Commission Meeting Agenda Item No. 4
Presenter: Robin Riechers
Action
Statewide Oyster Fishery Proclamation – Closure of Oyster Reef Areas and Temporary Closure of Oyster Restoration areas in Galveston Bay and San Antonio Bay – Recommended Adoption of Proposed Changes
November 3, 2022
I. Executive Summary: Staff seeks adoption of the proposed changes to the Statewide Oyster Fishery Proclamation regarding the closure of oyster reefs in Ayres, Mesquite, and Carlos Bays to oyster harvest and the temporary closure of several restoration sites in Galveston Bay and San Antonio Bay for two harvest seasons in order to conduct oyster habitat restoration activities and allow oysters to repopulate these areas and reach market size. The proposed amendment would also extend the existing temporary closure for one year at three sites in Galveston Bay.
II. Discussion: Under Texas Parks and Wildlife Code, section 76.301, the Texas Parks and Wildlife Commission (Commission) is authorized to regulate the taking, possession, purchase, and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters. Under section 76.301(b), the Commission shall consider measures to prevent the depletion of oyster beds while achieving, on a continuing basis, the optimum yield for the oystering industry based on the best available scientific information. Additionally, Texas Parks and Wildlife Code, section 76.115 authorizes the Texas Parks and Wildlife Department (TPWD) to close an area to the taking of oysters when the Commission finds that the area is being overworked, damaged, or the area is to be reseeded or restocked.
The Mesquite Bay complex, including Carlos and Ayres bays, contains ecologically important and sensitive oyster reefs that provide ecosystem services such as nursery habitat for fish and shoreline protection. Oyster harvest pressure in this minor bay complex has increased steadily over the past decade, while monitoring data from TPWD has shown highly variable trends and an overall lower relative abundance of oysters compared to neighboring bays. The ecological importance and sensitivity of these oyster reefs, coupled with the historically high harvest pressure and decreasing oyster abundance, makes this minor bay complex a candidate for permanent closure from harvest.
TPWD’s oyster habitat restoration efforts to date have resulted in a total of approximately 1,640 acres of oyster habitat returned to productive habitat within Texas bays. The proposed closures are expected to result in the restoration of approximately 185 acres of productive oyster habitat.
The proposed rules appeared in the September 30, 2022, issue of the Texas Register (47 TexReg 6400). A summary of public comment on the proposed rules will be presented at the time of the meeting.
III. Recommendation: The staff recommends that the Commission adopt the proposed motion:
“The Texas Parks and Wildlife Commission adopts an amendment to 31 Texas Administrative Code §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 September 30, 2022, issue of the Texas Register (47 TexReg 6400).”
Attachment – 1
Commission Agenda Item No. 4
Exhibit A
STATEWIDE OYSTER FISHERY PROCLAMATION
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department (TPWD) proposes an amendment to 31 TAC §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.
The proposed amendment would prohibit the harvest of oysters in Carlos Bay, Mesquite Bay, and Ayres Bay (hereafter referred to as the Carlos-Mesquite-Ayres complex). The closure to oyster harvest would protect ecologically sensitive and unique oyster habitat from the negative biological impacts of increased harvest pressure. The proposed amendment would also temporarily prohibit the harvest of oysters for two years within the boundary of one restoration area in Approved Area TX-24 in the San Antonio Bay system (Josephine’s Reef, 48 acres), and within the boundary of one restoration area in Conditionally Approved Area TX-6 in Galveston Bay (Dollar Reef, 80.2 acres). The proposed amendment would also extend the existing temporary closure for one year at three sites in Conditionally Approved Area TX-4 in upper Galveston Bay (Trinity Sanctuary Reef, Trinity Harvestable Reef 1, and Trinity Harvestable Reef 2; approximately 23.0, 16.9 and 16.9 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 "Approved" and “Conditionally Approved” is determined by DSHS.
Oyster reefs in Texas have been impacted by drought, flooding, and hurricanes (e.g. Hurricane Ike, September 2008 and Hurricane Harvey, August 2017; major flooding in the coastal bend during summer/fall 2021) as well as high harvest pressure.
Because dredge harvest activities significantly reduce the vertical relief and structural complexity of oyster reefs (Lenihan and Peterson 1998), dredge-associated habitat degradation can drastically reduce the ecosystem services (the economic value of the conditions and processes through which natural ecosystems, and the species that make them up, sustain and fulfill human life) that are provided by the vertical relief and structure of oyster reefs, such as shoreline protection and habitat provision (Lenihan et al. 2001). While dredging has had limited positive impact on small, privately cultivated oyster reefs where cultch is simultaneously placed (Mercaldo-Allen and Goldberg 2011), extensive dredging on wild (i.e., uncultivated) reefs has often been linked to widescale loss of oyster resources, and associated habitat loss has been linked with declines in biodiversity and abundance of coastal faunal communities (Beck et al. 2011). Reduction in vertical relief and structural complexity can lead to increased sedimentation and decreased nutrient availability to resident oysters as well as increased disease prevalence (Colden et al. 2017, Beck et al. 2011), which in turn leads to additional stress resulting in further habitat degradation and loss of resilience. An evaluation of long-term trends in global oyster fisheries shows that oyster fishery decline typically begins with a loss of vertical relief and complexity as a result of dredge related fishing practices (Beck et al. 2011).
