches. The proposed amendment would make cobia harvest regulations in state waters be consistent with the federal limits, which the department believes will reduce confusion and enhance compliance, administration, and enforcement.

         The proposed amendment also would eliminate the current bag limit differential for spotted seatrout and implement a universal five-fish bag in all state waters. In 2007, the department became concerned about spotted seatrout populations in the Lower Laguna Madre and created regional regulations for seatrout, reducing the bag and possession limits for spotted seatrout in the Lower Laguna Madre. In 2014, the department altered the boundary of that regional regulation and reinstated a coastwide possession limit of twice the daily bag limit. The proposed amendment is in response to persistent angler requests for lower daily bag limits in the areas where the 10-fish daily bag limit is in place. No adverse biological impacts are expected to occur as a result of lowering the limit from 10 to 5. Department survey data indicate that most anglers report harvesting fewer than five fish per day and that more than 75% of guides and nearly 50% of non-guides support lowering the limit from 10 to five fish.

        The proposed amendment also imposes new gear requirements on anglers taking sharks with natural bait. To address overfishing and rebuild the Atlantic dusky shark stock, the National Marine Fisheries Service adopted amendments to the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan that include mandating the use of non-offset, non-stainless-steel circle hooks when fishing for sharks in federal waters, except when fishing with artificial lures. The proposed amendment would make shark regulations in state waters consistent with federal regulations, which the department believes will reduce confusion and enhance compliance, administration, and enforcement.

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.

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

        (B) 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, micro-businesses, or rural communities. 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 impacts to small businesses, micro-businesses, or rural communities. 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 the proposed amendment to §57.981 regulates various aspects of recreational license privileges that allow individual persons to pursue and harvest fisheries resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

The department also has determined that the proposed amendment to §57.992 will not directly affect small businesses, micro-businesses, or rural communities. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (C) 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.

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

        (E) 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.

        (F) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (special provisions regarding alligator gar, gear requirements for the take of certain shark species);

                 (6) will repeal a regulation (the temporary King Mackerel rule), expand a regulation (governing bag limits for spotted seatrout), but otherwise will not expand or limit an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Ken Kurzawski (Inland Fisheries) at (512) 389-4591, email: ken.kurzawski@tpwd.texas.gov or Dakus Geeslin (Coastal Fisheries) at (512) 389-8734, email: dakus.geeslin@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, P&WC §11.0272 which authorizes the department to conduct public drawings to select applicants for public fishing or other special events privileges, and under Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take, or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.

        The proposed amendment affects Parks and Wildlife Code, Chapter 61.

6. Rule Text.

        §57.972. General Provisions.

                 (a) –(i) (No change.)

                 (j) Public Drawing for Alligator Gar.

                         (1) The department may conduct public drawings for the purpose of providing selected applicants with an opportunity to harvest an alligator gar greater than 48 inches in length on the segment of the Trinity River described in §57.981(d)(1)(L)(ii) of this title (relating to Bag, Possession, and Length Limits).

                         (2) A drawing under this subsection shall be administered by means of a random and impartial method.

                         (3) Drawings under this subsection are restricted to persons holding a valid recreational fishing license.

                         (4) An applicant may be selected for a harvest opportunity under this subsection only once between September 1 of one year and August 31 of the following year. A harvest opportunity under this subsection is valid only for the license year in which the drawing was conducted.

                         (5) Harvest under this subsection may take place at any time, except that harvest by means of lawful archery equipment or crossbow is prohibited between one half-hour after sunset and one half-hour before sunrise. An alligator gar taken under this subsection must be reported within 24 hours of harvest via the department’s website or mobile application. 

                         (6) Opportunity under this subsection is not transferrable; only persons selected by a drawing under this subsection are authorized to harvest an alligator gar under this subsection.

                         (7) Drawings held under this subsection shall be subject to determinations made by the department to ensure the sustainability of the alligator gar fishery.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The repeal is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take, or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.

        The proposed repeal affects Parks and Wildlife Code, Chapter 61.

                §57.979. Temporary Exception to Bag, Possession, and Length Limits for King Mackerel.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take, or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.

        The proposed amendment affects Parks and Wildlife Code, Chapter 61.

        §57.981. Bag, Possession, and Length Limits.

                 (a) – (b) (No change.)

                 (c) There are no bag, possession, or length limits on game or non-game fish, except as provided in this subchapter.

                         (1) – (4) (No change.)

                         (5) Except as provided in subsection (d) of this section, the statewide daily bag and length limits shall be as follows.

