TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 58. OYSTERS, SHRIMP, AND FINFISH

SUBCHAPTER A. STATEWIDE OYSTER FISHERY PROCLAMATION

31 TAC §58.21, §58.22

The Texas Parks and Wildlife Commission in duly noticed meeting on August 24, 2017, adopted amendments to §58.21 and §58.22, concerning the Statewide Oyster Fishery Proclamation, with changes to the proposed text as published in the July 21, 2017, issue of the Texas Register (47 TexReg 3613)).

The change to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, eliminates Jackson County from the description of Carancahua Bay in subsection (c)(2)(D), removes Keller Bay from the list of minor bay systems proposed for closure to take of oysters, and clarifies the nature of the 300-foot limit from shorelines within which it is unlawful to take oysters (by stipulating that the 300-foot limit begins at the water’s edge and includes all exposed oysters within that zone during low tide). Upon further review, the department determined that Keller Bay, although a smaller bay, is unlike the other minor bay systems proposed for closure, primarily because it is deeper, contains no seagrass beds, and is not bordered by fringing marshlands, all of which make it less likely that oyster populations there will benefit from the proposed management measures. The change to the language establishing the 300-foot limit within which oyster harvest is prohibited is necessary because the department is persuaded the proposed language, although technically and legally appropriate, was problematic from the perspective of compliance and enforcement. By creating an initial measuring point that is easy to understand (the water’s edge), the department believes it will be easier for the public to comply, which should curb if not eliminate unintentional violations. The department also considered that in some tidal flats it might be possible for oysters to be exposed within the 300-foot limit during low tide; therefore, since the intent of the rulemaking is to eliminate the harvest of oysters in these areas, the provision has been altered to include any exposed oysters within the 300-foot zone during low tide. Finally, the rule as proposed indicated that Carancahua Bay is contiguous with Jackson County. It is not.

The change to §58.22, concerning Commercial Fishing, eliminates the proposed Monday closure to legal oyster fishing and replaces it with a Saturday closure, and imposes a 30-sack daily bag limit to replace the previous 40-sack daily bag limit (the proposed daily sack limit was 25). The department received compelling public comment to the effect that the preference of the regulated community is for a Saturday closure rather than a Monday closure. The department considers that since the intent of the proposed amendment was to close an additional day per week to oyster harvest in order distribute fishing effort more evenly across the entirety of the open season, it is irrelevant which day is selected. With respect to the sack limit reduction, the proposed sack limit of 25 sacks per day was intended to optimize the recovery of oyster resources; however, a 30-sack daily limit is believed to be able to achieve the same goals over a longer time period.

The amendments generally are intended to protect, conserve, and enhance the oyster resources of the state by extending harvest opportunities later into the season; reducing the frequency and duration of in-season closures by reducing the daily sack limit and reducing the number of legal fishing days per week; lowering the limit for undersize oysters that may be possessed; and closing oyster harvest in six minor bays and within 300 feet of shorelines in areas designated by the Texas Department of State Health Services as Approved or Conditionally Approved for the harvest of oysters.

The effects of several natural disaster events occurring along the coast of Texas over the last several years, beginning with Hurricane Ike in 2008 and culminating with major flooding events in 2015-2016, together with high harvest pressure, have exacted a biological and economic toll on Texas’ oyster resources and associated industries. The cumulative impacts of these events have contributed to declining trends in oyster resources, and consequently, in commercial landings. Commercial landings in 2015 declined to levels not seen since the early 1980’s.

Hurricane Ike’s passage over Galveston Bay in 2008 impacted the Galveston Bay ecosystem and was especially destructive to the bay’s extensive oyster habitat. Over 8,000 acres, representing approximately half of the bay’s reefs, were damaged or destroyed due to sedimentation from the storm surge.

Between 2010 and early 2015 Texas experienced the second-worst drought in state history, surpassed only by the drought of the 1950’s. The worst one-year drought record in Texas’ history was 2011 and was recorded as a 500-year drought of record. Salinities in coastal bay systems rose to levels not previously observed. In Galveston Bay, salinities reached 42 parts per thousand, the highest level recorded in forty years of department monitoring. Though high salinities are not necessarily detrimental to oysters, they do seem to allow for greater predation and disease. These predators and diseases would normally not be as prevalent in lower salinities. The Hays rocksnail ("oyster drill"), Stramonita haemastoma canaliculata, is the most destructive predator of eastern oysters in the Gulf of Mexico (White and Wilson 1996) but is limited by intolerance to low salinity (Chapman 1959, Hofstetter 1977). Reports of predation rates of 80% on young oysters have been reported (May and Bland 1970; Hofstetter 1977; Chapman 1959).