The positive effects of protecting oyster habitat from harvest has been well-documented in the scientific literature; larval output and oyster density are significantly higher on restored reefs that are protected from harvest as compared to non-restored or harvestable restored reefs. These non-harvested restoration sites also have greater diversity in the size and age of oysters (Buzan et al. 2015, Peters et al. 2017). The protection from vertical degradation and harvest creates a protected source of broodstock that can enhance oyster populations in surrounding harvested areas (Brietburg et al. 2000). Thus, the increased recruitment and live oyster abundance associated with non-harvested restoration sites is directly linked to sustaining productive fisheries.
In 2017, the department closed six minor bays to oyster harvest (42 TexReg 6018). Those minor bays are unique in that they are relatively shallow systems containing intertidal and shallow-water oyster habitat adjacent to expansive seagrass beds and intertidal vegetation. Historically, oyster resources located in these minor bays and shoreline areas were rarely exploited, as commercial fishing was typically directed towards the more profitable and efficiently harvested reef complexes in larger and deeper waters; thus, the minor bays have functioned as de facto spawning reserves because harvest pressure was minimal and oyster larvae produced from these areas were available to populate oyster habitat on adjacent reefs and bays. However, as oyster resources became depleted on deep-water reefs, commercial harvest effort was redirected to shallow-water reefs. The resultant increase in harvest pressure and the consequent negative impacts to sensitive habitat complexes necessitated regulatory action to prohibit harvest in those systems.
In 2021, the department became aware of increasing harvest efforts for oysters in the Carlos-Mesquite-Ayres complex, which generated concerns with respect to the long-term impacts to habitat within the complex. Shellfish harvest is reported to the department by harvest area rather than bay system or individual reef system, but Mesquite Bay happens to have its own unique harvest area designation (TX-28). The total number of reported commercial vessels reporting harvest from Mesquite Bay during the 2021-2022 commercial oyster season was the highest on record (145 unique vessels compared to an average of 51 unique vessels in license years 2015-2021). Despite relatively early in-season closures for the harvest areas that make up Mesquite (closed December 21st), Carlos (closed January 19th), and Ayres (closed January 14th) bay area complex, the 2021-2022 season accounted for 30.4% of coastwide landings in an area that represents only 2.8% of total oyster habitat. The season is set to open on November 1 and runs until April 30 unless in-season closure thresholds are met and the areas are closed early by the department. The department has determined that in terms of ecological importance and risk of habitat loss, the harvest impacts on the Carlos-Mesquite-Ayres complex are consistent with similar conditions necessitating the closure in 2017 of the six minor bay systems mentioned previously in this preamble. Closure of the Carlos-Mesquite-Ayres complex will allow these reefs to serve as protected sources of broodstock that support population of adjacent harvest areas to achieve optimum yield on a continuing basis. Providing sustained broodstock sources to re-seed nearby oyster reefs promotes long-term sustainability of the resource and thus long-term viability of the commercial oyster industry. As oyster reefs are both habitat and the source of a harvested product, sustainable reefs are needed to ensure the long-term health of oyster resources and the additional habitat and ecosystem services they provide. The proposed amendment would allow efficient enforcement efforts in the protection of these reefs. Furthermore, the department has determined the amount of commercial harvest experienced in this relatively small area of oyster habitat is not sustainable for the long-term ecosystem health of these reef complexes.
The Carlos-Mesquite-Ayres complex area is characterized by both intertidal and deeper oyster reefs, expansive seagrass beds, and fringing salt marsh habitats. The orientation of the shallow reefs in the system provides protection against erosion of the shoreline and associated wetlands as well as sensitive seagrass habitats. The proximity of shallow water and intertidal oyster habitat to other estuarine habitat types (e.g., seagrasses and marshes) is a major factor affecting macrofauna (invertebrates that live on or in sediment or attached to hard substrates) density and community composition (Grabowski et al. 2005; Gain et al. 2017). Based on a wide-ranging literature review, Grabowski et al (2012) estimated an annual value of ecosystem services provided by oyster reefs in 2011 dollars at a maximum of $99,421 per hectare ($40,251 per acre; using a conversion of 2.47 acres per hectare) per year. Based on these values, ecosystem services provided by oyster reefs in the Carlos-Mesquite-Ayres complex are valued at a maximum of $85,694,379 per year (2,129 acres multiplied by $40,251 per acre). The minimum value of ecosystem services provided by the aforementioned reefs is calculated at $4,747,670 (2,129 acres multiplied by $2,230 per acre; Grabowski et al. 2012) with an average value of $8,899,220 (2,129 acres multiplied by $4,180 per acre; Grabowski et al. 2012).
