Oyster Certificate of Location Rules – Proposed Changes

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OYSTER CERTIFICATE OF LOCATION RULES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §58.11 and §58.30, concerning the Statewide Oyster Fishery Proclamation. The proposed amendments are necessary as a result of the passage of Senate Bill (S.B.) 1032 by the 88th Texas Legislature (2023), which requires the commission to create a program by rule to manage the restoration of natural oyster beds. Although the provisions of S.B. 1032 direct the creation of a new program for the issuance of Certificates of Location (CoLs) for restoration purposes, because the department already administers a program that issues CoLs for harvest purposes under the same rules, the practical effect of the proposed amendments can best be thought of as the adaptation of current program rules for an additional purpose required by statute.

        Under Parks and Wildlife Code, Subchapter A, the department may “subject a natural oyster bed to location,” which then allows the department to issue a CoL that authorizes the planting of oysters to create a private oyster bed, which may then be harvested.  The provisions of S.B. 1032 require the commission to establish by rule a program for the restoration of natural oyster beds, delegating authority to the commission to establish fees, application requirements, location terms, renewal procedures, total area in each bay system to be occupied, siting and marking requirement, and any other requirements necessary to administer the program. The proposed amendments would implement such a program, make alterations where necessary to eliminate redundant, unnecessary, or obsolete language, and prevent conflicts with existing provisions applicable to CoLs issued for purposes of harvest.

        In addition to elements that implement specific provisions regarding program implementation, the proposed amendments restate statutory language of S.B. 1032 where appropriate or necessary. The department notes that statutory provisions already have the force and effect of law and need not be repeated; however, they are repeated here simply for ease of reference.

        The proposed amendment to §58.11, concerning Definitions, would alter paragraph (3) to include the planting of cultch in the definition of “Certificate of Location,” which is necessary to reflect the fact that the provisions of S.B. 1032 mandate a mechanism for the issuance of CoLs for restoration purposes. The proposed amendment also would add new paragraph (7) to define “cultch” as “substrate of appropriate size and composition for larval oyster attachments, such as shell, rock, or other non-toxic, department-approved material,” which is necessary to establish an unambiguous meaning for a term employed in the rules. Finally, the proposed amendment would alter the definition of “natural oyster bed” in paragraph (14) to repeat the statutory definition of the term provided in Parks and Wildlife Code, §76.001.

        The proposed amendment to §58.30, concerning Certificates of Location, would alter subsection (a)(1)(A) to reference the provisions of Parks and Wildlife Code, §76.003, as amended by S.B. 1032, which authorize the issuance of a CoL for degraded natural oyster beds. The proposed amendment also would remove current subsection (a)(1)(B), which is a repetition of a statutory provision that was included by S.B. 1032 and referenced in subsection (a)(1)(A).

        The proposed amendment also would alter subsection (a)(2) to provide that the term of a CoL issued for purposes of harvest is 15 years, which is a repetition of the provisions of Parks and Wildlife Code, §76.018. The proposed amendment would add new subsection (a)(3) to establish a 15-year term for CoLs issued for purposes of conducting restoration activities. The 15-year term was selected for the sake of consistency because it mirrors the current term established by statute for CoLs issued for purposes of harvest.

        Proposed new paragraph (5) would prohibit the harvest of oysters from CoLs issued for restoration purposes during the term of the CoL and subsequent renewals. The provision is necessary to ensure that restoration activities are the sole purpose for the CoL.

        Proposed new paragraph (6) would prohibit the movement of oysters from an area for which a certificate of location has been issued, which is necessary to ensure that restoration CoLs are not used as propagation sites for commercial activities, but serve only to restore natural populations of oysters in situ.

Proposed new paragraph (7) would allow the department to authorize a locator to conduct non-harvest activities following any potentially damaging events, such as extreme weather, on areas otherwise closed by the Texas Department of State Health Services, provided the locator has obtained prior written permission from the department (TPWD). The provision is intended to allow locators, when feasible, to monitor and protect their investment in a CoL following potentially damaging phenomena.