At the height of the 2010-2015 drought, commercial oyster fishermen reported increased catches of oyster drill on beds in Galveston Bay that rarely produced this predatory snail in the past. Fishery-independent sampling by the department also documented increased catches of oyster drill in oyster dredge samples and in locations in the bay system where they had not been previously documented.

Oyster resources were further impacted by flood events in 2015 and 2016. Analysis of climate data has shown that dipole events (an abrupt year-to-year transition from drought to flood), are a frequent occurrence in the Southern Great Plains (Texas and Oklahoma) (Christian et al. 2015). As one of the worst droughts in Texas history came to an end in early 2015 it was followed by significant rainfall events that resulted in some of the worst flooding in the state’s history. Flooding began in April 2015 and continued through May, reaching official disaster status with the declaration of six State Disaster Proclamations (five of which were elevated to Federal Flooding Disasters in eleven coastal counties designated by the National Oceanographic and Atmospheric Administration (NOAA) (http://www.census.gov/geo/landview/lv6help/coastal_cty.pdf)). Flooding was further exacerbated with the onset of Tropical Storm Bill (June 16, 2015), which significantly impacted Matagorda and San Antonio bays. Disaster-level flooding occurred again in the fall of 2015 and spring of 2016.

Trinity River inflows to Galveston Bay in 2015 were recorded at levels 154% above the long-term mean river inflow (1941-2015) and by May 2016, inflows from the Trinity River had already exceeded the long-term yearly inflow rates by 66%. Similar trends were recorded for Matagorda Bay (126% above long-term yearly inflow rates), Aransas Bay (89% above) and San Antonio Bay (65% above). These inflow rates had specific consequences for all stages of the oyster life cycle. Oysters are an immotile (incapable of voluntary relocation) species that settle out of the water column within approximately two weeks of spawning. Survival at settlement is directly related to two primary characteristics: the availability of elevated, hard substrate for attachment and salinities conducive to survival. Oyster reefs occur where these two characteristics are most abundant; thus, reefs are continually settled by new oysters and the reef grows. During flooding events, oyster abundance and filtration rates decline precipitously (Beseres Pollack, et. al., 2011).

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). 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.

In 2015-16, the traditionally highest oyster producing bays (Copano and Galveston) had 14 and 15 continuous months, respectively, of suboptimal salinities for spat settlement. All major bays had suboptimal spat settlement conditions during the spring 2015 spawning season with suboptimal conditions persisting in Galveston and Copano bays through the fall spat settlement season as well (unpublished department data). Additionally, when salinities drop below 10% "limited or no recruitment" occurs (La Peyre et al., 2013). Based on the average monthly salinities reported for Galveston Bay for April through July 2015, limited recruitment is believed to have occurred. Similarly, monthly mean salinities for 2016 suggest sub-optimal salinities for recruitment between March and May, which appears to have resulted in the loss of a second recruitment cohort (age class). Copano Bay experienced similar low salinity levels (<10%) between May and August 2015, which may have resulted in limited recruitment, and from April 2015 through May 2016 experienced salinity levels below the optimal level for spat settlement. Similar sub-optimal conditions were observed in Matagorda, San Antonio, and Aransas bays.

Mechanically, flood inflows are also capable of sweeping any oyster larvae out of the bays and into non-optimal habitats, resulting in direct losses of larvae (Wang et. al., 2008). This is particularly devastating for Texas bays as the historically high volume and continual inflow events may have also led to minimal recruitment to the reefs. These sub-optimal salinity conditions and long-term high volume events have the potential to create long-term adverse consequences for Texas oyster resources.

A strong temperature-salinity linkage may negatively impact oyster recruitment, survival and growth. As salinities fall below 5% during summer months and water temperatures increase above 25°C, oyster conditions degrade. From May 2015 through mid-October water temperatures exceeded 25°C while salinities fell below 5% for Galveston, San Antonio and Copano Bays. Average salinities in Matagorda and Aransas Bays were 6.3 and 8.7%, respectively, which suggests localized areas of degradation.