Seagrasses, wetlands, and oyster reefs in this area are near Cedar Bayou and serve as critical nursery habitats for young fish and invertebrates recruiting to the estuary (including both red drum and blue crab) via Cedar Bayou pass (Hall et al. 2016). The protection and continued availability of this habitat may increase the growth, survival, and subsequent recruitment to the fishery for these organisms (Byer et al. 2017; Longmire et al. 2021). This habitat can have a positive economic impact on recreational fisheries (Grabowski et al. 2012). In 2018, the total economic impact of saltwater sportfishing in Texas was $3.66 billion (Southwick Associates 2020). For Aransas and San Antonio bays alone, the estimated total economic impact of recreational fishing in 2018 was $270.8 million based on angler effort in those areas. Protection of oyster reefs in those areas contributes to the support of a viable sportfish population and sportfish industry. Studies of recreational fishing opportunities resulting from the Half Moon Reef restoration project in Matagorda Bay indicate that the restored reef adds $691,000 to Texas’ gross domestic product each year and generates an additional $1.273 million in annual economic activity. The restored reef also created a dozen new jobs related to recreational fishing and $465,000 in annual labor income (Carlton et al. 2016)
In terms of both the number of commercial oyster boats fishing in this area and oyster landings, the Carlos-Mesquite-Ayres complex experienced similar increased harvest pressure in 2016-2017 as the six minor bays that were closed to oyster harvest mentioned earlier in this preamble (e.g., 1,227 vessel trips in Mesquite Bay compared to an average of 1,037 vessel trips in Christmas Bay in 2017). While harvest pressure in the Carlos-Mesquite-Ayres complex declined after the record high during the 2016-17 season, it has increased again in recent years. During the 2021-2022 commercial oyster season, the number of reported commercial vessel trips in Mesquite Bay (1,087 vessel trips) and the total commercial harvest (28,667 sacks) are the second highest on record. While landings on many of the reefs in Carlos Bay and Ayres Bay cannot be independently assessed because those data are aggregated into larger harvest areas (in this case, TX- 29 and TX-25, respectively), anecdotal observations reported by the public and department staff indicate increased harvest in these systems. Further, the department has been contacted by members of the public concerned that the structural integrity of the habitat in this complex has been degraded by oyster harvest effort in terms of physical structure and vertical relief. While the department does not have long-term monitoring data on physical habitat structure, live oyster abundance can be used as a proxy for habitat health, as oyster habitats are biogenic (the organisms create the habitat). Several of the reefs within this complex have live oyster abundances that are substantially lower than the average oyster abundance for the entire bay system, indicating that they may have become structurally degraded and thus a priority for protection.
Over the past year, oyster reefs in the Coastal Bend, a geographic area encompassing Corpus Christi Bay northward through Aransas Bay, have been negatively impacted by increased oyster mortality and the resultant impacts of commercial oyster fishing pressure that has been redirected to and concentrated on the remaining viable reef complexes. The preferred salinity range for oysters is 14-30‰ (mille, or tenth of a percent) for adults and 18-23‰ for egg and larval development. Spat (juvenile oysters) settling is optimized at 16-22‰ with diminishing settlement below 16‰ (Pattillo et. al., 1997). Additionally, when salinities drop below 10‰ "limited or no recruitment" occurs (La Peyre et al., 2013). While spawning in Texas is likely to occur in every month except July and August, peak spawning events occur from May to early June and again in September and October. During the summer and fall of 2021, many Texas estuaries experienced heavy rainfall and flooding, which brought salinities well below the preferred range for oyster recruitment and survival. Most notably, salinity in nearby Copano Bay dropped below the 10‰ threshold beginning in June 2021, and its monthly average ranged from 2.7‰ to 7.5‰ from June 2021 to December 2021. Sustained low salinity resulted in total oyster mortality over 50% in Copano Bay during fall 2021. Given that Copano Bay typically supported the commercial fishing effort in this area of the coast, much of the commercial fleet redistributed its effort to higher-salinity portions of the bay during the 2021-2022 commercial oyster season — -primarily the Carlos-Mesquite-Ayres complex. While observed salinities in this area were not as low as those observed in Copano Bay, they were still sub-optimal during the fall 2021 and winter 2021-2022 timeframe (i.e., <16‰ from July 2021-November 2021), which likely impacted the ability of the complex to recover from the effects of increased harvest pressure. The significant ecological value and sensitivity of the Carlos-Mesquite-Ayres complex, coupled with the increasing harvest pressure, have produced conditions consistent with those that necessitated the closure of the six minor bay systems in 2017.