        The proposed amendment would retitle subsection (b) to reflect applicability to both types of CoLs. The proposed amendment would add new subsection (b)(2) to require the department to designate the dates and times the department is accepting applications for certificates of location, and to make such information publicly available. The current rule conditions the payment of the application fee “if applications are being accepted by the department,” which leaves unclear the question of when applications are in fact being accepted. The proposed alteration would clarify that issue. The contents of current paragraph (2) would be eliminated, as they are no longer necessary.

        Current §58.30(b)(4) requires, as part of the application process for a certificate of location, a department inspection of a prospective site for purposes of evaluating its suitability for issuance of a certificate of location and enumerates a list of factors the department may consider. The proposed amendment would require a consultation with the department prior to submission of an application (rather than a site inspection), add two additional factors (sediment overburden, other habitats) to the list of factors to be considered by the department, and redesignate the paragraph as new paragraph (3). The department has determined that a preliminary consultation with the department is an effective method for making an initial determination of the feasibility of a prospective certificate of location. The two additional factors being added to the list of factors to be considered by the department (sediment overburden, other habitats) are necessary to allow the department to more thoroughly assess the suitability of a location for the issuance of a certificate of location. Since the department is charged with the conservation of all aquatic resources, the consideration of impacts of a prospective certificate of location on other habitats is prudent.

        The proposed amendment would add new paragraph (4) to require an applicant for a CoL to identify which type of CoL is being sought (harvest or restoration), which is necessary because they are distinctly separate authorizations.

        The proposed amendment to subsection (b) would alter current paragraph (3) to allow for issuance of certificates of location to domestic corporations. The department has determined that because the application process identifies specific individuals who agree in writing by signing the application to be held responsible for conduct regulated by the department, there is an avenue to hold a person accountable in the event that violations occur. The proposed amendment also would require the submission of cartographic data (a map and the corner coordinates) to assist the department in analyzing the suitability of a prospective CoL. The department believes it is important to unambiguously identify the precise location and dimensions of a prospective CoL to prevent possible confusion or misunderstandings regarding the locations where activities under a CoL are authorized. Additionally, the proposed amendment would require a placement plan, accompanied by relevant information concerning the nature or composition of cultch materials, the quantity of those materials, and a chronology for their deployment, all of which are important factors for the department to consider in determining the suitability of a project. The proposed amendment would also add new paragraph (6) to provide that the department will make a decision to deny an application or issue a CoL based on the totality of factors involved, including the suitability of the prospective project with respect to purpose and size. The provision is necessary to ensure that all applicable factors are considered in a decision to allow or deny a CoL. The contents of current paragraph (3)(D) would be reworded and relocated to subsection (d)(1)(A)(iii).

        The proposed amendment to §58.30 would make several alterations in subsection (c) that affect the public hearing process on applications for a CoL. The proposed amendment would reword paragraph (1) to make the provisions of the paragraph contingent on a department determination that all siting requirements of the subchapter and Parks and Wildlife Code, Chapter 76, have been met. The current provision is worded in such a fashion as to imply that such a determination will always occur, which is not the case. The reference to Parks and Wildlife Code, Chapter 76, is added for ease of reference. Subparagraph (A) would require the department to hold a public hearing to evaluate public input with respect to an application for a CoL, and eliminate language regarding recent fishing activities at the site that were included by the provisions of S.B. 1032. This broadens the stated purpose of the public hearing to allow for inclusion of any relevant concerns the public may have regarding the proposed CoL. Subparagraph (B) would require the department to provide notice of the public hearing required by subparagraph (A), and would replace the current requirement for newspaper publication with a requirement for publication on the department’s official website and any other media outlet deemed appropriate. The proposed amendment also would reword subparagraph (D) and eliminate current subparagraph (E) to remove obsolete provisions and simply require the department, as part of the noticing process, to make information regarding an application for location publicly available, which is necessary to ensure that the public is aware of and given the opportunity to comment upon an application for a CoL. The amended provisions are generally necessary to reflect the wide availability and use of more contemporary communication channels.