Each of these environmental events, taken singularly, would not necessarily be expected to result in significant losses of oyster resources and associated negative commercial impacts; however, the cumulative impacts over such a relatively short timeframe most certainly contributed to reduced oyster abundance and the commercial declines observed following the flooding events in 2015 and 2016. Landings (pounds of meat) and ex-vessel values (dockside value) for oysters during 2015 were 1,585,432 pounds and $8,246,302, respectively. These values reflect a 69.1% and 51.1% reduction in landings and ex-vessel value, respectively, from the previous 10-year average.

To address this situation, the amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, would lower the tolerance allowed for the quantity of undersize oysters in a cargo from 15% to 5%, which is the statutory minimum (Parks and Wildlife Code, §76.112(b)).

As oyster resources have been reduced due to environmental impacts and overharvest, the illegal harvest of undersize oysters has increased. Citations for possession of undersize oysters increased 149% during the 2016-17 oyster season, compared to the previous year. In February, 2017, thirty-seven citations were issued in three major bay systems for unlawful possession of undersize oysters. In these cases, 68% of the cargos were found to be composed of more than 30% undersize oysters and 20% of the cases had cargos composed of more than 50% undersize oysters. Continued harvest of undersize oysters can result in further negative economic impacts to the oyster industry because areas closed by the department under the authority of Parks and Wildlife Code, §76.115, must remain closed longer to allow small oysters to grow to legal size. Additionally, the removal of small oysters further delays the recovery of the resource as these oysters are sexually mature and would contribute to recruitment if left on the reefs until they reach legal size.

The amendment to §58.21 also closes six minor bays to all oyster harvest (recreational and commercial) and within a 300-foot buffer zone along shorelines located in areas designated by the Department of State Health Services (DSHS) as Approved or Conditionally Approved for oyster harvest (to include all exposed oysters on the landward side of the 300-foot zone). The minor bays proposed for closure are unique in that they are relatively shallow systems containing intertidal and shallow-water oyster habitat. 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). Research has demonstrated that densities of macrofaunal organisms and species diversity are higher within oyster habitat compared to seagrass beds or marsh-edge interfaces (Gain et al. 2017). Further, nekton (aquatic animals that are able to swim and move independently of water currents) and benthic crustaceans (crustaceans at the lowest depth) densities are considerably higher on intertidal oyster habitat compared to open-water subtidal oyster habitat (Robillard et al. 2010; Nevins et al. 2014; Froeschke et al. 2016). Over 300 different species have been documented using oyster reefs as habitat in North Carolina (Wells 1961).

Until recently, oyster resources located in these minor bays and shoreline areas have been rarely exploited, as commercial fishing has typically been 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 has been minimal and oyster larvae produced from these areas are available to populate oyster habitat on adjacent reefs and bays. As oyster resources have become depleted on deep-water reefs, however, commercial fishermen have redirected their efforts to shallow-water reefs. In 2017, the department received a number of reports of oyster harvest in minor bays, including Christmas Bay, and received a petition requesting closing of oyster harvest in Christmas Bay.

With respect to recreational harvest, current rules allow recreational fishermen to retain up to two sacks of oysters per day during the public season; however, the biological impact of this harvest is minimal. Over the last 10 years the department has issued an average number of 36 sport oyster boat licenses per year (a sport oyster boat license is required to recreationally harvest oysters by use of tongs or dredge; otherwise, recreational harvest must be manual). The department conducts intercept surveys at boat access sites (boat ramps and marinas) throughout the year and records catch composition and effort for all species landed. The 33-year summary (1983-2016) of department data indicates 296 intercepts with anglers possessing oysters (an average of 9 intercepts per year). During the 2016 low-use season (covering the time period of the public oyster season, November through April) the department estimates that recreational fisherman spent 704 hours harvesting oysters, which resulted in a harvest of approximately 10.6 sacks (68.1 pounds estimated meat weight) over the six-month season.

The amendment to §58.22, concerning Commercial Fishing, reduces the commercial possession limit for oysters from 40 sacks per day to 30 and closes Saturday to commercial oyster harvest during the public season (November 1 of one year through April 30 of the following year). The combined effect of these two provisions is expected to be a reduction in the total number of sacks harvested during the early portion of the season, offset by an increase in the total number of sacks harvested during the later months, which is expected to provide a more stable and consistent price structure as well as a lengthening of the productive part of the season, both in terms of sacks per vessel landed and effective days fished.

