Commission Agenda Item 4
November 7, 2024
- Item Type: Action
- Presenter: Lindsey Savage
Statewide Oyster Fishery Proclamation – Temporary Closure of Oyster Restoration Areas in Galveston Bay – Recommended Adoption of Proposed Changes
I. Executive Summary:
Staff seeks adoption of a proposed amendment to rules relating to the Statewide Oyster Fishery Proclamation. The proposed amendment would temporarily close 543 acres across two restoration sites in Galveston Bay for two harvest seasons in order to conduct oyster habitat restoration activities and allow oysters to repopulate these areas and reach market size.
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. Additionally, Texas Parks and Wildlife Code section 76.115 authorizes the Commission to close an area to the taking of oysters when it 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 (like Hurricane Ike in September 2008 and Hurricane Harvey in August 2017), as well as high harvest pressure. Texas Parks and Wildlife Department (TPWD) has restored approximately 800 acres of oyster habitat with cultch placement techniques such as those to be used here. The proposed closures are expected to result in the mitigation and restoration of approximately 139 acres of productive oyster habitat, with projects being conducted by TPWD and the U.S. Army Corps of Engineers.
At the Commission Work Session meeting on August 21, 2024, staff was authorized to publish the proposed amendment in the Texas Register for public comment. The proposed amendment appeared in the October 4, 2024, issue of the Texas Register (49 TexReg 8057). A summary of public comment on the proposed amendment will be presented at the time of the meeting.
III. Recommendation:
Staff recommends that the Commission adopt the following 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 October 4, 2024, issue of the Texas Register (49 TexReg 8057).”
Attachment – 1
Exhibit A – Commission Agenda Item No. 4
STATEWIDE OYSTER FISHERY PROCLAMATION PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department 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 temporarily prohibit the harvest of oysters for two years within the boundary of the restoration area on two reefs in Conditionally Approved Area TX-6 in Galveston Bay (approximately 529 acres on Dollar Reef and approximately 14 acres on Desperation Reef). The proposed amendment would temporarily close a total of 543 acres to oyster harvest for two years. 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 repopulation in those areas after planting of oyster cultch, 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 restoration activities also will establish stable substrate and provide suitable conditions for spat settlement and oyster bed development.
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. TPWD has restored approximately 800 acres of oyster habitat with cultch placement techniques such as those used here.
The proposed amendment would close 14 acres on Desperation Reef in Galveston Bay for cultch placement through funding generated through H.B. 51 (85th Legislature, 2017), which 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. Additionally, construction associated with the Houston Ship Channel (HSC) Expansion Improvement Project resulted in unavoidable adverse impacts to oyster reefs. During the Final Interagency Feasibility Report-Environmental Impact Statement, mitigation efforts were proposed, consisting of the restoration of oyster reef in Galveston Bay to compensate for the loss of habitat. In coordination with resources agencies, the United States Corps of Engineers selected areas on Dollar Reef and San Leon Reef for restoration. Both sites were impacted by Hurricane Ike and this area has been the focus of recent TPWD efforts to restore oyster reef. This mitigation project includes restoration on seven separate areas ranging in size from 13 acres to 20 acres. The proposed closure of 529 acres includes this network of seven restoration areas. The closure area is a perimeter surrounding the totality of the restoration areas because the individual closed areas are close to one another and the department seeks to eliminate potential confusion that could result from closing restoration areas individually. Parts of this area were closed in 2022 and that closure would have expired in 2024; however, due to the additional restoration efforts, the proposed amendment would expand the closure area and extend the period of closure for another two years.
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 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 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. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
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) 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.
(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).
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Hanna Bauer, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4378; 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.
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)–(ii) cease effect on November 1, 2025. The provisions of subparagraph (A)(iii)-(iv) cease effect on
November 1, 2026. The provisions of subparagraph [(A)(iii) and] (B) of this paragraph cease on November 1, 2024.
(A) Galveston Bay.
(i) – (ii) (No change.)
(iii) Dollar Reef HSE Mitigation Site. The area within the boundaries of a line beginning at 29° 27’ 32.85”N, 94° 53’ 45.62”W (29.459125°N, 94.896006°W, corner marker buoy A); thence to 29° 27’ 04.95”N, 94° 52’ 39.17”W
(29.451376°N, 94.877548°W, corner marker buoy B); thence to 29° 26’ 27.69”N, 94° 53’ 02.34”W (29.441026°N, 94.883984°W, corner marker buoy C); thence to 29° 26’ 42.34”N, 94° 53’ 37.31”W (29.445094°N, 94.893697°W, corner marker buoy D); thence to 29° 27’ 25.61”N, 94° 53’ 52.37”W (29.457114°N, 94.897881°W, corner marker buoy E); and thence back to buoy A.[ 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.]
(iv) Desperation Reef. The area within the boundaries of a line beginning at 29° 29’ 34.40”N, 94° 52’ 53.08”W (29.49289°N, 94.88141°W, corner marker buoy A); thence to 29° 29’ 35.69”N, 94° 52’ 46.70”W (29.49325°N, 94.87964°W,
corner marker buoy B); thence to 29° 29’ 28.14”N, 94° 52’ 41.56”W (29.49115°N, 94.87821°W, corner marker buoy C); thence to 29° 29’ 26.56”N, 94° 52’ 51.53”W (29.49071°N, 94.88098°W, corner marker buoy D); thence back to buoy A.
(B) – (L) (No change.)
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Issued in Austin, Texas, on