                                  (A) – (C)

                                  (D) Cobia.

                                          (i) (No change.)

                                          (ii) Minimum length limit: 40[37] inches.

                                          (iii) (No change.)

                                  (E) – (H) (No change.)

                                  (I) Gar, alligator.

                                          (i) – (iv) (No change).

                                          (v) Any person who takes an alligator gar in the public waters of this state other than Falcon International Reservoir shall report the harvest via the department’s website or mobile application within 24 hours of take.

                                          (vi) Between one half-hour after sunset and one half-hour before sunrise, any lawful means other than lawful archery equipment and crossbow may be used to take an alligator gar. No person may take an alligator gar by means of lawful archery equipment or crossbow between one half-hour after sunset and one half-hour before sunrise, or possess an alligator gar taken by means of lawful archery equipment or crossbow between one half-hour after sunset and one half-hour before sunrise.

                                  (J) – (N) (No change.)

                                  (O) Seatrout, spotted.

                                          (i) Daily bag limit: 5

                                                  [(I) for all waters south of F.M. 457 in Matagorda County: 5;]

                                                  [(II) for all waters north of F.M. 457 in Matagorda County: 10].

                                          (ii) — (iv) (No change.)

                                  (P) Shark: all species (including hybrids and subspecies)

                                          (i) – (iv) (No change.)

                                          (v) Except for the species listed in clause (ii) – (iv) of this subparagraph, sharks may be taken using pole and line, but must be taken by non-offset, non-stainless-steel circle hook when using natural bait.

                                  (Q) – (X) (No change.)

                 (d) Exceptions to statewide daily bag, possession, and length limits shall be as follows:

                         (1) Freshwater species.

                                  (A) Bass: largemouth, smallmouth, spotted, and Guadalupe (including their hybrids and subspecies). Devils River (Val Verde County) from State Highway 163 bridge crossing (Bakers Crossing) to the confluence with Big Satan Creek including all tributaries within these boundaries and all waters in the Lost Maples State Natural Area (Bandera County).

                                          (i) Daily bag limit: 0.

                                          (ii) No minimum length limit.

                                          (iii) Catch and release only.

                                  (B) Bass: largemouth[,] and spotted[, and Alabama].

                                          (i) [Lake Alan Henry (Garza County).]

                                                  [(I) Daily bag limit: 5 largemouth or Alabama bass in any combination.]

                                                  [(II) Minimum length limit: No limit.]

                                                  [(III) It is unlawful to retain more than two bass of less than 18 inches in length.]

                                          [(ii)] Caddo Lake (Marion and Harrison counties).

                                                  (I) Daily bag limit: 8 (in any combination with spotted bass).

                                                  (II) Minimum length limit: 14 — 18 inch slot limit (largemouth bass); no limit for spotted bass.

                                                  (III) It is unlawful to retain largemouth bass between 14 and 18 inches. No more than 4 largemouth bass 18 inches or longer may be retained. Possession limit is 10.

                                          (ii)[(iii)]Toledo Bend Reservoir (Newton, Sabine, and Shelby counties).

                                                  (I) Daily bag limit: 8 (in any combination with spotted bass).

                                                  (II) Minimum length limit: 14 inches (largemouth bass); no limit for spotted bass. Possession limit is 10.

                                          (iii)[iv] Sabine River (Newton and Orange counties) from Toledo Bend dam to a line across Sabine Pass between Texas Point and Louisiana Point.

                                                  (I) Daily bag limit: 8 (in any combination with spotted bass).

                                                  (II) Minimum length limit: 12 inches (largemouth bass); no limit for spotted bass. Possession limit is 10.

                                  (C) Bass: largemouth.

                                          (i) Chambers, Galveston, Hardin, Jefferson, Liberty (south of U.S. Highway 90), Newton (excluding Toledo Bend Reservoir), and Orange counties including any public waters that form boundaries with adjacent counties.

                                                  (I) Daily bag limit: 5.

                                                  (II) Minimum length limit: 12 inches.

                                          (ii) [Lake Conroe (Montgomery and Walker counties).]

                                                  [(I) Daily bag limit: 5.]

                                                  [(II) Minimum length limit: 16 inches.]

                                          [(iii)] Lakes Bellwood (Smith County), Davy Crockett (Fannin County), Kurth (Angelina County), Mill Creek (Van Zandt County), Nacogdoches (Nacogdoches County), Naconiche (Nacogdoches County), Purtis Creek State Park (Henderson and Van Zandt counties), and Raven (Walker).