A sack-limit analysis of the amendments found that the proposed measures could result in a total harvest reduction if there is no change in fishing behavior. Additional analysis of the 2015-16 season data shows that the average length of the season for a single vessel was 73 days and within that period the average commercial vessel made only 34 trips, averaging 24 sacks per day. The total number of days available during the 2015-16 was 182 days. From the first trip to the last trip the total number of days that elapsed was an average of 72 days. With the ability to expand the number of trips within the 72 days or extend trips further towards the end of the season, no significant reduction in total landings over the season is expected. The combination of the proposed daily sack limit reduction and Saturday closure could extend the effective harvest season during a time when oyster yield (meat-weight to shell-weight) is highest and more valuable to the commercial industry.

Literature Cited

Beseres Pollack, Jennifer, Hae-Cheol Kim, Elani K. Morgan, and Paul A. Montagna. 2011. Role of Flood Disturbance in Natural Oyster (Crassostrea virginica) Population Maintenance in an Estuary in South Texas, USA. Estuaries and Coasts (2011) 34:187-197.

Chapman, C.R. 1959. Oyster drill (Thais haemastoma) predation in Mississippi Sound. Proc. Natl. Shellfish. Assoc. 49:87-97.

Christian, J., K. Christian, and J. Basara. 2015. Drought and Pluvial Dipole Events within the Great Plains of the United States. Journal of Applied Meteorology and Climatology, 54, 1886-1898.

Froeschke, B.F., M.M. Reese Robillard, and G.W. Stunz. 2016. Spatial biodiversity patterns of fish within the Aransas Bay complex, Texas. Gulf Caribb Res 27: 21-32.

Gain, I.E., R.A. Brewton, M.M.R. Robillard, K.D. Johnson, D.L. Smee and G.W. Stunz. 2017. Macrofauna using intertidal oyster reef varies in relation to position within the estuarine habitat mosaic. Marine Biology 164:8. doi: 10.1007/s00227-016-3033-5.

Grabowski, J.H., A.R. Hughes, D.L. Kimbro, and M.A. Dolan. 2005. How habitat setting influences restored oyster reef communities. Ecology 86: 1926-1935.

Hoffstetter, R.P. 1977. Trends in population levels of the American oyster Crassostrea virginica Gmelin on public reefs in Galveston Bay, Texas. Technical Series Number 10. Texas Parks and Wildlife Department, Coastal Fisheries Branch. Austin, TX.

La Peyre, Megan K., B. S. Eberline, T. M. Soniat, J. F. La Peyre. 2013. Differences in extreme low salinity timing and duration differentially affect eastern oyster (Crassostrea virginica) size class growth and mortality in Breton Sound, LA. Estuarine, Coastal and Shelf Science 135, p.146-157.

May, E.B. and D.G. Bland. 1970. Survival of young oysters in areas of different salinity in Mobile Bay. Proc. S.E. Assoc. Game Fish Comm. 23:519-521.

Nevins, J.A., J.B. Pollack, and G.W. Stunz. 2014. Characterizing nekton use of the largest unfished oyster reef in the United States compared with adjacent estuarine habitats. J. Shellfish Res. 33: 227-238.

Pattillo, M.E., T.E. Czapla, D.M. Nelson, and M.E. Monaco. 1997. Distribution and abundance of fishes and invertebrates in the Gulf of Mexico estuaries, Volume II: Species life history summaries. ELMR Rep. No. 11. NOAA/NOS Strategic Environmental Assessments Division, Silver Spring, MD. 377 p.

Robillard, M.M.R., G.W. Stunz and J. Simmons. 2010. Relative value of deep subtidal oyster reefs to other estuarine habitat types using a novel sampling method. J. Shellfish Res. 29: 291-302.

Thompson, R.J., R.L.E. Newell, V.S. Kennedy and R. Mann. 1996. Reproductive processes and early development. In: Kennedy, V.S., Newell, R.I.E, and Eble, A.F (eds) The Eastern Oyster (Crassostrea virginica). Maryland Sea Grant College, University of Maryland, College Park, MD, pages 335-370.

Wang, Hongqing, W. Huangb, M. A. Harwell, L. Edmistonc , E. Johnsona, P. Hsiehd, K. Millad, J. Christensene , J. Stewart, X. Liub. 2008. Modeling oyster growth rate by coupling oyster population and hydrodynamic models for Apalachicola Bay, Florida, USA. Ecological Modelling 211, p. 77-89.

Wells, H.W. 1961. The fauna of oyster beds with special reference to the salinity factor. Ecological Monographs 31(3): 239-266.

White, M.E. and E. A. Wilson. 1996. Predators, pests, and competition. In The Eastern Oyster Crassostrea virginica, eds. V.S. Kennedy, R.I.E. Newell, and A.F. Eble, 559-580. College Park, Maryland: Maryland Sea Grant College, University of Maryland.