        The proposed amendment to §58.30 would alter subsection (d) to prescribe the responsibilities of persons the department has designated as locators of certificates of location. The proposed amendment would add new paragraphs (1) and (2) to address final approval by the department of an application for a CoL. Proposed new paragraph (1) would condition the final approval of an application for a CoL upon the submission by the applicant to the department of a map of the prospective location with respect to surrounding or nearby state-owned lands, the geographic coordinates of the location, and evidence to the department’s satisfaction that the applicant has acquired all applicable state and federal permits and authorizations. Proposed new paragraph (2) would stipulate a department site inspection and verification of the geographic coordinates of the location. The proposed amendment would alter current provisions by adding language where appropriate and necessary to indicate requirements applicable to either or both types of CoLs, eliminate the contents of current paragraph (4) that require an applicant to have a prospective location surveyed by a registered surveyor, which would be relocated to new paragraph (8) and made applicable only to requests for boundary alterations. The proposed amendment would add new paragraph (4) to require the submission of amendments to a placement plan to be submitted to the department for review and would prohibit activities under an amended placement plan to take place until the department has approved.  The provision is necessary to ensure that all activities under a CoL are consistent with the department’s duties and obligations under the Parks and Wildlife Code. Similarly, proposed new paragraph (5) would establish project milestones and require restoration locators to notify the department at specified intervals as to a project’s status. The proposed amendment would alter current paragraph (5) to specify that there are no rental fees for CoLs issued for restoration purposes, which the department has determined is appropriate because restoration activities provide a very high value in terms of ecosystem benefits.  Additionally, the proposed amendment to subsection (d) would alter current paragraph (6) to remove current subparagraph (A)(i), which is no longer necessary, and add new clause (ii) to provide for the department to consider any additional factors necessary to inform a department determination to approve or deny a renewal request for a CoL. The proposed amendment also would add new paragraph (8) to establish a process for the alteration of boundaries of a CoL, which would consist of the locator having the location resurveyed by a registered surveyor and the submission to the department of survey notes and a map showing latitude and longitude coordinates for all corner markers, and its location in relation to surrounding or nearby state land tract boundaries. The provision is necessary to ensure that all activities under a CoL are consistent with the department’s duties and obligations under the Parks and Wildlife Code.

        Additionally, the proposed amendment would alter current subsection (d)(7) to exempt CoLs for purposes of restoration, which is necessary for reasons addressed earlier in this preamble.

        Finally, the proposed amendment would make nonsubstantive grammatical changes to improve precision and clarity in current paragraph (8), concerning transfer or sale of CoLs and alter the title of the subsection to reflect applicability to both types of certificates of location issued by the department.

        The department has coordinated and will coordinate with the Department of State Health Services and the General Land Office in the promulgation of the rules as proposed, as required by Parks and Wildlife Code, §76.022(d).

2. Fiscal Note.

        Dakus Geeslin, Deputy Director, Coastal Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal additional fiscal implications to state or local governments as a result of administering or enforcing the rules as proposed. While the department currently administers a CoL program for purposes of harvest, the rules as proposed would allow for the use of CoLs for restoration purposes. This may result in increased use of the CoL program overall and in bay systems where CoLs have not been authorized prior to this rulemaking; however, the department intends to administer and enforce the rules using existing staff and resources.

3. Public Benefit/Cost Note.

        Mr. Geeslin also has determined that for each of the first five years that the rules as proposed are in effect:

                 (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the enhancement of oyster populations and the ecological benefits provided by oysters in public waters, including habitat provision, water filtration, erosion protection, and establishing a continual supply of oyster larvae to colonize oyster habitat within bay systems.

                 (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, and 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 because the proposed amendments would implement a statutory requirement for the commission to establish and administer a CoL program for restoration purposes and because the CoLs issued under the rules would be sited only on areas that no longer support commercial exploitation, the development of CoLs on these areas 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 rules 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 rules 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 rules.