                                                  (I) Daily bag limit: 5.

                                                  (II) Maximum length limit: It is unlawful to retain largemouth bass of 16 inches or greater in length. Largemouth bass 24 inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing but may not be removed from the immediate vicinity of the lake. After weighing the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.

                                          (iii)[(iv)] Lakes Bright (Williamson County), Brushy Creek (Williamson County), Casa Blanca (Webb County), Cleburne State Park (Johnson County), Fairfield (Freestone County), Gilmer (Upshur County), Marine Creek Reservoir (Tarrant County), Meridian State Park (Bosque County), Pflugerville (Travis County), Rusk State Park (Cherokee County), and Welsh (Titus County).

                                                  (I) Daily bag limit: 5.

                                                  (II) Minimum length limit: 18 inches.

                                          (iv)[(v)] Bedford Boys Ranch Lake (Tarrant County), Buck Lake (Kimble County), Lake Kyle (Hays County), and Nelson Park Lake (Taylor County).

                                                  (I) Daily bag limit: 0.

                                                  (II) Minimum length limit: No limit.

                                                  (III) Catch and release only.

                                          (v)[(vi)] Lakes Alan Henry (Garza County), Grapevine (Denton and Tarrant counties), Jacksonville (Cherokee County), and O.H. Ivie Reservoir (Coleman, Concho, and Runnels counties).

                                                  (I) Daily bag limit: 5.

                                                  (II) Minimum length limit: No limit.

                                                  (III) It is unlawful to retain more than two bass of less than 18 inches in length.

                                          (vi)[(vii)] Nasworthy (Tom Green)

                                                  (I) Daily bag limit: 5.

                                                  (II) Minimum length limit: 14 — 18 inch slot limit.

                                                  (III) It is unlawful to retain largemouth bass between 14 and 18 inches in length.

                                          (vii)[(viii)] Lakes Athens (Henderson County), Bastrop (Bastrop County), Buescher State Park (Bastrop County), Houston County (Houston County), Joe Pool (Dallas, Ellis, and Tarrant counties), Lady Bird (Travis County), [Mill Creek (Van Zandt County),] Murvaul (Panola County), Pinkston (Shelby County), Timpson (Shelby County), Walter E. Long (Travis County), and Wheeler Branch (Somervell County).

                                                  (I) Daily bag limit: 5.

                                                  (II) Minimum length limit: 14 — 21 inch slot limit.

                                                  (III) It is unlawful to retain largemouth bass between 14 and 21 inches in length. No more than 1 bass 21 inches or greater in length may be retained each day.

                                          (viii)[(ix)] Lakes Fayette County (Fayette County), Fork (Wood Rains and Hopkins counties), Gibbons Creek Reservoir (Grimes County), and Monticello (Titus County).

                                                  (I) Daily bag limit: 5.

                                                  (II) Minimum length limit: 16 — 24 inch slot limit.

                                                  (III) It is unlawful to retain largemouth bass between 16 and 24 inches in length. No more than 1 bass 24 inches or greater in length may be retained each day.

                                          (ix) Lake Lakewood (Williamson County).

                                                  (I) Daily bag limit: 3.

                                                  (II) Minimum length limit: 18 inches.

                                  (D) – (K) (No change.)

                                  (L) Gar, alligator.

                                          (i) Falcon International Reservoir (Starr and Zapata counties).

                                                  (I)[(i)] Daily bag limit: 5.

                                                  (II)[(ii)] No minimum length limit.

                                                  (III)[(iii)] No maximum length limit.

                                                  (IV)[(iv)] The provisions of this subparagraph expire on September 1, 2020.

                                          (ii) On the Trinity River and all tributary waters from the I-30 bridge in Dallas County downstream through Anderson, Ellis, Freestone, Henderson, Houston, Kaufman, Leon, Liberty, Madison, Navarro, Polk, San Jacinto, Trinity, and Walker counties to the I-10 bridge in Chambers County, including the East Fork of the Trinity River and all tributaries upstream to the Lake Ray Hubbard dam, the maximum length limit is 48 inches, except for persons selected by a department-administered drawing authorizing the take of a gar in excess of 48 inches in length.

                                          (iii) During May, no person shall fish for, take, or seek to take alligator gar in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge.

                                  (M) – (P) (No change.)

                         (2) Saltwater species. There are no exceptions to the provisions established in subsection (c)(5) of this section.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take, or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.