The department received 277 comments opposing the adoption of all or part of the proposed rules. Of the comments opposing adoption, 172 articulated a reason or rationale for opposing adoption. Those comments, accompanied by the department’s response to each, follow.

Eighty-eight commenters opposed adoption and stated support for an alternative proposal contained in a form letter. The proposal consisted of five elements: 1) an increase or no change to the current 40-sack daily limit, along with a mechanism allowing the department to alter daily sack limits during the season, based on landings and sampling; 2) retention of six days per week of oyster harvest opportunity 3) retention of current rules governing possession of undersize oysters; the elimination of Carancahua, Hynes and Keller bays from the list of bays proposed for closure to oyster harvest; and 5) replacement of the proposed closure to oyster harvest within 300-feet of the shoreline with a 300-foot closure zone around maintained piers and structures such as boat houses or boat lifts. The department disagrees with the comments and responds that implicit in the successful management of fisheries is the scientifically valid analysis of various meaningful data (population dynamics, geospatial distribution, fishing effort, and other factors) to inform and guide management strategies. With respect to daily sack limits, the department disagrees with the comment and responds that an analysis of the fishery since 2007 found that, in general, harvests of 50 sacks per day (which was lawful until the 2016-17 season) was greatest in November (when the season opens) and represented about 30% of trips. Since the 2014-15 season the percentage of trips reporting harvest of 50 sacks per day during November declined to less than 5% (2015-16 season data). Mean catch per day generally declined across the season, reaching the lowest values in April. Over the last ten years the average number of sacks harvested per day has been approximately 30. Based on these data, the department concludes that a reduction in the daily sack limit should result in the availability of oysters for harvest over a longer period of time, which in turn should result in higher yields of larger oysters for shucking, and accordingly higher sale prices. However, it is not imperative that the proposed 25-sack limit be implemented. The proposed 25-sack limit was intended to provide the most expedient avenue to stock replenishment, but a slightly higher sack limit is believed to be capable of achieving the intended goal, albeit over a longer time period; therefore the department has adopted a 30-sack limit. The department also responds that "in-season" modifications to sack limits on a bay-by-bay basis would be problematic because of the difficulties inherent in communicating these sorts of changes to the regulated community in real time (especially if done on a bay-by-bay basis) and the resultant misunderstandings and confusion that could negatively impact compliance and enforcement efforts.

With respect to opportunity, the department disagrees with the comment and responds that fishermen are not fully utilizing the available fishing opportunities the current regulations establish for this fishery. Since 2007, any given vessel fished 90 to 130 days each year on average, which is much less than the maximum possible season length of 182-183 days (155 days during 2016-17 season). Therefore, closing harvest for an additional day (in concert with a daily sack limit reduction) is not expected to lower the overall harvest during a season but should delay some harvest to later in the season when oysters will yield higher meat weights and be more valuable to the fishery. With respect to the proposed rules governing possession of undersized oysters, the department disagrees with the comment and responds that the 5% tolerance imposed by the rules is necessary if oyster populations are to recover and thrive. The rule as adopted will result in more undersize oysters being returned to the reef and contribute to recruitment. The department also notes again that the harvest of undersize oysters at the current tolerance (15%) will result in further negative economic impacts to the oyster industry because when the department is forced to close an area to allow for repopulation and recovery, those areas must remain closed for as long as it takes for the remaining oysters to reach a legal size.

With respect to the bay closures imposed by the rules as adopted, the department disagrees with the comment and responds that failing to substantially reduce harvest in these systems will result in negative biological impacts not only to oyster populations (because these bays are in effect nursery areas that populate the larger bay systems), but to other communities of great ecological importance as well (because of the physical effects of oyster harvest in these shallow water communities). The rules as adopted will provide protection to shallow water and intertidal oyster habitat and associated ecological webs while also providing a source of oyster larvae that disperse throughout these and adjacent bay systems. As previously noted in this preamble, Keller Bay in Calhoun County was removed from the list of affected bays. No other changes were made as a result of the comments.