                 (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 rules.

                 (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules 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 allowing for the use of CoLs for restoration purposes and modernizing the requirements of the CoL program in general);

                         (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 are in compliance with Natural Resources Code, §33.2051 (Agency Rulemaking Actions).

4. Request for Public Comment.

        Comments on the proposed rules may be submitted to Michaela Cowan, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8255; email: cfish@tpwd.texas.gov, or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendments are proposed under Parks and Wildlife Code, §76.018 and §76.022, which requires the commission to establish by rule a program to issue certificates of location for the restoration of natural oyster bed, including rules to establish fees, application approval requirements, lease terms, and renewal procedures for leases, the total area in each bay system for which leases may be issued, siting and marking requirements for leases, and

any other requirement necessary to administer the program; §76.033, which authorizes the department to make regulations to protect and conserve oysters on public reefs and beds; and §76.301, which authorizes the commission to regulate the taking, possession, purchase, and sale of oysters.

        The proposed amendment affects Parks and Wildlife Code, Chapter 76.

6. Rule Text.

        §58.11. Definitions. The following words and terms, when used in the subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) – (2) (No change.)

                 (3) Certificate of Location — A department-issued certificate authorizing a person or domestic corporation to plant cultch and/or oysters in a specifically delineated area of the public water of the state for the purpose of establishing a private oyster bed.

                 (4) – (6) (No change.)

                 (7) Cultch — Substrate of appropriate size and composition for larval oyster attachments, such as shell, rock, or other non-toxic department-approved material.

                 (8)[(7)] Department — The Texas Parks and Wildlife Department.

                 (9)[(8)] Director — The executive director of the department.

                 (10)[(9)] Harvester/Shell Recovery Tag — An identifying marker that must be affixed to the outside of each sack of oysters at the time of harvest, in the location of harvest, containing information required by the TDSHS under the NSSP, and remain affixed during transportation of the oysters to a dealer.

                 (11)[(10)] Location — The acreage of public water for which a certificate of location has been issued.

                 (12)[(11)] Location term — The 15-year term of a certificate of location.

                 (13)[(12)] Locator — A person or domestic corporation to whom or which a certificate of location has been issued. 

                 (14)[(13)] Natural oyster bed (reef) — As defined in Parks and Wildlife Code, §76.001, an area with a substrate that is predominantly composed of oyster shell or live oysters.[§76.051, a natural oyster bed is an area where at least five barrels of oysters are found within 2,500 square feet of any position on a reef or bed.]

                 (15)[(14)] Open season — A period during which it is lawful to take oysters.

                 (16)[(15)] Oyster — That species of molluscan shellfish identified as the Eastern oyster, Crassostrea virginica and its subspecies. No other species of molluscan shellfish are included within this proclamation.

                 (17)[(16)] Possess — The act of having in possession or control, keeping, detaining, restraining, or holding as owner, or as an agent, bailee, or custodian of another.

                 (18)[(17)] Prohibited area — The classification of a shellfish growing area determined by the TDSHS to be unacceptable for the transplanting, gathering for depuration, or harvesting of shellfish. The only shellfish removal permitted from a prohibited area is for the purpose of depletion, as defined in the Control of Harvesting Section of Part 1 of the NSSP.

                 (19)[(18)] Public oyster bed (reef) — As defined in Parks and Wildlife Code, §76.002, all natural oyster beds (reefs) are public. All oyster beds not designated as private are public.

                 (20)[(19)] Restricted area — The classification of a shellfish growing area determined by the TDSHS to be unacceptable for harvesting of shellfish for direct marketing, but which is acceptable for transplanting or gathering for depuration. A restricted area may be closed for transplanting or gathering for depuration when the TDSHS determines that the area does not meet the restricted area criteria established in the NSSP.

                 (21)[(20)] Sack of oysters — A volume of oysters, including dead oyster shell that weighs no more than 110 pounds including the sack.