        The proposed amendment affects Parks and Wildlife Code, Chapter 61.

        §57.992. Bag, Possession, and Length Limits.

                 (a) (No change.)

                 (b) There are no bag, possession, or length limits on game fish, non-game fish, or shellfish, except as otherwise provided in this subchapter.

                         (1) – (3) (No change.)

                         (4) The statewide daily bag and length limits for commercial fishing shall be as follows.

                                 (A) – (B) (No change.)

                                  (C) Cobia.

                                          (i) Daily bag limit: 2.

                                          (ii) Minimum length limit: 40[37] inches.

                                          (iii) No maximum length limit.

                                  (D) – (E) (No change.)

                                  (F) Gar, alligator.

                                          (i) Daily bag limit:

                                                  (I) On Falcon International Reservoir: 5.

                                                  (II) Remainder of the state: 1.

                                                           (ii) No minimum length limit.

                                                           (iii) No maximum length limit except that on the Trinity River and all tributary waters from the I-30 bridge in Dallas County downstream through Anderson, Ellis, Freestone, Henderson, Houston, Kaufman, Leon, Liberty, Madison, Navarro, Polk, San Jacinto, Trinity, and Walker counties to the I-10 bridge in Chambers County, including the East Fork of the Trinity River and all tributaries upstream to the Lake Ray Hubbard dam, the maximum length limit is 48 inches.

                                                           (iv) During May, no person shall fish for, take, or seek to take alligator gar in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge.

                                                           (v) any person who takes an alligator gar in the public waters of this state other than Falcon International Reservoir shall report the harvest via the department’s website or mobile application within 24 hours of take. 

                                                           (vi) Between one half-hour after sunset and one half-hour before sunrise, any lawful means other than lawful archery equipment and crossbow may be used to take an alligator gar. No person may take an alligator gar by means of lawful archery equipment or crossbow between one half-hour after sunset and one half-hour before sunrise, or possess an alligator gar taken by means of lawful archery equipment or crossbow between one half-hour after sunset and one half-hour before sunrise.

                                  (G) — (I) (No change.)

                                  (J) Shark: all species (including hybrids and subspecies).

                                          (i) – (iv) (No change.)

                                          (v) Except for the species listed in clause (ii) – (iv) of this subparagraph, sharks may be taken using pole and line, but must be taken by non-offset, non-stainless-steel circle hook when using natural bait.

                                  (K) – (T) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on


Commission Agenda Item No. 1
Exhibit B

STATEWIDE OYSTER FISHERY PROCLAMATION
PROPOSED 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 amendment would rename a reef and prohibit the harvest of oysters for two years at six sites: two sites in Conditionally Approved Area TX-7 in Galveston Bay (Pasadena Reef and Pepper Grove Reef, approximately 56.7 and 4.5 acres, respectively), one site in Conditionally Approved Area TX-20 in Matagorda Bay (Noble Point Reef, 50 acres), and two sites in Approved Area TX-32 in Copano Bay (Sanctuary Reef and Non-Sanctuary Reef, 34.7 and 35.6 acres, respectively). The Texas Department of State Health Services (DSHS) regulates shellfish sanitation and designates specific areas where oysters may be harvested for human consumption. The designation of “Conditionally Approved” or “Approved” is determined by DSHS.

The temporary closures will allow for the planting of oyster cultch to repopulate in those areas and enough time for those oysters to reach legal size for harvest. Oyster cultch is the material to which oyster spat (juvenile oysters) attach in order to create an oyster bed.

        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. Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (Hurricane Ike, September 2008 and Hurricane Harvey, August 2017), as well as high harvest pressure. The department’s oyster habitat restoration efforts to date, have resulted in a total of approximately 1,539 acres of oyster habitat returned to productive habitat with these bays.

        House Bill 51 (85th Legislature, 2017) included a requirement that certified oyster dealers re-deposit department-approved cultch materials in an amount equal to thirty percent of the total volume of oysters purchased in the previous license year. For the 2018 fiscal year, this will result in the restoration of approximately fifteen acres.

        The Copano Bay sites are located in the proximity of Lap Reef and have been degraded due to a variety of stressors. The Nature Conservancy (TNC) secured funding through the Natural Resource Damage Assessment program to restore oyster habitat as a result of damages. The two sites in Copano Bay include 35.6 acres that will be restored on a commercial and recreationally-fished oyster reef and 34.7 acres that will serve as a sanctuary reef in this heavily fished bay system. The reef will be constructed of cultch materials of a size that will limit commercial harvest activities and provide a source of oyster larvae that will colonize other oyster habitat in this bay system.