Therefore, the proposed amendment would prohibit oyster harvest in all waters of Mesquite Bay, Carlos Bay, and Ayres Bay from a line drawn between two points at the southern end of Carlos Bay (28.11450, -96.92570; 28.11061, -96.88817) to a line drawn between two points at the northern end of Ayers Bay (28.21394, -96.81237; 28.18807, -96.79233). The proposed amendment would affect 2,129 acres of oyster habitat (approximately 2.8% of coastwide oyster habitat). The delineation of the closed areas will enhance enforcement efforts in the area.
The proposed temporary restoration closures will allow for the planting of oyster cultch in the restoration 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. The proposed temporary restoration closure for the reseeding or restoration of oyster areas and allowing the closure for two years ensures that adequate oyster spat can be recruited to the reef and allows enough time so that when the reef is reopened it will provide opportunity to harvest. Closing areas temporarily for reseeding or restoration supports the long-term sustainability of the oyster fishery while achieving optimum yield on a continuing basis. Allowing adequate time to ensure both growth and structure of the reef provides for longer term benefits to the fishery when the reef is reopened for harvest, provides benefits to adjacent reef areas in the terms of broodstock during the temporary protection, and considers the economic costs to ensure that restoration efforts are successful. As oyster reefs serve as both habitat and the source of harvested product, sustainable reefs are needed to ensure the long-term health of oyster resources and the additional habitat and ecosystem services they provide. The department has determined that efficient enforcement of the proposed amendment will be possible.
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 1,705 acres of oyster habitat returned to productive habitat within 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. Funds and materials generated from House Bill 51 are expected to be used to restore at least 24 acres on Josephine’s Reef in 2022.
Oyster abundance on this reef has severely declined over time, and average oyster abundance on Josephine’s Reef is now substantially lower than other reefs in the San Antonio Bay system based on an assessment of TPWD resource monitoring data. The portion of Josephine’s Reef selected for restoration is characterized by degraded substrates. The restoration activities will focus on establishing stable substrate and providing suitable conditions for spat settlement and oyster bed development.
Construction of the Houston Ship Channel Expansion Channel Improvement Project (HSC ECIP) will result in unavoidable adverse impacts to oyster reefs. During the Final Integrated Feasibility Report – Environmental Impact Statement for the HSC ECIP, mitigation was proposed in the form of restoring oyster reefs in Galveston Bay to compensate for the loss of habitat from the channel modifications. Two mitigation sites, Dollar Reef and San Leon Reef, were selected in coordination with appropriate resource agencies. Both sites were impacted by Hurricane Ike and have been the focus of TPWD efforts to restore reef in the bay.
The Dollar Reef Mitigation Site was recently constructed and completed under a contract awarded by the United States Army Corps of Engineers (USACE). The mitigation site consists of three oyster pads consisting of one 13.0-acre oyster pad (Dollar Reef Mitigation Pad A-1), one 17.4-acre oyster pad (Dollar Reef Mitigation Pad A-2), and one 14.2-acre oyster pad (Dollar Reef Mitigation Pad A-3). The pads are spaced approximately 800 feet apart and are oriented in a northeast-to-southwest direction. Portions of the mitigation site are within restricted harvest areas as defined by DSHS Order Number MR-1743, while the remaining area is within a conditionally approved area (TX-6); The restricted harvest areas are not included in the closure request.
The three sites in Galveston Bay TX-6 (Trinity Sanctuary Reef, Trinity Harvestable Reef 1, and Trinity Harvestable Reef 2) were temporarily closed in November 2020 in preparation for restoration, which was completed in January 2021. Abundant rainfall in the late spring and early summer of 2021 caused salinity to be unfavorably low in the area, which negatively impacted oyster recruitment to the restored reefs. No live oysters or spat were collected at any of the three sites during April and July 2021; a few live oysters were observed in November 2021. By January 2022, oysters had begun recruiting to the restoration sites with increased abundance, but these oysters have not yet had a chance to grow to maturity; as of April 2022, 100% of the sampled oysters were below market size. An additional year of closure will allow the oysters that have recruited to the restoration site to grow to maturity.
2. Fiscal Note.
Dakus Geeslin, Deputy 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 rule.
3. Public Benefit/Cost Note.
Mr. Geeslin 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 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 protection of a reef complex to preserve a continuing supply of oyster larvae to colonize oyster habitat and to provide various ecosystem services within the bay system; and to provide, within the precepts of sound biological management, optimum yield to the oystering industry.
