Commission Meeting Agenda Item No. 4
Presenter: Emma Clarkson
Action
Statewide Oyster Fishery Proclamation
Temporary Closure of Oyster Restoration Areas in Galveston Bay
Recommended Adoption of Proposed Changes
November 2, 2023
I. Executive Summary: Staff seeks adoption of a proposed amendment to the Statewide Oyster Fishery Proclamation. The proposed amendment would temporarily close 64.4 acres across two restoration sites in Galveston Bay for two harvest seasons in order to conduct oyster habitat restoration activities and allow oysters to repopulate these areas and reach market size.
II. Discussion: Under Texas Parks and Wildlife Code section 76.301, the Texas Parks and Wildlife Commission (Commission) is authorized to regulate the taking, possession, purchase, and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters. Additionally, Texas Parks and Wildlife Code section 76.115 authorizes the Commission to close an area to the taking of oysters when it finds that the area is being overworked or damaged, or the area is to be reseeded or restocked.
Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (like Hurricane Ike in September 2008 and Hurricane Harvey in August 2017), as well as high harvest pressure. To date, Texas Parks and Wildlife Department’s oyster habitat restoration efforts have resulted in a total of approximately 1,709 acres of oyster habitat returned to productive habitat within this bay. The proposed closures are expected to result in the restoration of approximately 30 acres of productive oyster habitat.
At the Commission Work Session meeting on August 23, 2023, staff was authorized to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the September 29, 2023, issue of the Texas Register (48 TexReg 5624). A summary of public comment on the proposed rules will be presented at the time of the meeting.
III. Recommendation: Staff recommends that the Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts an amendment to 31 Texas Administrative Code §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, as listed in Exhibit A, with changes as necessary to the proposed text as published in the September 29, 2023, issue of the Texas Register (48 TexReg 5624).”
Attachment – 1
Commission Agenda Item No. 4
Exhibit A
STATEWIDE OYSTER FISHERY PROCLAMATION
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.
The proposed amendment would temporarily prohibit the harvest of oysters for two years within the boundaries of restoration areas on two reefs: one site in Conditionally Approved Area TX-7 in Galveston Bay (East Redfish Reef, approximately 42.6 acres), and one site in Conditionally Approved Area TX-6 in Galveston Bay (North Dollar Reef, 21.8 acres). The proposed amendment would temporarily close a total of 64.4 acres of oyster reef for two years. The Texas Department of State Health Services (DSHS) regulates shellfish sanitation and designates specific areas where oysters may be harvested for human consumption. The designation of "Conditionally Approved" or "Approved" is determined by DSHS.
The temporary closures will allow for 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 1,709 acres of oyster habitat returned to productive habitat within these bays.
Over $3.4 million from the Coronavirus Aid, Relief, and Economic Security (CARES) Act, administered through the Gulf States Marine Fisheries Commission (GSMFC), was awarded to TPWD to restore oyster habitat to offset impacts to commercial oyster fisheries from decreased landings, workforce, and demand for oysters resulting from COVID-19. Funding was also generated as a result of the passage of House Bill 51 (85th Legislature, 2017), which included a requirement that certified oyster dealers re-deposit department-approved cultch materials in an amount equal to thirty percent of the total volume of oysters purchased in the previous license year. Additionally, Shell Oil and Gas has donated $50,000 to the Galveston Bay oyster restoration project. These funds will be used to restore approximately 21 acres on East Redfish Reef and nine acres on North Dollar Reef. Oyster abundance on these reefs has severely declined over time, and the portion of the reefs selected for restoration is characterized by degraded substrates. These sites were selected in collaboration with the commercial oyster industry, which provided input on site prioritization through a series of workshops. Commercial oyster industry representatives also accompanied TPWD on site surveys to determine the suitability of the substrate for restoration. The restoration activities will focus on establishing stable substrate and providing suitable conditions for spat settlement and oyster bed development.
2. Fiscal Note.
Dakus Geeslin, Deputy Director, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.
