SUBCHAPTER B. RIGHTS-OF-WAY OVER PUBLIC LANDS
The General Land Office (GLO) adopts amendments to 31 TAC, Part 1, Chapter 13, relating to Land Resources, Subchapter B, relating to Rights-of-Way Over Public Lands, §13.17, relating to Fees and Renewal Terms for Right-of-Way Easements, with changes to the proposed text as published in the June 20, 2008 issue of the Texas Register (33 TexReg 4820).
The amendments to §13.17(a), relating to Fees for Right-of-Way Easements, are adopted with change to add language to the attached graphic rate schedules for 10 and 20-year pipeline easement terms. The 10 and 20-year pipeline easement terms were both changed by 1) adding language to exempt directional drilling easements from the Damages Fees, 2) adding that September 1 is the adjustment date for annual rate changes, and 3) adding that the annual rate increase may not exceed 3% of the previous year rate. The Pipeline Easements Regions Map is adopted without change.
The intent of this rulemaking is to amend the applicable fees for pipeline right-of-way easements across public lands and to change the number of and boundaries of the regions that define the geographic limits to which the fees apply. References to renewal terms are deleted in one case and modified in another in order to allow the commissioner the flexibility to deal with the merits of each easement, as provided for by statutory changes made during the 80th Legislature by Senate Bill 654.
BACKGROUND AND SECTION-BY-SECTION ANALYSIS OF PROPOSED AMENDMENTS
The amendments to §13.17(a) substitutes the Attached Graphic with a new graphic that provides revised rate schedules for 10 and 20-year pipeline easement terms and also provides a revised Pipeline Easements Regions Map. The rate schedule includes notes that ascribe processing fees, minimum easement rates, an annual rate adjustment index, and clarifications about the applicability of the rates. The current pipeline easement rates were established in February 1984 and they were applied to standard 10-year easement terms. The Regions map was also established in 1984.
The amendments to §13.17(c) strikes a phrase requiring a renewal term of 10 years for easements initially issued after December 31, 1983. Striking this enables the commissioner to work with the grantee on renewal terms under the discretion provided by §51.291 et.seq. Texas Natural Resources Code (TNRC).
The amendments to §13.17(d) changes from 10 years to 20 years in a phrase that allows the commissioner to renew easements for any length of time less than the 20 years, and retains the language that specifies that the rate for renewal for a specific period of time will be prorated accordingly.
The amendments to §13.17(c) and §13.17(d) are adopted without changes.
TAKINGS IMPACT ASSESSMENT
The GLO has evaluated the adopted rulemaking in accordance with Texas Government Code, §2007.043(b), and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines, to determine whether a detailed takings impact assessment is required. The GLO has determined that the proposed rulemaking does not affect private real property in a manner that requires real property owners to be compensated as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Article I, Sections 17 and 19, of the Texas Constitution. Furthermore, the GLO has determined that the proposed rulemaking would not affect any private real property in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the rule amendments. The GLO has determined that the proposed rulemaking will not result in a taking of private property and that there are no adverse impacts on private real property interests inasmuch as the property subject to the proposed amendments is owned by the state.
CONSISTENCY WITH CMP
The proposed rulemaking is subject to the CMP, 31 TAC §505.11(a)(1)(C) - (I) and §505.11(c), relating to the Actions and Rules Subject to the CMP. The GLO has reviewed these proposed actions for consistency with the CMP's goals and policies in accordance with the regulations of the Coastal Coordination Council (Council). The applicable goals and policies are found at 31 TAC §501.12 (relating to Goals); §501.17 (Relating to Policy for Construction, Operation, and Maintenance of Oil and Gas Exploration and Production Facilities); and §501.23 (relating to Policies for Development in Critical Areas); and §501.24 (relating to Policies for Construction of Waterfront Facilities and Other Structures on Submerged Lands). The proposed rulemaking changes only the amount of compensation paid for easements, not the manner in which operations are conducted. Therefore, since requests for the use of coastal public land must continue to meet the same criteria for GLO approval, the GLO has determined that the proposed actions are consistent with applicable CMP goals and policies.
PUBLIC COMMENTS
Written comments on the proposed amendment were received from three industry organizations.
RESPONSE TO COMMENTS
Written responses were sent to the industry organizations. Changes to 13.17(a) were made as a result of the comments that were received. In addition, GLO will establish procedures for handling abandonment of pipelines.
STATUTORY AUTHORITY
The amendments are adopted under the Texas Natural Resources Code §§51.291 - 51.307, relating to the commissioner's ability to grant easements or other interests in property for rights-of-way or access across, through and under state public land; and Texas Natural Resources Code §51.014(a) and §51.014(b), providing that the commissioner may adopt procedural and substantive rules which it considers necessary to administer, implement and enforce Chapter 51, Texas Natural Resources Code, with the approval of the governor.