Sixty-three commenters opposed the portion of the proposed amendments that effect closures of minor bays and shoreline areas to recreational harvest (with one comment suggesting a five-year "sunset" provision). The department disagrees with the comments and responds that these areas are unique in that they are relatively shallow systems containing intertidal and shallow-water oyster habitat. The proximity of shallow water and intertidal oyster habitat to other estuarine habitat types (e.g. seagrasses and marshes) is a major factor affecting macrofaunal (invertebrates that live on or in sediment or attached to hard substrates) density and community composition (Grabowski et al. 2005; Gain et al. 2017). Research has demonstrated that densities of macrofaunal organisms and species diversity are higher within oyster habitat compared to seagrass beds or marsh-edge interfaces (Gain et al. 2017). Further, nekton and benthic crustacean densities are considerably higher on intertidal oyster habitat compared to open-water subtidal oyster habitat (Robillard et al. 2010; Nevin et al. 2014; Froeschke et al. 2016). Over 300 different species have been documented using oyster reefs as habitat in North Carolina (Wells 1961). The shallow-water and intertidal oyster reefs occurring in the areas to be closed function as de facto spawning reserves because harvest pressure has been minimal and oyster larvae produced from these areas are available to populate oyster habitat on adjacent reefs and bays. Protecting these valuable shallow-water and intertidal oyster resources is an integral part of the overall management strategy for oysters in Texas. The length of time necessary for the success or failure of the rules is unknown, and an arbitrary expiration of effectiveness is unscientific and could interfere with or confound positive management outcomes. The department will continue to monitor oyster resources and make regulatory changes as necessary to provide harvest opportunity that is consistent with the principles of sound biological management. No changes were made as a result of the comments.

Four commenters opposed adoption and stated that the bays proposed for closure should remain open for harvest, but the lawful means of harvest should be restricted to tongs only. The department disagrees with the comment and responds that most, if not all, harvest occurring in the affected areas is by hand because the bays in question are too shallow for access by boats carrying tongs. No changes were made as a result of the comment.

Three commenters opposed adoption and stated that opposition to any area closure. The department disagrees with the comment and responds that, as explained in detail elsewhere in this rulemaking, oyster populations in Texas have been uniquely stressed and it is imperative for the department to act to protect oyster resources; protecting valuable shallow-water and intertidal oyster resources is an integral part of the overall management strategy for oysters in Texas. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that the reduction in the daily sack limit was unnecessary and in fact should be increased. The department disagrees with the comment and responds that department data indicate that landings have been stable over the last ten years (averaging 31 sacks per day or less) despite daily sack limits being higher. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules would harm individual fishermen. The department disagrees with the comment and responds that under current regulations, fishermen are not fully utilizing the available fishing opportunity. The average number of sacks harvested per day has been 31 or less even though daily limits were higher and, since 2007, vessels fished a season of 90 to 130 days each year on average, which is much less than the maximum possible season length of 182-183 days. Therefore, the department has determined that the rules as adopted will not harm fishermen and in fact could be beneficial because they will spread some harvest to later in the season, when oysters will yield higher meat weights and be more valuable at market. No changes were made as a result of the comment.

One commenter opposed and stated that the rules will not be effective. The department disagrees with the comment and responds that because the rules as adopted are based on the best available science and management strategies, there is high confidence that a positive outcome will occur. No changes were made as a result of the comment.

One commenter opposed adoption and stated that Christmas Bay should remain open to oyster harvest. The department disagrees with the comment and responds that the ecological and hydrological characteristics of Christmas Bay (especially in light of recent harvest trends) make it an especially strong candidate for the type of management strategy contemplated by the rules. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed shortening of the weekly lawful fishing hours and the proposed reduction in the threshold for possession of undersize oysters. The department disagrees with the comment and responds that the rules as proposed are designed to redistribute fishing effort to the later portion of the season when oyster meat-weights are higher and more valuable to the industry, and to return more undersize oysters and dead shell to reefs in order to increase recruitment and provide substrate. No changes were made as a result of the comment.

One commenter opposed adoption and stated that rules would negatively impact private oyster beds (oyster beds fished under a certificate of location issued by the department) and that the daily sack limit should be reduced as much as necessary in order to retain the ability to fish six days per week. The department disagrees with the comment and responds that, as noted earlier in this preamble, fishermen are not utilizing all the available days for harvest that are currently available. Therefore, the distribution of effort over a longer time period will offset the loss of one day per week of opportunity. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the proposed definition of the 300-foot shoreline closure area was confusing and that restoration areas should not be subjected to harvest. The department agrees that the proposed definition was problematic and has made changes accordingly. The department also agrees that restoration areas should not be subject to harvest. No changes were made as a result of the comment.