3. Public Benefit/Cost Note.
Mr. Geeslin also has determined that for each of the first five years that the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state; the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens; the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices; the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach legal size and subsequent recreational and commercial harvest; and providing protection from harvest to a reef complex thus establishing a continual supply of oyster larvae to colonize oyster habitat within the bay system.
(B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that because the areas designated for closure have been degraded to the extent that they no longer support any commercial exploitation, the closures effected by the proposed rules will not result in direct adverse economic impacts to any small business, microbusiness, or rural community. The department does note, however, that numerous areas previously closed (South Redfish Reef, Texas City 1, 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 the proposed rule is 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 Hanna Bauer, 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 https://tpwd.texas.gov/.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.
The proposed amendment affects Parks and Wildlife Code, Chapter 76.
6. Rule Text.
§58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.
(a) — (b) (No change.)
(c) Area Closures.
(1) (No change.)
(2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A)(i)-(ii) cease effect on November 1, 2025. The provisions of subparagraph (A)(iii) and (B) of this paragraph cease on November 1, 2024.[The provisions of subparagraphs (A)(i)-(vi) and (B) of this paragraph cease effect on November 1, 2023. The provisions of subparagraph (A) (vii) and (B) cease on November 1, 2024.]
(A) Galveston Bay.
(i) East Redfish Reef. The area within the boundaries of a line beginning at 29o 30’ 10.95”N, 94o 49’ 29.21”W (29.503043, -94.824781, corner marker buoy A); thence to 29o 30’ 16.31”N, 94o 49’ 15.68”W (29.50453, -94.821024, corner marker buoy B); thence to 29o 30’ 03.79”N, 94o 49’ 08.97”W (29.501053, -94.819161, corner marker buoy C); thence to 29o 29’ 58.12” N, 94o 49’ 22.24” W (29.49948, -94.822844, corner marker buoy D); thence back to corner marker buoy A.
(ii) North Dollar Reef. The area within the boundaries of a line beginning at 29o 27’ 36.09” N, 94o 54’ 24.97”W (29.460025, -94.873606, corner marker buoy A); thence to 29o 27’ 43.72” N, 94o 52’ 09.05”W (29.462146, -94.86918, corner marker buoy B); thence to 29o 27’ 38.66”N, 94o 52’ 05.80”W (29.460738, -94.868278, corner marker buoy C); thence to 29o 27’ 30.93”N, 94o 52’ 21.71” W (29.458593, -94.872699, corner marker buoy D); and thence back to corner marker buoy A.
[(i) 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.]
[(ii) 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.]
[(iii) 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.]
[(iv) Dollar Reef. The area within the boundaries of a line beginning at 29° 27’ 30.44"N, 94° 52’ 03.23"W (29.458456°N, -94.867565°W, corner marker buoy A); thence, to 29° 27’ 32.83"N, 94° 51’ 59.91"W (29.459121°N, -94.866643°W, corner marker buoy B); thence, to 29° 27’ 29.13"N, 94° 51’ 52.67"W (29.458094°N, -94.864632°W, corner marker buoy C); thence, to 29° 27’ 15.67"N, 94° 51’ 53.44"W (29.454535°N, -94.864846°W, corner marker buoy D); thence, to 29° 27’ 04.04"N, 94° 52’ 08.47"W (29.451124°N, -94.869021°W, corner marker buoy E) ; and thence back to corner marker buoy A.]
[(v) North Todd’s Dump Reef. The area within the boundaries of a line beginning at 29° 30’ 33.76"N, 94° 53’ 17.07"W (29.509379°N, -94.888077°W, corner marker buoy A); thence, to 29° 30’ 27.89"N, 94° 53’ 44.39"W (29.507749°N, -94.895666°W, corner marker buoy B); thence, to 29° 30’ 17.10"N, 94° 53’ 41.73"W (29.504752°N, -94.894926°W, corner marker buoy C); thence, to 29° 30’ 23.60"N, 94° 53’ 12.46"W (29.506556°N, -94.886797°W, corner marker buoy D); and thence back to corner marker buoy A.]
