Commission Meeting Agenda Item No. 5
Presenter: Les Casterline
Action
Fish Pass Proclamation
Recommended Adoption of Proposed Changes
August 24, 2023
I. Executive Summary: Staff seeks adoption of a proposed amendment to rules governing activities in the Cedar Bayou Fish Pass. The amendment would clarify the delineation of restricted areas within the fish pass.
II. Discussion: Under the provisions of Texas Parks and Wildlife Code section 66.204, the Texas Parks and Wildlife Commission is authorized to adopt rules regarding the placement of obstructions, traps, and mooring in fish passes and the marking of restricted areas in any natural or artificial pass that is opened, reopened, dredged, excavated, constructed, or maintained by Texas Parks and Wildlife Department (TPWD) as a fish pass between the Gulf of Mexico and an inland bay.
The Cedar Bayou Fish Pass is a natural channel that connects Mesquite Bay to the Gulf of Mexico and functions as a migratory path for various aquatic species to and from the estuary. TPWD has become aware of possible angler and boater confusion with respect to the demarcation of restricted areas within the pass. The proposed amendment would address that issue.
At the Commission Work Session meeting on May 24, 2023, staff was authorized to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the July 21, 2023, issue of the Texas Register (48 TexReg 3971). A summary of public comment on the proposed rules will be presented at the meeting.
III. Recommendation: Staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts amendments to 31 Texas Administrative Code §57.901, concerning Prohibited Acts, as listed in Exhibit A, with changes as necessary to the proposed text as published in the July 21, 2023, issue of the Texas Register (48 TexReg 3971).”
Attachment – 1
Commission Agenda Item No. 5
Exhibit A
FISH PASS PROCLAMATION
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §57.901, concerning Prohibited Acts.
The proposed amendment would retitle the section to more accurately reflect its content and clarify the delineation of restricted areas within the Cedar Bayou Fish Pass. Cedar Bayou is a natural channel that connects Mesquite Bay to the Gulf of Mexico and functions as a migratory path for various aquatic species to and from the estuary. In 1939, the Texas Legislature prohibited the operation, possession, or mooring of vessels and the placement of pilings, wires, ropes, cables, nets, traps or other obstructions within 2,800 feet of the point where a fish pass connects with the Gulf of Mexico or connects with an inland bay, and further required this restricted area to be permanently marked. Cedar Bayou has been periodically dredged and maintained since that time and the department has erected signs indicating that Cedar Bayou is a fish pass.
The 75th Texas Legislature in 1997 amended Parks and Wildlife Code, §66.204, to specifically authorize the commission to “regulate the placement of obstructions, traps, and mooring in fish passes and the marking of restricted areas in any natural or artificial pass that is opened, reopened, dredged, excavated, constructed, or maintained by the department as a fish pass between the Gulf of Mexico and an inland bay.” Consequently, the commission promulgated the current rule in 1998. The department has determined that the current rule should be amended to make it clear that “fish pass” and “restricted area” are not synonymous terms; therefore, the proposed amendment would add new subsection (b) to make it clear that the restricted area within the fish pass where no vessels are allowed is distinct from the remainder of the fish pass where vessels may not be anchored or moored for a period exceeding two consecutive days.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 government as a result of enforcing or administering the rule as proposed.
3. Public Benefit/Cost Note.
Mr. Macdonald also has determined that for each of the first five years that the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be clarity of department regulations.
(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 a determined that because the rule as proposed does not directly regulate any small business, microbusiness, or rural community, there will be no adverse economic impact on small businesses, microbusinesses, or rural communities as a result of the proposed rule.
(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) 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 a fee;
(5) create a new regulation;
(6) not expand 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 Assistant Commander Les Casterline, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4853; email: le.fisheries@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, §66.204, which authorizes the commission to make ruled governing the placement of obstructions, traps, and mooring in fish passes and the marking of restricted areas in any natural or artificial pass that is opened, reopened, dredged, excavated, constructed, or maintained by the department as a fish pass between the Gulf of Mexico and an inland bay.
The proposed amendment affects Parks and Wildlife Code, Chapter 66.
6. Rule Text.
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
§57.901. Cedar Bayou Fish Pass[Prohibited Acts].
(a) Within the distance inside [area in] Cedar Bayou between [a Department sign erected] where Mesquite Bay flows into Cedar Bayou and a[the] “No Vessels” marker or [Department] sign erected by the department near the point where Cedar Bayou[the pass] empties into the Gulf of Mexico, it is an offense [unlawful] to:
(1) [to] place any type of trap; or
(2) anchor or moor a vessel, barge, or structure for a period exceeding two consecutive days.
(b) The distance inside Cedar Bayou from the mouth of the pass where it empties into the Gulf of Mexico to a “No Vessels” marker or sign erected by the department is designated as a restricted area subject to the provisions of Parks and Wildlife Code, §66.204(b).
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