Commission Meeting Agenda Item No. 4
Presenter: Robin Riechers
Action
Statewide Oyster Fishery Proclamation
Closure of Oyster Reef Areas
Recommended Adoption of Proposed Changes
March 24, 2022
I. Executive Summary: Texas Parks and Wildlife Department (TPWD) staff is seeking 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.
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 76.301b, 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.
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.
At the Commission Work Session meeting on January 26, 2022, the staff was authorized to publish the proposed rule in the Texas Register for public comment. The proposed rules appeared in the February 18, 2022, issue of the Texas Register(47 TexReg 734). A summary of public comment on the proposed rules will be presented at the time of the hearing.
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 February 18, 2022, issue of the Texas Register (47 TexReg 734).”
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.
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.
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 effort for oysters in the Carlos-Mesquite-Ayres complex, which generated concerns with respect to the long-term impacts to habitat within the complex. To date, the total number of reported commercial vessels reporting harvest from Mesquite Bay (shellfish harvest is reported to the department by harvest area rather than bay system or individual reef system; Mesquite Bay is area TX-28) during the 2021-2022 commercial oyster season is the highest on record (126 unique vessels compared to an average of 51 unique vessels from license year 2015-2021). The department has determined that in terms of ecological importance and risk of habitat loss, the harvest impacts on 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. 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 provide 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). Until recently, sedimentation in Cedar Bayou had made it inaccessible; however, it has been re-opened, allowing activities that affect seagrasses, wetlands, and oyster reefs that serve as critical nursery habitats for young fish and invertebrates recruiting to the estuary (including both red frum and blue crab) to occur via Cedar Bayou pass (Hall et al. 2016). The protection and continued availability of this habitat may increase their growth, survival, and subsequent recruitment to the fishery for these organisms (Byer et al. 2017; Longmire et al. 2021).
The Carlos-Mesquite-Ayers complex was the site of similar increased harvest pressure in 2016-2017 following the closure of the six minor bays to oyster harvest 2017 mentioned earlier in this preamble, in terms of both the number of commercial oyster boats fishing in this area and oyster landings (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 in recent years. Through November 2021 of the 2021-2022 commercial oyster season, the number of reported commercial vessel trips in Mesquite Bay (784 vessel trips) and the total commercial harvest (21,163 sacks) are the second highest on record, with several months remaining in the season. While landings on many of the reefs in Carlos Bay and Ayres Bay cannot be independently assessed because those data are collected within large harvest areas (in this case, TX- 29 and TX-25, respectively), anecdotal observations reported by the public and department staff indicate increases in 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 currently have long-term monitoring data on physical habitat structure, live oyster abundance can often 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 abundance that is below the 25th percentile of average oyster abundance for the entire bay system, indicating that they may have become structurally degraded and thus a priority for restoration.
Over the past year, oyster reefs in the coastal bend have been negatively impacted by decreased recruitment and oyster mortality and the resultant impacts of commercial oyster fishing pressure that has been redirected to 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 spawnings are 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 Copano Bay dropped below the 10‰ threshold beginning in June 2021, and its monthly average has ranged from 2.7‰ to 7.5‰ from June 2021 to December 2021. Sustained low salinity has resulted in very low recruitment and total oyster mortality in excess of 50% in Copano Bay. Given that Copano Bay typically supported the commercial fishing effort in this area of the coast, much of the commercial fleet has redistributed its effort to higher-salinity portions of the bay during the 2021-2022 commercial oyster season — -primarily the Carlos-Mesquite-Ayers complex. While observed salinities in this area were not as low as those observed in Copano Bay, they were still sub-optimal (i.e., <16‰ from July 2021-November 2021), which will likely impact the ability of the complex to recover from the effects of increased harvest pressure. The significant ecological value and sensitivity of the Carlos-Mesquite-Ayers 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 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), and includes all waters in Mesquite Bay. The proposed amendment would affect 2,129 acres of oyster habitat (approximately 2.8% of coastwide oyster habitat) and prohibit harvest on 54.9% of the oyster reefs in lower Aransas Bay (TX-29), 100% of the reefs in Mesquite Bay (TX-28), and 41.3% of the oyster reefs in lower San Antonio Bay (TX -25).
3. 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.
4. 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; and the protection of a reef complex to preserve a continuing 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.
To ensure that this analysis captures every small or micro-business affected by the proposed rules, the department assumes that most, if not all businesses affected by the proposed rules qualify as small or micro-businesses.
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-Ayers 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 Ayers 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.
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 $2,884,905 ex-vessel value for 179 oyster vessels. The department 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 Ayers Bay portion of the proposed closure area) experienced a three-year average commercial oyster harvest of 110,839 sacks (14.9% of coastwide landings), which equates to a three-year average of $3,963,547 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 139,847 sacks, which equates to $5,450,131 ex-vessel value for 336 oyster vessels. The department 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 Ayers Bay closure area, the three-year (license years 2019-2021) average landings, ex-vessel value, and number of oyster boats associated with the Ayers Bay portion of the proposed closure area would be 45,777 sacks (6.1% of coastwide landings) with an ex-vessel value of $1,636,945 (6.1% of coastwide ex-vessel value) for 112 vessels.
The department estimates that in total the proposed closure of the Carlos-Mesquite-Ayers complex (adjusted proportionally to account for oyster reef) would result in total landings, ex-vessel value, and oyster boats reporting landings of 70,463 sacks (9.6% of coastwide landings) with an ex-vessel value of $2,550,266 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 $11,973 per vessel ($2,550,266 ex-vessel value / 213 reporting vessels).
There will be no adverse economic impacts to rural communities.
The department considered several alternatives to achieve the goals of the proposed rule while reducing adverse economic impacts to small and micro-businesses.
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-Ayers complex is unsustainable and to allow harvest to continue at the current rate would be to fail to fulfill the departments statutory and regulatory responsibility to protect oyster resources, and by extension, other biologically interconnected systems and fisheries resources in this 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 it would likely result in each licensee being allocated a harvest quota that would not justify the effort, and in any case, would be difficult for the department to develop and monitor without additional resources.
(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 the proposed rules are in compliance with Government Code §505.11 (Actions and Rule Amendments 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 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)(vi) — (viii) and (B) cease effect on November 1, 2023.
(A) – (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