[(vi) Pepper Grove Reef — Middle Site. The area within the boundaries of a line beginning at 29° 29’ 15.83"N, 94° 40’ 01.01"W (29.487733°N, -94.666948°W, corner marker buoy A); thence, to 29° 29’ 15.93"N, 94° 39’ 52.30"W (29.487760°N, -94.66453°W, corner marker buoy B); thence, to 29° 29’ 14.81"N, 94° 39’ 52.28"W (29.487450°N, -94.664525°W, corner marker buoy C); thence, to 29° 29’ 14.71"N, 94° 40’ 00.99"W (29.487422°N, -94.666944°W, corner marker buoy D) ; and thence back to corner marker buoy A.]
(iii)[(vii)] Dollar Reef HSE Mitigation Site. The area within the boundaries of a line beginning at 29° 27’ 22.92"N, 94° 53’ 46.44"W (29.456367°N, -94.896233°W, corner marker buoy A); thence to, 29° 27’ 13.62"N, 94° 53’ 23.80"W (29.453784°N, -94.889944°W, corner marker buoy B); thence to, 29° 26’ 51.77"N, 94° 53’ 40.51"W (29.447713°N, -94.894587°W, corner marker buoy C); thence to, 29° 27’ 18.96"N, 94° 53’ 49.96"W (29.455265°N, -94.897211°W, corner marker buoy D); and thence back to corner marker buoy A.
[(B) Matagorda Bay System — Keller Bay Reefs. The area within the boundaries of a line beginning at 28° 36’ 16.7"N, 96° 28’ 29.042"W (28.604656°N, -96.474734°W, corner marker buoy A); thence, from 28° 26’ 16.7"N, 96° 28’ 40.933"W (28.604659°N, -96.478037°W, corner marker buoy B); thence, from 28° 36’ 5.31"N, 96° 28’ 48.95"W (28.601476°N, -96.480265°W, corner marker buoy C); thence, from 28° 35’ 56.2"N, 96° 28’, 39.94"W (28.598953°N, -96.477761°W, corner marker buoy D); thence, from 28° 35’ 55.9"N, 96° 28’ 21.9"W (28.598886°N, -96.47275°W, corner marker buoy E); and thence back to corner marker buoy A.]
(B)[(C)]Espiritu Santo Bay- Josephine’s Reef. The area within the boundaries of a line beginning at 28° 18’ 42.6"N, 96° 35’ 48.9"W (28.311833°N, -96.596916°W; corner marker buoy A); thence, to 28° 18’ 34.7"N, 96° 35’ 42.0"W (28.309651°N, -96.594988°W; corner marker buoy B); thence to 28° 18’ 22.1"N, 96° 36’ 00.3"W (28.306142°N, -96.600075°W; corner marker buoy C); thence to 28° 18’ 30.0"N, 96° 36’ 07.2"W (28.308324°N, -96.602004°W; corner marker buoy D); and thence back to corner marker buoy A.
(C)[(D)] Christmas Bay, Brazoria County.
(D)[(E)] Carancahua Bay, Calhoun and Matagorda County.
(E)[(F)] Powderhorn Lake, Calhoun County.
(F)[(G)] Hynes Bay, Refugio County.
(G)[(H)] St. Charles Bay, Aransas County.
(H)[(I)] South Bay, Cameron County.
(I)[(J)] Mesquite Bay, Aransas and Calhoun counties.
(J)[(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"N, 96° 55’ 32.52"W (28.11450°N, -96.92570°W) and ending at 28° 06’ 38.19"N, 96° 53’ 17.41"W (28.11061°N, -96.88817°W).
(K)[(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"N, 96° 48’ 44.53"W (28.21394°N, -96.81237°W) and ending at 28° 11’ 17.05"N, 96° 47’ 32.38"W (28.18807°N, -96.79233°W).
(L)[(M)] 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