                 (22)[(21)] Under location — An area subject to a certificate of location.

        §58.30. Certificate of Location.

                 (a) General Rules.

                         (1) No certificate of location will be issued for:

                                  (A) a natural oyster bed unless the department has determined that it is degraded, consistent with the provisions of Parks and Wildlife Code, §76.003(b)[as prescribed in Parks and Wildlife Code, §76.001];

                                  (B) [an area that has been fished as a public reef within eight years of an application of a certificate of location as prescribed in Parks and Wildlife Code, §76.003;]

                                  [(C)] a bay shore area within 100 yards of the shore as prescribed in Parks and Wildlife Code, §76.004;

                                  (C)[(D)] an area subject to an exclusive riparian right as provided under Parks and Wildlife Code, §76.004 and §76.005;

                                  (D)[(E)] an area already under location; or

                                  (E)[(F)] an area within 1,000 feet of a location not owned or controlled by the applicant unless the applicant secures written permission.

                         (2) The term of a certificate of location for purposes of harvest is 15 years, as prescribed in Parks and Wildlife Code, §76.018.

                         (3) The term of a certificate of location for purposes of restoration is 15 years.

                         (4)[(3)] In accordance with the Oyster Fishery Management Plan required by Parks and Wildlife Code, §76.301, the department may accept applications for certificates of location.

                         (5) No harvest of oysters is permitted from an area for which a certificate of location has been issued for restoration purposes.

                         (6) It is an offense for any person to move oysters from or cause oysters to be moved from an area for which a certificate of location has been issued except as provided by §58.40 of this title (relating to Oyster Transplant Permits) or §58.50 of this title (relating to Oyster Harvest Permits)

                         (7) A locator may conduct non-harvest activities after potentially damaging events, such as extreme weather events, on locations otherwise closed by DSHS, provided the locator has received prior authorization of the activity from the department in writing.

                 (b) Application for[For] Certificate of Location (Harvest or Restoration).

                         (1) An application for a certificate of location[If applications for certificates of location are being accepted by the department, they] shall be accompanied by a nonrefundable application fee of $200.

                         (2) The department shall designate specific times and dates during which applications will be accepted and shall make such information publicly available.[ The applicant shall mark the proposed location site or sites with temporary poles and/or buoys in such a manner that the outline of the site or sites can be clearly determined.]

                         (3) Prior to the submission of an application, the applicant shall consult with an authorized employee(s) of the department to enable the department to determine necessary survey requirements and evaluate the prospective location with respect to:

                                  (A) natural oyster reefs;

                                  (B) shoreline;

                                  (C) areas restricted or prohibited by TDSHS;

                                  (D) spoil disposal areas;

                                  (E) other areas subject to a certificate of location;

                                  (F) riparian rights;

                                  (G) presence of exposed shell;

                                  (H) presence of live oysters;

                                  (I)  sediment overburden; and

                                  (J) other habitats.

                         (4) An application must specify the purpose of the prospective certificate of location (for harvest or restoration purposes).

                          (5)[(3)] An[Each] application shall consist of, at a minimum[contain]:

                                  (A) the  applicant’s name and address;

                                  (B) signed affirmation that the applicant is a United States citizen or a domestic corporation[as prescribed in Parks and Wildlife Code, §76.006];

                                  (C) a description of the acreage for which the[to be authorized by the] certificate of location is sought, including:

                                          (i) a map[plat] showing approximate size and location in relation to state land tracts;

                                          (ii) the corner coordinates of the proposed site; and

                                  (D) a cultch placement plan for the site, including reasonable estimates of:

                                          (i) the nature or composition of materials to be used;

                                          (ii) the quantity of materials to be used; and

                                          (iii) the time of placement or deployment.

[(D) signed letters each from the U.S. Army Corps of Engineers, General Land Office, and TDSHS indicating approval for the proposed location site.]