The public benefit of protection of the Carlos-Mesquite-Ayres complex area is protection of an area characterized by both intertidal and deeper oyster reefs, expansive seagrass beds, and fringing salt marsh habitats. The orientation of the shallow reefs in the system provides protection against erosion of the shoreline and associated wetlands as well as sensitive seagrass habitats. The ecosystem services provided by oyster reefs in the Carlos-Mesquite-Ayres complex are valued at a maximum of $85,694,379 per year (2,129 acres multiplied by $40,251 per acre; Grabowski et al. 2012). The minimum value of ecosystem services provided by the aforementioned reefs is calculated at $4,747,670 (2,129 acres multiplied by $2,230 per acre; Grabowski et al. 2012) with an average value of $8,899,220 (2,129 acres multiplied by $4,180 per acre; Grabowski et al. 2012).
Healthy oyster reefs provide habitat for sportfish populations that can increase growth and recruitment to these areas, thus creating more opportunities for recreational fishing. While the department is unable to evaluate the exact economic effect that closing the Carlos-Mesquite-Ayres complex to commercial oyster harvest will have on recreational fishing in the area, it is important to note the large impact recreational saltwater fishing has on the state’s economy. In 2018, the total economic impact coastwide for saltwater sportfishing was $3.66 billion, worth $3.96 billion in 2021 when adjusted for inflation (Southwick Associates 2020). Using angler effort data to assign proportional impacts for San Antonio and Aransas Bays only, Texas anglers spent $141.6 million in retail sales ($153.4 million in 2021 dollars), creating $75.1 million in salaries and wages ($81.4 million in 2021 dollars). The total economic impact from recreational fishing in San Antonio and Aransas bays in 2018 was estimated to be $237.7 million ($257.5 million in 2021 dollars). These impacts are likely underestimates as they only account for anglers that live in Texas and not those who travel from out-of-state to fish Texas bays.
(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, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small business or rural economies. Those guidelines, updated in 2017, state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and rural communities 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.
To ensure that this analysis captures every small or micro-business affected by the proposed rules, the department assumes that most, if not all persons who hold a commercial oyster license qualify as small or micro-businesses. Department data indicate that there are currently 545 valid commercial oyster licenses in Texas.
Regarding the closure of the Carlos-Mesquite-Ayres complex, the department has determined that there will be adverse economic effects on small businesses, micro-businesses, and persons required to comply. The proposed rule would affect persons licensed by the department to harvest and sell oysters taken from public water. To evaluate the potential reduction in harvest resulting from the proposed closure of the Carlos-Mesquite-Ayres Bay complex, historical trends in commercial oyster harvest, ex-vessel (dockside, or first sale) value of harvest, and number of commercial oyster vessels reporting were examined for each of these areas. While the Mesquite Bay portion of this complex is its own shellfish harvest area (TX-28), the oyster reefs within the Carlos Bay and Ayres Bay portion of this complex make up 54.9% and 41.3% (respectively) of the oyster reefs within the larger shellfish harvest areas in which they are located (TX-29 and TX-25, respectively). The three-year average (license years 2019-2021) of commercial oyster harvest in Mesquite Bay (TX-28) constitutes 1.0% of the coastwide public season harvest (7,252 sacks). This harvest equates to a three-year average ex-vessel value of $254,021 (1.0% of coastwide value) for a three-year average of 71 commercial oyster boats reporting landings in Mesquite Bay, which equates to an ex-vessel value loss of approximately $3,557 per reporting vessel (Mesquite Bay portion only); however, the department notes that production can be highly variable, as shown in data from the 2016-2017 commercial oyster season, in which harvest from Mesquite Bay produced a record 34,588 sacks, which equates to $1,238,309 ex-vessel value for 113 commercial oyster boats. The 2021-2022 commercial oyster season (License Year (LY) 2022) was also a year of very high landings in Mesquite Bay (second highest s on record) despite a much-shortened season. Landings for LY 2022 were 28,667 sacks, which equates to $1,256,290 ex-vessel value for 145 commercial oyster boats.
Over the same period (i.e., license years 2019-2021), TX-29 (which contains the Carlos Bay portion of the proposed closure area) experienced a three-year average commercial oyster harvest of 31,758 (4.5% of coastwide landings), which equates to a $1,200,911 average ex-vessel value (4.5% of coastwide value) for an average of 129 commercial oyster boats. Similar to Mesquite Bay, the 2016-2017 commercial oyster season produced the highest landings on record for TX-29 (82,437 sacks), which equates to a $2,884,905 ex-vessel value for 179 oyster vessels. The 2021-2022 commercial oyster season (LY 2022) was also a high year for harvest in TX-29 (second-highest on record) with 79,537 sacks landed, which equates to $3,491,888 ex-vessel value for 260 commercial oyster boats. At the current time harvest data is not reported in a way that would allow for geospatial analysis of harvest or harvest effort on a per-boat basis; therefore, the department for this analysis assumes that landings, ex-vessel value, and number of oyster boat are distributed proportionally to the amount of oyster reef throughout TX-29. Given that 54.9% of the oyster reef in TX-29 is contained in the proposed Carlos Bay closure area, the three-year (license years 2019-2021) average landings, ex-vessel value, and number of oyster boats associated with the Carlos Bay portion of the proposed closure area would be 17,435 sacks (2.5% of coastwide landings) with an ex-vessel value of $659,300 (2.5% of coastwide ex-vessel value) for 71 vessels.