Seven commenters opposed adoption and stated that the rules were either not stringent enough or should apply to more waterbodies. The department disagrees with the comment and responds that the department is confident that the rules as adopted will effectively protect and conserve shallow water and intertidal oyster resources. No changes were made as a result of the comment.

The department received 1,146 comments supporting adoption of the rules as proposed.

The following groups and associations commented in opposition to adoption of the rules as proposed:

Oyster Advisory Workgroup

The following groups and associations commented in support of adoption of the rules as proposed:

Christmas Bay Foundation

Coastal Bend Bays and Estuary Program

Coastal Conservation Association

Coastal Resources Advisory Committee

Ducks Unlimited

Galveston Bay Foundation

Houston Chapter of Safari Club International

Houston Safari Club

Lone Star Bowhunters Association

Lone Star Chapter - Sierra Club

San Antonio Metropolitan Association of Bass Clubs

Sensible Management of Aquatic Resources in Texas

Texas Association of Bass Clubs

Texas Big Horn Society

Texas Black Bass United

Texas Conservation Alliance

Texas Dog Hunters Association

Texas Dove Hunters Association

Texas Foundation for Conservation

Texas Outdoor Writers Association

Texas Wildlife Association

The amendments are adopted under Parks and Wildlife Code, §76.112, and §76.301, which, respectively, authorize the commission to adjust the tolerance for undersize oysters within a cargo of oysters and regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.

§58.21.Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

(a) Seasons and Times.

(1) The open season extends from November 1 of one year through April 30 of the following year.

(2) Legal oystering hours--sunrise to 3:30 p.m.

(b) Size Limits and Possession of Undersized Oysters and Shell.

(1) Size limit--Legal oysters must be three inches or larger as measured along the greatest length of the shell.

(2) Oysters between 3/4 inch and three inches in length and dead oyster shell that is greater than 3/4 inch (measured along any axis) must be returned to the reef at the time of harvest.

(3) Unculled oysters must not be sacked and must be kept separate from culled oysters at all times.

(4) It is unlawful for any person to take or possess a cargo of oysters more than 5% of which are between 3/4 inch and three inches measured from beak to bill or along an imaginary line through the long axis of the shell. For the purposes of this paragraph, any dead oyster shell measuring greater than 3/4 inch along any axis shall be counted as an undersized oyster.

(c) Area Closures.

(1) There is no open public season for oysters from areas declared to be restricted or prohibited by the Department of State Health Services or areas closed by the commission.

(A) The director may close an area to the taking of oysters upon finding that the area is being overworked or damaged or the area is to be reseeded or restocked, and may re-open the areas as provided in Parks and Wildlife Code, §76.115.

(B) An order to close an area shall state the criteria used by the director to determine that the closure is warranted.

(C) The department shall consult with members of the oyster industry regarding the management of oyster beds in the state.

(D) For the purposes of this section an area will include those designated by the Department of State Health Services as "Approved" and "Conditionally Approved" or other areas based on evaluation by the department.

(E) No person may harvest oysters in an area closed by order of the commission or the executive director.

(2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A) and (B) of this paragraph cease effect on November 1, 2018.

(A) Galveston Bay.

(i) Todd's Dump Reef. The area within the boundaries of a line beginning at 29° 29' 55.4"N, 94° 53' 40.1"W (29.498733°N, -94.894467°W; corner marker buoy A); to 29° 29' 55.4"N, 94° 53' 30.6"W (29.498724°N, -94.891834°W; corner marker buoy B); thence to 29° 29- 46.6"N, 94° 53- 30.4"W (29.496273°N, -94.891768°W; corner marker buoy C); thence to 29° 29' 46.6"N, 94° 53' 40.2"W (29.496273°N, -94.894495°W; corner marker buoy D); and thence back to corner marker buoy A.

(ii) South Redfish Reef. The area within the boundaries of a line beginning at 29° 28' 21.1"N, 94° 49' 17.3"W (29.472517°N, -94.821472°W; corner marker buoy A); thence, to 29° 28' 08.3"N, 94° 49' 00.3"W (29.468971°N, -94.816744°W; corner marker buoy B); thence to 29° 27' 58.9"N, 94° 49' 09.7"W (29.466359°N, -94.81935°W; corner marker buoy C); thence to 29° 28' 12.0"N, 94° 49' 26.5"W (29.469989N, -94.824025°W; corner marker buoy D); and thence and back to corner marker buoy A.