                         [(4) An authorized employee(s) of the department shall inspect the proposed location site or sites to determine its location with respect to:]

                                  [(A) natural oyster reefs;]

                                  [(B) shoreline;]

                                  [(C) areas restricted or prohibited by the TSDHS;]

                                  [(D) spoil disposal areas;]

                                  [(E) other areas subject to a certificate of location;]

                                  [(F) riparian rights;]

                                  [(G) presence of exposed shell; and]

                                  [(H) presence of live oysters.]

(6) The department shall approve or disapprove an application based on the totality of factors involved, including the suitability of the location with respect to the purpose and size of the area.

                 (c) Public Hearing on Application.

                         (1) If the department determines that[After having determined] the proposed location site meets all siting[ location and exposed shell] requirements of this subchapter and Parks and Wildlife Code, Chapter 76, the department shall:

                                  (A) hold a public hearing to provide opportunity for public comment[determine if the site has been publicly fished within eight years of the application for a certificate of location];

                                  (B) publish a notification of the date, time, and purpose of the public hearing on the department website and any other outlet deemed appropriate[at least once in a newspaper of general circulation in the county closest to the proposed location];

                                  (C) publish the notification between ten and 20 days prior to the public hearing; and

                                  (D) make information about the proposed certificate of location available to the public at[information about the proposed application  for a certificate of location ten days prior to the date of] the hearing. [; and]

                                  [(E) present the investigation report at the public hearing.]

                         (2) The department will consider all public comment relevant to the application.[Persons objecting to the proposed certificate of location must submit a sworn affidavit or testify under oath at the public hearing stating reasons for the objection].

                         (3) The department shall review findings of the public hearing and submit recommendations to the Coastal Fisheries Division Director for approval.

                         (4) The applicant will be notified within 14 [ten]days after the hearing of either approval or denial of the application for a certificate of location.

                         [(5) The application approved by the department will be forwarded to the Coastal Coordination Council for final approval.]

                 (d) Responsibilities of Approved Locator.[Approved Procedures for Applicant.]

                         (1) The department will not make a final decision to approve an application for a certificate of location until:

                                  (A) the applicant has provided the department with:

                                          (i) a map of the location showing the relation of the location with respect to surrounding or nearby state land tract boundaries;

                                          (ii) the latitude and longitude coordinates of the location; and

                                          (iii) evidence to satisfy the department that all applicable permits and authorizations required by other state and federal governmental entities have been secured; and

                                 (B) the department has inspected the location and verified the latitude and longitude coordinates required under subparagraph (A) of this paragraph.

                         [(1) Applicant shall be responsible for having a final survey of the approved location conducted by a registered surveyor who will furnish the department with survey notes and a plat showing;]

                                  [(A) the location in relation to state land tract boundaries; and]

                                  [(B) latitude and longitude coordinates for all location corner markers.]

                         (3)[(2)]Prior to any placement of cultch or other materials, the locator shall [The applicant shall ]mark the boundaries of the location with buoys or other permanent markers in accordance with United States Coast Guard regulations[at the time of the final survey] and maintain buoys or other permanent markers for the duration of the period of validity [until termination] of the certificate [of location]. Supplemental markers may be required along the boundaries if one corner marker is not clearly visible from another corner marker.

                                  (A) – (B) (No change.)

                                  (C) When[If]replacement of buoys or other permanent markers is necessary, original latitude and longitude coordinates of the final survey must be used to relocate markers.

                         (4) A locator shall submit proposed amendments to a placement plan to the department for review. The department must approve amendments to a placement plan prior to any activities under a prospective amendment.[The department shall return approved application for appropriate registration by applicant with the county clerk in the county of location.]

                         (5) In the event that unavoidable or unforeseeable developments or extenuating circumstances make the attainment of the benchmarks in this paragraph impractical or impossible, the department may, on a case-by-case basis, waive, defer, or amend a benchmark. Beginning on the date of issuance of certificate of location for purposes of restoration, the locator shall submit documentation of project progress to the department as follows:

                                  (A) placement initiated — within the first 24 months;

                                  (B) 50% of the plan completed — within five years;

                                  (C) 60% of the plan completed — within 10 years; and

                                  (D) 80% of the plan completed — by time of renewal.