Lastly, over the same period (i.e., license year 2019-2021), TX-25 (which contains the Ayres Bay portion of the proposed closure area) experienced a three-year average commercial oyster harvest of 111,041 sacks (14.9% of coastwide landings), which equates to a three-year average of $3,969,931 ex-vessel value (14.7% of coastwide ex-vessel value) for an average of 271 commercial oyster boats. The 2019-2020 commercial oyster season produced a record-high harvest of 139,821 sacks, which equates to $5,449,091 ex-vessel value for 336 oyster vessels. For this analysis, the department again assumes that landings, ex-vessel value, and number of oyster boats are distributed proportionally to the amount of oyster reef throughout TX-25. Given that 41.3% of the oyster reef in TX-25 is contained in the proposed Ayres Bay closure area, the three-year (license years 2019-2021) average landings, ex-vessel value, and number of oyster boats associated with the Ayres Bay portion of the proposed closure area would be 45,859 sacks (6.1% of coastwide landings) with an ex-vessel value of $1,639,581 (6.1% of coastwide ex-vessel value) for 112 vessels.
The department estimates (based on the LY 2019-2021 three-year average) that in total the proposed closure of the Carlos-Mesquite-Ayres complex (adjusted proportionally to account for oyster reef) would result in total landings, ex-vessel value, and oyster boats reporting landings of 70,547 sacks (9.6% of coastwide landings) with an ex-vessel value of $2,552,903 for 213 vessels. On that basis, the department estimates that the adverse economic impact to small and micro businesses as a result of the rules would be $11,985 per vessel ($2,552,903 ex-vessel value / 213 reporting vessels). For contrast and to illustrate the variability of the data, the result in total landings, ex-vessel value, and oyster boats reporting landings for the Carlos-Mesquite-Ayres complex (adjusted proportionally to account for oyster reef) for LY 2022 was 94,608 sacks (30.4% of coastwide landings) with an ex-vessel value of $4,137,683 for 222 vessels. This represents the highest landings on record for this complex.
The department is required to determine if there are any direct adverse economic impacts to rural communities. The department has determined that there will be no direct impacts because the rule as proposed directly regulates only those persons engaged in harvest activities under a commercial oyster license and does not regulate any community or impose a direct cost, such as a fee, to a local government; however, the department is aware that there may be indirect impacts resulting from diminished commercial harvest . For further information and resources related to indirect economic impacts, visit the TPWD website at www.tpwd.texas.gov.
The department considered several alternatives to achieve the goals of the proposed rule while reducing adverse economic impacts to small businesses, micro-businesses, and rural communities.
One alternative considered was to maintain the status quo. This alternative was rejected because the department has determined that the current level of harvest in the Carlos-Mesquite-Ayres complex is unsustainable and to allow harvest to continue at the current rate would be to fail to fulfill the department’s statutory and regulatory responsibility to protect oyster resources, and by extension, other biologically interconnected systems and fisheries resources in this area. Failure to act would lead to continued oyster reef habitat degradation and reduction of ecosystem services the reef complexes provide to the area.
A second alternative was to prohibit the take of oysters in smaller areas or restrict the prohibition to a single bay system. The department rejected this alternative because the majority of sensitive and at-risk oyster reefs in this area occur where these bays converge; a closure in a smaller area or a single bay would not be sufficient to arrest or reverse the current negative impacts to oyster resources in the reef complex.
Another alternative considered was to calculate a maximum sustainable harvest value for the reef complex and allocate that value to licensees on a per-vessel quota basis. This alternative was rejected because this would not prevent concentration of harvest effort and resultant habitat degradation, would interfere with the optimum yield for the oystering industry by fracturing and fragmenting harvest efforts, would require development of some sort of system for fair allocation of opportunity (which could be problematic), and finally, would be difficult to enforce.
Regarding the temporary closure of sites for oyster restoration, the department has determined that because the areas designated for closure have been degraded to the extent that they no longer support sustainable commercial harvest, the closures affected by the proposed rule will not result in direct adverse economic impacts to any small business, microbusiness, or rural community. The department does note, however, that numerous areas previously closed temporarily to harvest for restoration activities (South Redfish Reef, Texas City 1, Texas City 2, Hanna’s Reef, and Middle Reef), are now home to healthy populations of oysters that have reached legal size and may be harvested by both recreational and commercial users.
(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 directly or generally 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 the proposed rule is consistent with the applicable provisions of Natural Resources Code, Chapter 33, regarding the Management of Coastal Public Land and 31 TAC §505.11, regarding Actions and Rules Subject to the Coastal Management Program.