Texas Natural Resources Code §§51.291 - 51.307 are affected by the adopted amendments.
§13.17.Fees for Right-of-Way Easement.
(a) The following table lists the fees and terms for pipeline right-of-way easements across public lands as established by the commissioner of the General Land Office.
Figure: 31 TAC §13.17(a) (.pdf)
(b) Right-of-way easements for pipelines issued prior to December 31, 1983, shall be renewed upon the expiration of their current term at the full rate presented in subsection (a) of this section. These renewals shall be considered as easements for new pipelines for purposes of subsection (c) of this section.
(c) Right-of-way easements issued for new pipelines after December 31, 1983, shall be renewed at the full rate applicable to pipelines at the time of renewal, provided grantee has complied with all the terms and conditions of the easement agreement, including the notice, application, renewal fee payment, and documentation requirements contained therein.
(d) At the commissioner's discretion, a right-of-way easement for pipelines may be renewed for a term less than 20 years and the rates prorated accordingly.
(e) The following table lists the fees and terms for power and telephone line rights-of-way over public lands as established by the commissioner.
Figure: 31 TAC §13.17(e) (No change.)
(f) Renewal fees for all power and telephone line rights-of-way over public lands are the rates in effect at the time of renewal.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804059
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs
General Land Office
Effective date: September 1, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 475-1859
SUBCHAPTER A. STATEWIDE HUNTING AND FISHING PROCLAMATION
The Texas Parks and Wildlife Commission adopts amendments to §§65.9 - 65.11, 65.42, and 65.72, concerning the Statewide Hunting and Fishing Proclamation. Sections 65.9 and 65.72 are adopted with changes to the proposed text as published in the February 22, 2008, issue of the Texas Register (33 TexReg 1494). Sections 65.10, 65.11 and 65.42 are adopted without changes and will not be republished.
The change to §65.9, concerning Open Seasons: General Rules, corrects an inaccurate reference to a statutory provision. The proposed text cited Parks and Wildlife Code, §62.001. The reference should have been to Parks and Wildlife Code, §62.003.
The change to §65.72 eliminates the proposed three-year extension of the provisions of subsection (c)(5)(A), which allowed the take of catfish by means of lawful archery equipment. As adopted, the change makes it unlawful for any person to take catfish by means of lawful archery equipment after August 31, 2008.
The change to §65.72(a)(7) establishes a formula, rather than a flat weight limit, for calculating the allowable annual landings of menhaden. The rule now provides that the starting point (baseline) for calculating the annual landings limit for 2009 is 31,500,000 pounds. In 2010 and subsequent years, the baseline will be adjusted upwards in the amount by which the actual catch in the previous season fell short of 31,500,000 pounds, however, the upward adjustment allowed under subsection (a)(7)(B) cannot exceed 3,150,000 pounds. In the event the actual catch in a season exceeds 31,500,000 pounds, a downward adjustment will be made in the following season in the amount by which the baseline was exceeded in the previous season. An additional tolerance of 10% is allowed, but any exceedance will reduce the annual limit in the following season. Additionally the proposal was modified to specify that the Captain Daily Fishing Reports (CDFR) or another system developed by TPWD will be utilized as a tracking mechanism for the annual landings limit.
The amendment to §65.9, concerning Open Seasons: General Rules, alters subsection (a) to make it consistent with statutory changes made by the legislature. Section 44 of House Bill 12, enacted by the 80th Legislature, amended Parks and Wildlife Code, §62.001, to prohibit the hunting of any bird or animal on a public roadway or right of way, except as provided. The amendment is necessary to ensure that the agency's regulations are consistent with statutory law.
The amendment to §65.10, concerning Possession of Wildlife Resources, allows certain department-issued tags to function as proof-of-sex documentation for harvested deer. Current rules require that proof of sex remain with deer, turkey, or antelope until reaching either the possessor's permanent residence or a cold storage/processing facility. For deer, proof of sex consists of the unskinned head, a receipt from a taxidermist, or a signed statement from the owner of the land where the deer was killed. The amendment adds new subsection (e) to allow specific department-issued tags (Managed Lands Deer Permit, Landowner Assisted Management Permit, antlerless mule deer permit, special permits on wildlife management areas and state parks, and Antlerless and Spike-buck Control Permit) to function as proof-of-sex documentation. The amendment is necessary to reduce duplication of effort on the part of hunters. The amendment also corrects an inaccurate reference in subsection (b)(6).