                         (6)[(5)] Rental Fee.

                                  (A) The holder of a certificate of location for harvest shall pay to the department ($20) per acre of location per year. The fee established by this subparagraph shall be recalculated at three-year intervals beginning on the effective date of this section and proportionally adjusted to any change in the Consumer Price Index, the department’s cost-recovery needs, or both.

                                  (B) Rental fees for certificates of location for harvest are due annually by March 1 as prescribed in Parks and Wildlife Code, §76.017.

                                  (C) The holder of a certificate of location shall pay the department a late penalty fee equal to 10 percent of the amount due for any rental, transfer, sale, or renewal fee that is not paid when due as prescribed in Parks and Wildlife Code, §76.017.

                                  (D) (No change.)

                                  (E) There is no rental fee for certificates of location for restoration.

                         (7)[(6)] Renewal of Certificate of Location.

                                  (A) As prescribed in Parks and Wildlife Code, §76.018, at the end of the term of a certificate of [a] location for harvest [term] the department shall determine the need for continuation of the certificate of location based on:

                                          (i) [the need for depuration of oysters from non-approved areas; and]

                                          [(ii) other] considerations as specified in §58.12 of this title (relating to Oyster Fishery Management Plan); and

                                          (ii) any other consideration the department deems significant enough to warrant continuation.

                                  (B) If the certificate of location for harvest is to be renewed under the conditions of the department as prescribed in Parks and Wildlife Code, §76.018, the holder of the certificate of location shall be offered the first right of refusal for renewal as prescribed in Parks and Wildlife Code, §76.018.

                                  (C) Certificates of location for restoration will be renewed at the request of the locator.   

                                  [(C) If there is any alteration to the boundaries of a location, the holder of a certificate of location shall be responsible for having the location resurveyed by a registered surveyor who will provide the department with survey notes and a plat of the location showing:]

                                          [(i) the location in relation to state land tract boundaries; and]

                                          [(ii) latitude and longitude coordinates for all corner markers.]

                                  [(D) The survey will be conducted and provided to the department within one year of renewal of the certificate of location;]

                         (8) Alteration of Boundaries

                                  (A) The department must approve all boundary alterations prior to any alteration of boundaries of a certificate of location.

                                  (B) If there is any alteration to the boundaries of a location, the locator shall be responsible for having the location resurveyed and providing the department with survey notes and a map of the location showing:

                                          (i) the location in relation to state land tract boundaries; and

                                          (ii) latitude and longitude coordinates for all corner markers.

                                  (C) The department will not approve any alteration of the boundaries of a certificate of location until the survey required by this paragraph has been conducted and provided to the department.

                         (9)[(7)]Auction Procedures.

                                  (A) A certificate of location for harvest may be auctioned by the [The] department if it[may auction a location that] is not renewed as prescribed by this subchapter and Parks and Wildlife Code, §76.018.

                                  (B) Auction procedures do not apply to certificates of location for restoration; if certificates of location for restoration are not renewed, the location automatically reverts to the public domain.

                                  (C)[(B)]The department may determine a minimum acceptable bid based on:

                                          (i) – (iii) (No change.)

                                  (D)[(C)] The department may refuse all bids below the minimum acceptable bid.

                                  (E)[(D)] The department must follow prescribed bid guidelines for state agencies.

                         (10)[(8)]Transfers or Sale[ as prescribed in Parks and Wildlife Code, §76.019].

                                  (A) A transfer or sale of a certificate of location does not change location terms.

                                  (B) A payment of $200 will be due upon transfer or sale of a certificate of  location.

                                  (C) A transfer fee will not be required when a certificate of location is inherited.

                                  (D) A completed transfer form prescribed by the department is[will be]required at time of transfer.

        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