(G) 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 expand an existing regulation (by creating new area closures);
(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) 389-8575; email: cfish@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, and §76.115, which authorizes the commission to close an area to the taking of oysters when the commission finds that area is being overworked or damaged or the area is to be reseeded or restocked.
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)(i)-(v) and (C) of this paragraph cease effect on November 1, 2022.] The provisions of subparagraphs (A)(i)-(vi)[(A)(vi) – (viii) ] and (B) of this paragraph cease effect on November 1, 2023. The provisions of subparagraph (A)(vii) and (C) cease on November 1, 2024.
(A) Galveston Bay.
[(i) Pepper Grove Reef. The area within the boundaries of a line beginning at 29° 29’ 14.7"N, 94° 40’ 01.0"W (29.487421°N, -94.666944°W; corner marker buoy A); thence, to 29° 29’ 14.8"N, 94° 39’ 52.3"W (29.48745°N, -94.664525°W; corner marker buoy B); thence to 29° 29’ 08.1"N, 94° 39’ 52.2"W (29.485596°N, -94.664497°W; corner marker buoy C); thence to 29° 29’ 08.0"N, 94° 40’ 00.9"W (29.485567°N, -94.666915°W; corner marker buoy D); and thence back to corner marker buoy A.]
[(ii) Resignation Reef. The area within the boundaries of a line beginning at 29° 28’ 54.3"N, 94° 52’ 23.6"W (29.481741°N, -94.873234°W; corner marker buoy A); thence, to 29° 28’ 49.3"N, 94° 52’ 35.4"W (29.480370°N, -94.876513°W; corner marker buoy B); thence to 29° 28’ 39.5"N, 94° 52’ 27.5"W (29.477627°N, -94.874316°W; corner marker buoy C); thence to 29° 28’ 47.7"N, 94° 52’ 18.1"W (29.479921°N, -94.871687°W; corner marker buoy D); and thence back to corner marker buoy A.]
(i)[(iii)] Trinity Sanctuary Reef. The area within the boundaries of a line beginning at 29° 38’ 26.2"N, 94° 51’ 53.1"W (29.640616°N, -94.864753°W; corner marker buoy A); thence, to 29° 38’ 22.9"N, 94° 51’ 48.7"W (29.639701°N, -94.863539°W; corner marker buoy B); thence to 29° 38’ 17.9"N, 94° 51’ 49.8"W (29.638304°N, -94.863857°W; corner marker buoy C); thence to 29° 38’ 13.2"N, 94° 51’ 50.1"W (29.636994°N, -94.863926°W; corner marker buoy D); thence to 29° 38’ 10.1"N, 94° 51’ 53.2"W (29.636131°N, -94.864777°W; corner marker buoy E); thence to 29° 38’ 17.1"N, 94° 52’ 01.3"W (29.638092°N, -94.867041°W; corner marker buoy F); and thence back to corner marker buoy A.
(ii)[(iv)] Trinity Harvestable Reef 1. The area within the boundaries of a line beginning at 29° 38’ 56.2"N, 94° 51’ 34.4"W (29.648936°N, -94.859552°W; corner marker buoy A); thence, to 29° 38’ 58.8"N, 94° 51’ 29.5"W (29.649673°N, -94.858202°W; corner marker buoy B); thence to 29° 38’ 55.4"N, 94° 51’ 27.1"W (29.648733°N, -94.857531°W; corner marker buoy C); thence to 29° 38’ 56.7"N, 94° 51’ 24.8"W (29.649075°N, -94.856906°W; corner marker buoy D); thence to 29° 38’ 50.5"N, 94° 51’ 20.5"W (29.647369°N, -94.855690°W; corner marker buoy E); thence to 29° 38’ 46.8"N, 94° 51’ 27.7"W (29.646345°N, -94.857704°W; corner marker buoy F); and thence back to corner marker buoy A.
(iii)[(v) ] Trinity Harvestable Reef 2. The area within the boundaries of a line beginning at 29° 36’ 47.0"N, 94° 52’ 23.7"W (29.613063°N, -94.873269°W; corner marker buoy A); thence, to 29° 36’ 37.2"N, 94° 52’ 22.9"W (29.610327°N, -94.873046°W; corner marker buoy B); thence to 29° 36’ 36.7"N, 94° 52’ 31.1"W (29.610187°N, -94.875306°W; corner marker buoy C); thence to 29° 36’ 46.5"N, 94° 52’ 31.9"W (29.612924°N, -94.875529°W; corner marker buoy D); and thence back to corner marker buoy A.