        Noble Point Reef is being designated for closure for the same reason. Meteorological and climatic degradation, along with historical overutilization, has retendered the area incapable of sustaining oyster populations. The department anticipates that depositing cultch and closing the area for two years will result in the establishment of oyster populations that can be commercially and recreationally harvested in the future.

        The proposed amendment also would remove geographical descriptions of closed areas that were reopened to commercial and recreational exploitation under the terms of the current rule.

        The department designated Todd’s Dump Reef in Galveston Bay as a closed site in 2016. The proposed amendment would reauthorize another two-year closure, primarily because the department has determined that oyster development at the site, while encouraging, has not achieved the desired quantity or size to justify opening the site to harvest pressure. The department therefore deposited supplemental additional cultch material, necessitating an additional two-year closure period for spat to attach and grow to legal size in those areas. Additionally, the department discovered that Todd’s Dump Reef is an inaccurate name. The name of the actual reef complex is the Pasadena Reef. The proposed amendment would rectify the misnomer.

        Finally, the proposed amendment would remove reef complexes for which the two-year period has expired. Those reefs are now open for harvest.

2. Fiscal Note.

        Lance Robinson, Deputy Division Director, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is 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. Robinson also has determined that for each of the first five years that the rule as proposed is in effect, the:

                 (A) The public benefit anticipated as a result of enforcing or administering the proposed rule 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; the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices; the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach legal size and subsequent recreational and commercial harvest; and providing protection from harvest to a reef complex thus establishing a continual supply of oyster larvae to colonize oyster habitat within the bay system.

                 (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. 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 because the areas designated for closure have been degraded to the extent that they are moribund and no longer support any commercial exploitation, the closures effected by the proposed rules will not result in direct adverse economic impacts to any small business, microbusiness, or rural community. The department does note, however, that the three areas previously closed (South Redfish Reef, Texas City 1, and Texas City 2), are now home to healthy populations of oysters that have reached legal size and may be harvested by both recreational and commercial users.

        There will be no adverse economic effect on persons required to comply with the rule as proposed.

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

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

                 (E) 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 rule.

                 (F) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

                 (G) The department has determined that the proposed rules is in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).

        (H) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) will not repeal, expand or limit an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Dr. Tiffany Hopper, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650; email: tiffany.hopper@tpwd.texas.gov, or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendment is proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.

        The proposed amendment affects Parks and Wildlife Code, Chapter 76.

6. Rule Text.

        §58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

                 (a) – (b) (No change.)

                 (c) Area Closures

                         (1) (No change.)

                         (2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A) and (B) of this paragraph cease effect on November 1, 2021[2018].

                                  (A) Galveston Bay.

                                          (i) Pasadena Reef[Todd’s Dump Reef]. The area within the boundaries of a line beginning at 29° 29’ 55.4"N, 94° 53’ 40.1"W (29.498733°N, -94.894467°W; corner marker buoy A); to 29° 29’ 55.4"N, 94° 53’ 30.6"W (29.498724°N, -94.891834°W; corner marker buoy B); thence to 29° 29- 46.6"N, 94° 53- 30.4"W (29.496273°N, -94.891768°W; corner marker buoy C); thence to 29° 29’ 46.6"N, 94° 53’ 40.2"W (29.496273°N, -94.894495°W; corner marker buoy D); and thence back to corner marker buoy A.

                                          (ii) Pepper Grove Reef. The area within the boundaries of a line beginning at 29° 28’ 21.1"N, 94° 49’ 17.3"W (29.472517°N, -94.821472°W; corner marker buoy A); thence, to 29° 28’ 08.3"N, 94° 49’ 00.3"W (29.468971°N, -94.816744°W; corner marker buoy B); thence to 29° 27’ 58.9"N, 94° 49’ 09.7"W (29.466359°N, -94.81935°W; corner marker buoy C); thence to 29° 28’ 12.0"N, 94° 49’ 26.5"W (29.469989N, -94.824025°W; corner marker buoy D); and thence and back to corner marker buoy A. [South Redfish Reef. The area within the boundaries of a line beginning at 29° 28’ 21.1"N, 94° 49’ 17.3"W (29.472517°N, -94.821472°W; corner marker buoy A); thence, to 29° 28’ 08.3"N, 94° 49’ 00.3"W (29.468971°N, -94.816744°W; corner marker buoy B); thence to 29° 27’ 58.9"N, 94° 49’ 09.7"W (29.466359°N, -94.81935°W; corner marker buoy C); thence to 29° 28’ 12.0"N, 94° 49’ 26.5"W (29.469989N, -94.824025°W; corner marker buoy D); and thence and back to corner marker buoy A.]