(iii) Texas City 1 (Mosquito Island). The area of Middle Reef contained area within the boundaries of a line beginning at 29° 23' 52.1"N, 94° 52' 41.3"W (29.397811°N, -94.878138°W; corner marker buoy A); thence to 29° 23' 52.3"N, 94° 52' 39.2"W (29.39786°N, -94.87757°W; corner marker buoy B); thence to 29° 23' 45.1", 95° 52' 37.9"W (29.395867°N, -94.877184°W; corner marker buoy C); thence to 29° 23' 44.9"N, 95° 52' 39.9"W (29.395813°N, -94.877753°W; corner marker buoy D); and thence back to corner marker buoy A.

(iv) Texas City 2 (Fishing Pier). The area within the boundaries of a line beginning at 29° 22' 58.2"N, 94° 51' 39.7"W (29.382833°N, -94.861037°W; corner marker buoy A); thence to 29° 22' 57.5"N, 94° 51' 36.2"W (29.382645°N, -94.860069°W; corner marker buoy B); thence to 29° 22' 56.3"N, 94° 51' 36.6"W (29.382301°N, -94.860169°W; corner marker buoy C); thence to 29° 22' 57.0"N, 94° 51' 40.1"W (29.382491°N, -94.861135°W; corner marker buoy D); and thence back to corner marker buoy A.

(B) Matagorda Bay - Half-Moon Reef. The area within the boundaries of a line beginning at 28° 34' 18.8"N, 96° 14' 08.4"W (28.571889°N, -96.235667°W; corner marker buoy A); thence to 28° 34' 15.7N, 96° 13' 59.4"W (28.571028°N, -96.233167°W; corner marker buoy B); thence to 28° 33' 53.8"N, 96° 14' 19.5W (28.564944°N, -96.23875°W; corner marker buoy C); thence to 28° 33' 57.0"N, 96° 14' 28.5"W (28.565833°N, -96.24125°W; corner marker buoy D); and thence back to corner marker A.

(C) Christmas Bay, Brazoria County.

(D) Carancahua Bay, Calhoun and Matagorda County.

(E) Powderhorn Lake, Calhoun County.

(F) Hynes Bay, Refugio County.

(G) St. Charles Bay, Aransas County.

(H) South Bay, Cameron County.

(I) 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.

§58.22.Commercial Fishing.

(a) It is lawful to take oysters for commercial use by non-mechanical means.

(b) Gear Restrictions. During the open public season, it is unlawful while taking or attempting to take oysters for pay or the purpose of sale, barter, or exchange or any other commercial purpose to:

(1) use more than one dredge;

(2) use a dredge which exceeds 48 inches in width and a two-barrel capacity;

(3) have on board more than one dredge, unless spare dredges are secured, to or on the wheelhouse, or to the deck in such a manner as to not be readily accessible for use;

(4) have on board more than one winch chain, cable, or rope unless spare chains, cables or ropes are secured below deck; or

(5) have on board more than one lifting block unless spare blocks are secured below deck.

(c) Seasons and Times

(1) The open season extends from November 1 of one year through April 30 of the following year.

(2) Legal oyster fishing days- Monday through Friday.

(3) Legal oystering hours--sunrise to 3:30 p.m.

(d) Possession Limits. It is unlawful to take in one day, for pay or the purpose of sale, barter, or exchange, or any other commercial purpose, or to have on board any licensed commercial oyster boat more than:

(1) 30 sacks of culled oysters of legal size; or

(2) the volumetric equivalent of 6 sacks of unculled oysters while on the reef.

(e) Harvester/Shell Recovery Tag. A person who harvests oysters from Texas waters for commercial purposes shall, immediately upon harvest, attach a properly executed harvester/shell recovery tag to the outside of the sack in which the oysters are placed.

(1) A Harvester/Shell Recovery Tag is properly executed when all required information has been entered on the tag.

(2) The tag must be placed on the outside of the sack immediately upon filling, prior to unloading, and remain until the sack is empty or retagged and thereafter kept on file for 90 days.

(3) The appropriate harvester/shell recovery tag (green or white) must be affixed to the sack regardless of the season or whether the requirements of 25 TAC §241.57 (relating to Molluscan Shellfish Harvesting and Handling) apply.

(f) Reporting Requirements. A dealer who purchases or receives oysters directly from any person other than a licensed dealer must file a report with the department each month as prescribed under Parks and Wildlife Code, §66.019(c).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 11, 2017.

TRD-201704086

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Effective date: November 1, 2017

Proposal publication date: July 21, 2017

For further information, please call: (512) 389-4775