(iv)[(vi)] Dollar Reef. The area within the boundaries of a line beginning at 29° 27’ 30.44" N, 94° 52’ 03.23" W (29.458456 oN, -94.867565oW, corner marker buoy A); thence, to 29° 27’ 32.83" N , 94° 51’ 59.91" W (29.459121oN, -94.866643oW, corner marker buoy B); thence, to 29° 27’ 29.13" N, 94° 51’ 52.67" W (29.458094oN, -94.864632oW, corner marker buoy C); thence, to 29° 27’ 15.67" N, 94° 51’ 53.44" W (29.454535oN, -94.864846oW, corner marker buoy D); thence, to 29° 27’ 04.04" N , 94° 52’ 08.47" W (29.451124oN, -94.869021oW, corner marker buoy E) ; and thence back to corner marker buoy A.
(v)[(vii)] North Todd’s Dump Reef. The area within the boundaries of a line beginning at 29° 30’ 33.76” N , 94° 53’ 17.07” W (29.509379oN, -94.888077oW, corner marker buoy A); thence, to 29° 30’ 27.89” N , 94° 53’ 44.39” W (29.507749oN, -94.895666oW, corner marker buoy B); thence, to 29° 30’ 17.10” N, 94° 53’ 41.73” W (29.504752oN, -94.894926oW, corner marker buoy C); thence, to 29° 30’ 23.60” N, 94° 53’ 12.46” W (29.506556oN, -94.886797oW, corner marker buoy D); and thence back to corner marker buoy A.
(vi)[(viii)] Pepper Grove Reef – Middle Site. The area within the boundaries of a line beginning at 29° 29’ 15.83" N , 94° 40’ 01.01" W (29.487733oN, -94.666948oW, corner marker buoy A); thence, to 29° 29’ 15.93" N , 94° 39’ 52.30" W (29.487760oN, -94.66453oW, corner marker buoy B); thence, to 29° 29’ 14.81" N , 94° 39’ 52.28" W (29.487450oN, -94.664525oW, corner marker buoy C); thence, to 29° 29’ 14.71" N , 94° 40’ 00.99" W (29.487422oN, -94.666944oW, corner marker buoy D) ; and thence back to corner marker buoy A.
(vii) Dollar Reef HSE Mitigation Site. The area within the boundaries of a line beginning at 29° 27’ 22.92” N, 94° 53’ 46.44” W (29.456367° N, -94.896233° W, corner marker buoy A); thence to, 29° 27’ 13.62” N, 94° 53’ 23.80” W (29.453784° N, -94.889944° W, corner marker buoy B); thence to, 29° 26’ 51.77” N, 94° 53’ 40.51” W (29.447713° N, -94.894587° W, corner marker buoy C); thence to, 29° 27’ 18.96” N, 94° 53’ 49.96” W (29.455265° N, -94.897211° W, corner marker buoy D); and thence back to corner marker buoy A.
(B) (No change.)
[(C) Aransas Bay- Grass Island Reef. The area within the boundaries of a line beginning at 28° 06’ 17.9"N, 97° 00’ 25.6"W (28.104990°N, -97.007128°W; corner marker buoy A); thence, to 28° 06’ 06.1"N, 97° 00’ 12.7"W (28.101691°N, -97.003527°W; corner marker buoy B); thence to 28° 06’ 20.45"N, 96° 59’ 55.9"W (28.105682°N, -96.998876°W; corner marker buoy C); thence to 28° 06’ 32.3"N, 97° 00’ 08.9"W (28.108981°N, -97.002476°W; corner marker buoy D); and thence back to corner marker buoy A.]
(C) Espiritu Santo Bay- Josephine’s Reef. The area within the boundaries of a line beginning at 28° 18’ 42.6"N, 96° 35’ 48.9"W (28.311833°N, -96.596916°W; corner marker buoy A); thence, to 28° 18’ 34.7"N, 96° 35’ 42.0"W (28.309651°N, -96.594988°W; corner marker buoy B); thence to 28° 18’ 22.1"N, 96° 36’ 00.3"W (28.306142°N, -96.600075°W; corner marker buoy C); thence to 28° 18’ 30.0"N, 96° 36’ 07.2"W (28.308324°N, -96.602004°W; corner marker buoy D); and thence back to corner marker buoy A.
(D) – (I) (No change.)
(J) Mesquite Bay, Aransas and Calhoun counties.
(K) Carlos Bay, Aransas County. The area within the boundaries of Carlos Bay from the border of Mesquite Bay to a line beginning at 28°06’ 52.19”, 96° 55’ 32.52” (28.11450° N, -96.92570° W) and ending at 28° 06’ 38.19”, 96° 53’ 17.41” (28.11061°N, -96.88817° W).
(L) Ayres Bay, Calhoun County. The area within the boundaries of Ayres Bay from the border of Mesquite Bay to a line beginning at 28° 12’ 50.18”, 96° 48’ 44.53” (28.21394° N, -96.81237° W) and ending at 28° 11’ 17.05”, 96° 47’ 32.38” (28.18807° N, -96.79233° W).
(M) (J) Areas along all shorelines extending 300 feet from the water’s edge, including all oysters (whether submerged or not) landward of this 300-foot line.
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