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

The Texas Parks and Wildlife Commission in a duly noticed meeting on August 26, 2021, adopted an amendment to 31 TAC §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, without changes to the proposed text as published in the June 25, 2021, issue of the Texas Register (46 TexReg 3851). The adopted rule will not be republished.

The amendment prohibits the harvest of oysters for two years within the boundary of the restoration area on four reefs: two sites in Conditionally Approved Area TX-6 in Galveston Bay (Dollar Reef and North Todd's Dump, approximately 50 and 65 acres, respectively), one site in Conditionally Approved Area TX-1 in Galveston Bay (Pepper Grove Reef - Middle Site, 2 acres), and one site in Approved Area TX-18 at the mouth of Keller Bay in the Matagorda Bay system (Keller Bay Reefs, 82 acres). The amendment temporarily closes a total of 199 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 1,640 acres of oyster habitat returned to productive habitat within these bays.

House Bill 51 (85th Legislature, 2017) 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. For the 2021 - 2022 fiscal years, the department anticipates this requirement will result in the restoration of approximately 47 acres. Funds and materials generated from House Bill 51 are expected to be used to restore up to 35.6 acres on Todd's Dump Reef and up to 20 acres on Keller Bay Reefs in 2021-2022.

Following Hurricane Harvey in 2017, the National Marine Fisheries Service (NMFS) awarded the Texas Parks and Wildlife Department over $13 million of fisheries disaster relief funding that was appropriated by Congress under the Bipartisan Budget Act of 2018 (P.L. 115-123). The notification to the governor of Texas from National Marine Fisheries Service (NMFS) stated that funds should be spent to "strengthen the long-term economic and environmental sustainability of the fishery" and over $4 million was dedicated specifically to oyster restoration activities. A portion of these funds, combined with funding generated by House Bill 51 (85th Texas Legislature, 2017) and the Shell Recovery Program (82nd Texas Legislature, 2011), will be used to restore up to 120 acres of oyster habitat in Galveston and Matagorda bay systems in 2021-2022. Within Matagorda Bay system, oyster habitats will be restored within an 82-acre area on Keller Bay reefs. Within the Galveston Bay system, oyster habitats will be restored in a 50-acre area on Dollar Reef and a 65-acre area on North Todd's Dump reef. In addition, the Coastal Conservation Association has donated funding to restore a 2-acre area on Pepper Grove reef ("Pepper Grove Reef - Middle Site) during this large restoration event. Oyster abundance on these reefs has severely declined over time; average oyster abundance on these reefs is 50- 75% less than the average oyster abundance on other reefs in the Matagorda Bay and Galveston Bay systems. The portion of the reefs selected for restoration is characterized by degraded substrates. The restoration activities will focus on establishing stable substrate and providing suitable conditions for spat settlement and oyster bed development.

The amendment also removes references to restoration sites in Copano Bay, which re-opened for harvest under the terms of a previous rulemaking.

The department received 14 comments opposing adoption of the rule as proposed.

One commenter opposed adoption and stated that there is no reason to close South Bay, large amounts of sewage are pumped into the bay, and the U.S. Army Corps of Engineers is not helpful, none of which are germane to the rule as proposed. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department should instead focus on siltation of reefs. The department disagrees with the comment and responds that the Parks and Wildlife Commission has no authority to regulate the causes of siltation; however, the restoration efforts typically result in oyster habitat that is more resilient to siltation due to the increase in vertical relief, and the two-year closure improves the restored reef's ability to survive future siltation events. No changes were made as a result of the comment.

Four commenters opposed adoption and stated that areas in other bay systems should be closed. The department neither agrees nor disagrees with the comments and responds that the rule contemplates closures in Galveston and Matagorda bay systems; however, the department continues to evaluate all suitable areas on the coast for future additional oyster restoration efforts. No changes were made as a result of the comments.

Two commenters opposed adoption and stated that the closed areas in Copano Bay should not be reopened. The department disagrees with the comment and responds that the terms of restoration efforts for the sites in Copano Bay have been satisfied and those sites are therefore being opened for oyster harvest efforts. No changes were made as a result of the comments.

One commenter opposed adoption and stated that closures should apply only to commercial activities. The department disagrees with the comment and responds that the fastest pathway to restoration is to close an area to all harvest, which is also the most equitable method of resource opportunity distribution. No changes were made as a result of the comment.

One commenter opposed adoption and stated that oyster reefs should be closed on an alternating basis for nutrient regeneration and that fees on non-resident oyster license should be raised to counter negative impacts to oyster reefs from out-of-state boats. The department disagrees with the comment and responds that the most effective method for reef restoration is full closure, which is also less confusing for the public. The department also responds that because environmental factors are the chief components driving reef degradation there is no benefit from attempting to reduce out-of-state effort by way of fee increases. No changes were made as a result of the comment.

One commenter opposed adoption and stated that licenses should be issued for specific bays. The department neither agrees nor disagrees with the comment and responds that the rule as adopted contemplates only the restoration efforts at the identified locations and not the management of oyster resources via licensure requirements or applicability. No changes were made as a result of the comment.

One commenter opposed adoption and stated that permanent oyster sanctuaries are necessary, along with prohibitions on shrimping and other commercial exploitation. The department neither agrees nor disagrees with the comment and responds the rule as adopted contemplates restoration efforts at the identified locations and not sanctuary creation or management of harvest effort other than that directed at oysters; however, the department will continue to monitor and evaluate oyster resources, and all appropriate management strategies will be considered. No changes were made as a result of the comment.

The department received 508 comments supporting adoption of the rule as proposed.

The amendment is adopted 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 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 6, 2021.

TRD-202103960

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: November 1, 2021

Proposal publication date: June 25, 2021

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