Proposed Amendments to Thermal Refuge Rule

Comment online through 05:00 p.m. November 3, 2021.

Required Information

Please enter your name and county.



I currently hold:         

Please limit submissions to one per person.


STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION

FREEZE EVENT CLOSURE RULES

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §57.975, concerning Freeze Event Closures.

        The proposed amendment would alter definitions and provide for the declaration of freeze closures in advance of expected severe cold weather.

        The current rule was promulgated in 2005 to protect vulnerable fish populations during periods of intense cold weather. Department data indicate that extensive fish mortality can occur, and has, as a result of unseasonable cold weather and freeze events. During such events, prolonged periods of freezing or near-freezing air temperatures can cause water temperatures to exceed lethal thresholds for numerous marine fish species. As water temperatures fall, fish tend to congregate in areas of deeper water that serve as temporary thermal refuges because they don’t cool as quickly as shallower waters. As fish become concentrated in the thermal refugia, they are vulnerable to overharvest, which could result in depletion of the resource. Following the severe freeze event of February 2021, the department assessed its ability to effectively respond to such events. Department social dimension and outreach activities  indicate not only support for freeze closures, but a desire for them to be declared pre-emptively and in areas where they currently are not declared. The proposed amendment is intended to optimize the effectiveness of the current rule.

        The definition of “affected area” in current rule is restricted to areas of coastal water “where fishing from the bank is possible.” The department has determined that during freeze events, fish can congregate in thermal refugia at various distances from the bank or shore, including distances beyond which it is possible to fish from the bank or shore; therefore, the proposed amendment would remove that qualification from the definition, which would allow freeze event closures to be declared in any coastal waters rather than restricting the closures to only those areas where bank fishing is possible. The proposed amendment also makes nonsubstantive changes for clarity.

        Under current rule, a freeze is defined as “a period of cold weather that begins when the air temperature drops below 32 degrees Fahrenheit.” The department has determined that the current rule should be modified to reflect the fact that water temperature is a more important factor than air temperature in terms of direct environmental impact on fish. Species such as spotted seatrout and red drum begin to suffer cold-related mortality at 40° F; therefore, the proposed amendment would establish a 40° F water temperature as the new threshold for environmental conditions necessary to trigger a potential freeze event closure. Current rules do not provide the criteria to be used by the department for determining when a freeze closure will be rescinded. Proposed new subsection (c) would authorize the Executive Director to allow fishing in affected areas to resume when water temperatures, as measured by select National Oceanic and Atmospheric Administration (NOAA) tide stations, reach a minimum of 50° F and are expected to remain above 40° F for at least 48 hours. The department has determined that fish begin to disperse from thermal refugia and become less vulnerable to overharvest when water temperatures reach 50° F and do not drop below 40° F for at least 48 hours. The proposed amendment also makes nonsubstantive changes for clarity.

        The current rule provides for the declaration of freeze event closures when a freeze “has occurred.” The department has determined that because the purpose of the rule is to prevent overharvest of vulnerable fish populations, the optimal use of the closure mechanism would be to allow areas to be closed in advance of expected unfavorable environmental conditions rather than after those conditions already exist. Therefore, the proposed amendment would allow the declaration of freeze event closures in anticipation of freeze events. The proposed amendment also makes changes to subsection (d) to comport the contents of that section with alterations made elsewhere regarding the timeframes for freeze closure declarations.

2. Fiscal Note.

        Dakus Geeslin, Science and Policy Branch Chief, 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 by protecting fisheries resources from depletion.

        (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 will not result in direct adverse impacts on small businesses, micro-businesses, or rural communities because it will not result in either more frequent or more prolonged freeze event closures, and in any casethe department notes that the proposed rule will result in an overall positive economic impact because it optimizes the department’s ability to protect stocks and allow them to recover more quickly after population impacts from freeze events, which would have the effect of minimizing the adverse economic impacts of freeze events. Additionally, the department expects that closures will continue to be infrequent, as freezes are rare and brief events on the coast, and closures typically apply to limited areas.

        (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) not repeal, expand, or limit a regulation;

                 (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 rule 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 proposal may be submitted to Dakus Geeslin (Coastal Fisheries) at (512) 389-8734, e-mail: dakus.geeslin@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

        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 game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

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

6. Rule Text.

        §57.975. Freeze Event Closures.

                 (a) Definitions. For purposes of this section, the following terms shall have the following meanings:

                          (1) Affected area — an area of coastal water [where fishing from the bank is possible and] where game fish are known or expected to congregate in response to [take refuge from] cold weather conditions, making them vulnerable to overharvest.

                         (2) Freeze — a period of cold weather during which air temperatures are expected to cause coastal water temperatures to fall below 40° F, creating [that begins when the air temperature drops to or below 32 degrees Fahrenheit and creates] a risk of depletion of one or more game fish species.

                 (b) The Executive Director shall provide appropriate notice to the public that a closure in anticipation of a freeze has been declared[has occurred] and fishing in the affected area or areas is prohibited. The Executive Director shall provide appropriate public notice as to when fishing in the affected area or areas is allowed to resume.

        (c) The Executive Director may allow fishing in affected areas to resume when water temperatures, as measured by select National Oceanic and Atmospheric Administration (NOAA) tide stations, reach a minimum of 50° F and are expected to remain above 40° F for at least 48 hours.

                 (d) [(c)] No person shall take or attempt to take any aquatic life by any means in an affected area [during a freeze] after the Executive Director has given notice to the public that [a freeze has occurred and] fishing in the affected area is prohibited and before the Executive Director gives notice that fishing may resume.

        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

Comment on Proposed Amendments to Thermal Refuge Rule
  •   
  •   
  •   

  •  
    The comment limit is 5,000 characters per item.

Submit Your Comments
  • Make sure that you filled in your name and county of residence near the top of the page.
  • When you are finished making your choices, click the Submit button below.
  • Please limit submissions to one per person.

Clear the form and start over.