                                          [(iii) Texas City 1 (Mosquito Island). The area of Middle Reef contained area within the boundaries of a line beginning at 29° 23’ 52.1"N, 94° 52’ 41.3"W (29.397811°N, -94.878138°W; corner marker buoy A); thence to 29° 23’ 52.3"N, 94° 52’ 39.2"W (29.39786°N, -94.87757°W; corner marker buoy B); thence to 29° 23’ 45.1", 95° 52’ 37.9"W (29.395867°N, -94.877184°W; corner marker buoy C); thence to 29° 23’ 44.9"N, 95° 52’ 39.9"W (29.395813°N, -94.877753°W; corner marker buoy D); and thence back to corner marker buoy A.]

                                          [(iv) Texas City 2 (Fishing Pier). The area within the boundaries of a line beginning at 29° 22’ 58.2"N, 94° 51’ 39.7"W (29.382833°N, -94.861037°W; corner marker buoy A); thence to 29° 22’ 57.5"N, 94° 51’ 36.2"W (29.382645°N, -94.860069°W; corner marker buoy B); thence to 29° 22’ 56.3"N, 94° 51’ 36.6"W (29.382301°N, -94.860169°W; corner marker buoy C); thence to 29° 22’ 57.0"N, 94° 51’ 40.1"W (29.382491°N, -94.861135°W; corner marker buoy D); and thence back to corner marker buoy A.]

                                  (B) Matagorda Bay – Noble Point Reef. The area within the boundaries of a line beginning at 28° 39’ 38.79"N, -96° 36’ 33.68"W (28.660774°N, -96.609355°W); thence to 28° 39’ 38.79"N, -96° 36’ 29.15"W (28..660774°N, -96.608098°W); thence to 28° 39’ 33.38"N, -96° 36’ 33.68"W (28.659270°N, -96.609355°W); thence to 28° 39’ 33.38"N, -96° 36’ 29.15"W (28.659270°N, -96.608098°W)[Matagorda Bay — Half-Moon Reef. The area within the boundaries of a line beginning at 28° 34’ 18.8"N, 96° 14’ 08.4"W (28.571889°N, -96.235667°W; corner marker buoy A); thence to 28° 34’ 15.7N, 96° 13’ 59.4"W (28.571028°N, -96.233167°W; corner marker buoy B); thence to 28° 33’ 53.8"N, 96° 14’ 19.5W (28.564944°N, -96.23875°W; corner marker buoy C); thence to 28° 33’ 57.0"N, 96° 14’ 28.5"W (28.565833°N, -96.24125°W; corner marker buoy D); and thence back to corner marker A.]

                                  (C) Copano Bay.

                                          (i)_Sanctuary Reef. The area within the boundaries of a line beginning at  28° 8’ 33.82”N,  -97° 3’ 6.47”W (28.142728°N, -97.051796°W; corner marker buoy A); thence to 28° 8’ 34.5”N, -97° 3’ 24.18”W (28.142917°N, -97.056718W; corner marker buoy B); thence to 28° 8’ 31.39”N, -97° 3’ 29.11”W (28.142052°N, -97.058085°W; corner marker buoy C); thence to 28° 8’ 23.32”N, -97° 3’ 29.09”W (28.139812°N, -97.058081°W; corner marker buoy D); thence to 28° 8’ 20.78”N, -97° 3’ 26.77”W (28.139106°N, -97.057435°W; corner marker buoy E); and thence back to corner marker A.

                                          (ii) Non-Sanctuary Reef. The area within the boundaries of a line beginning at 28° 8’ 23.23”N, -97° 2’ 53.02”W (28.139785°N, -97.048062°W; corner marker buoy A); thence to 28° 8’ 24.76”N, -97° 3’ 4.99”W (28.14021°N, -97.051387°W; corner marker buoy B); thence to 28° 8’ 12.98”N, -97° 3’ 6.69”W (28.136938°N, -97.051859°W; corner buoy C); thence to 28° 8’ 8.61”N, -97° 2’ 52.48”W (28.135726°N, -97.047912°W; corner buoy D); and thence back to corner marker A.

                                  (C) – (I) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on