Proposed Changes to Oyster Rules - Closed Areas for Oyster Restoration

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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 prohibit the harvest of oysters for two years at six sites: 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), one site in Conditionally Approved Area TX-6 in Galveston Bay (Resignation Reef, 27.2 acres), one site in Conditionally Approved Area TX-1 in Galveston Bay (Pepper Grove Reef, 11.9 acres), and one site in Approved Area TX-30 in Aransas Bay (Grass Island Reef, 80 acres). 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 proposed amendment would also correct the name of a reef complex in subsection (c)(2)(A)(ii). The current rules refer to that area as South Redfish Reef. It is more commonly known as Pasadena Reef.

        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 1,720 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. For the 2021 fiscal year, the department anticipates this requirement will result in the restoration of more than thirty acres. Funds generated from House Bill 51 were used to restore 4.5 acres on Pepper Grove Reef in 2019 and are expected to be used to restore up to 27.2 acres on Resignation Reef in 2020-2021.

        Following Hurricane Harvey in 2017, the National Marine Fisheries Service (NMFS) awarded the Texas Parks and Wildlife Department over $13 million of fisheries disaster relief funding that was appropriated by Congress under the Bipartisan Budget Act of 2018 (P.L. 115-123). The notification to the governor of Texas from National Marine Fisheries Service (NMFS) stated that funds should be spent to “strengthen the long-term economic and environmental sustainability of the fishery”, and over $4 million was dedicated specifically to oyster restoration activities.  A portion of these funds, combined with funding generated by House Bill 51 (2017) and the Shell Recovery Program (Chapter 76.020, Senate Bill 932, 82nd Leg., 2011), will be used to restore oyster habitats within an 80-acre area on Grass Island reef in Aransas Bay. Oyster abundance on this reef has severely declined over time, and average oyster abundance on Grass Island is 75% less than the average oyster abundance on other reefs in Aransas Bay. The portion of the 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.

        The upper Galveston Bay sites are located in the proximity of Beasley Reef near Trinity Bay and have been degraded due to a variety of stressors. The Nature Conservancy (TNC) secured funding through the National Fish and Wildlife Foundation (NFWF) Gulf Environmental Benefit Fund (GEBF) program to restore oyster habitat. The three sites in upper Galveston Bay include two 16.9-acre sites that will be restored on a degraded oyster reef that is commercially- and recreationally-fished, and 23.0 acres that will serve as a sanctuary reef. The sanctuary 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.

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:

                 (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. The department does note, however, that numerous areas previously closed (South Redfish Reef, Texas City 1, and 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.

        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 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) 389-4650; 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)(i) –(ii), (B), and (C)[(A) and (B)] of this paragraph cease effect on November 1, 2021. The provisions of subparagraphs (A) (iii) – (vii), (D) and (E) of this paragraph cease effect on November 1, 2022.

                         (A) Galveston Bay.

                                  (i) (No change)

                                  (ii) Pasadena Reef[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) 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.         

                         (iv) 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.

                                  (v) 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.     

                         (vi) 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.

                                  (vii) 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.

                 (B) – (C) (No Change.)

                         (D) 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.

                         (E) [(D)] Christmas Bay, Brazoria County.

                         (F) [(E)] Carancahua Bay, Calhoun and Matagorda County.

                         (G) [(F)] Powderhorn Lake, Calhoun County.

                         (H) [(G)] Hynes Bay, Refugio County.

                         (I) [(H)] St. Charles Bay, Aransas County.

                         (J) [(I)] South Bay, Cameron County.

                         (K) [(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.

        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

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