The amendment to §65.11, concerning Lawful Means, eliminates the minimum draw weight requirement for archery equipment. Under current rule, the minimum draw weight for compound bows, recurved bows, and longbows is 40 pounds. Staff believes that elimination of the minimum draw weight will make bowhunting more accessible to younger hunters and others who might have difficulty drawing a 40-pound bow.
The amendment to §65.42, concerning Deer, implements a nine-day, buck-only mule deer season in Andrews (east of U.S. Highway 385), Martin, and Gaines counties. Under current rule, there is no open season for mule deer in Andrews (east of U.S. Highway 385), Martin, or Gaines counties. The nine-day, buck-only season offers increased hunter opportunity without adversely impacting mule deer reproduction or distribution. The literature suggests that the implementation of a buck-only season will not have any measurable impact on herd productivity or expansion; however, a measurable change in the age structure of bucks is anticipated as a result of harvest pressure on a previously unhunted population.
The amendment to §65.42 also implements a 16-day, buck-only general season and a 30-day buck-only archery season for mule deer in Sherman and Hansford counties. Under current rule, there is no open season for mule deer in Sherman or Hansford counties. Each county has low-density populations of mule deer in pockets of suitable habitat. The literature suggests that the implementation of a buck-only season will not have any measurable impact on herd productivity or expansion; however, a measurable change in the age structure of bucks is anticipated as a result of harvest pressure on a previously unhunted population. The nature of mule deer populations in the Panhandle allows the department to provide those counties a 30-day archery-only season in addition to the 16-day general season. The amendment therefore also implements an archery season in Hansford and Sherman counties during which harvest is restricted to buck deer. The hunter success rate for archers is statistically insignificant and the biological impacts of that harvest are negligible when harvest is restricted to buck deer. The rule is expected to result in increased hunter opportunity with no measurable effect on reproduction or distribution of mule deer populations.
The amendment to §65.72, concerning Fish, consists of several components.
The portions of the amendment affecting subsections (a)(7) and (c)(5)(J) function collaboratively to establish a limit for the purse seine fishery for menhaden. Under current rules a boat may not take or assist in taking menhaden in tidal waters unless the appropriate menhaden license has been obtained. The menhaden season opens on the third Monday in April and runs through the first day in November. There are no daily bag limits or trip limits, but menhaden may not be taken within one-half mile of the shore or one mile of a jetty or pass. In effect, the amendment maintains current rules, but closes the fishery once the annual landings limit has been reached. The baseline for calculating the annual landings limit is based on a five-year average of landings from 2002 - 2006.
The primary benefits of the rule are: 1) protection of the menhaden population; and 2) protection of bycatch species. Menhaden is a primary component of the gulf estuarine marine ecosystem. When considering predator-prey relationships, it is a key forage species for many other species in the gulf. Menhaden eggs and larvae are food for various filter-feeding and larval fishes and invertebrates including but not limited to themselves, other clupeids, chaetognaths, coelenterates, mollusks, and ctenophores. Fishes known to eat menhaden include: the mackerels, bluefish, sharks, white and spotted seatrout, blue runner, ladyfish, longnose and alligator gars, and red drum. Piscivorous birds that have been found to consume menhaden include: brown pelicans, osprey, common loons and terns. Marine mammals have also been reported as predators of menhaden. (Gulf States Marine Fisheries Commission Regional Management Plan #99, 2002).
The rule as adopted allows the continued commercial harvest of menhaden, but would prevent significant expansion of this industry in Texas waters. Texas law (TPWC §61.002) charges the department with the duty to conserve wildlife resources, including aquatic animal life such as menhaden. With regard to nongame fish species such as menhaden, the department is obligated to establish limits on taking and possession that it considers necessary to manage the species (TPWC §67.004).
All commercial salt water fisheries in Texas, other than menhaden, are regulated by limited entry, bag limits, or both. Accordingly, to bring management of the menhaden fishery in line with management of other commercial fish species in Texas, the department has chosen to manage the overall take of menhaden by establishing a flexible annual catch limit, which is analogous to a bag limit but more appropriate for a fishery of this nature.
Menhaden is a fishery that has had a long history of exploitation in the gulf. The goal of managing Texas fisheries is to manage fisheries at a level that is sustainable, including all sources of mortality that may be occurring. This includes natural mortality and any direct or indirect (bycatch) fishing mortality that may be occurring. In general, the goal is to manage a fishery for maximum economic yield (MEY). This yield is typically below the yield which would be considered the maximum sustainable yield (MSY). Optimum yield for other Texas fisheries, such as shrimp, is defined as the amount of shrimp (yield) that the fishery will produce on a continuing basis to achieve the maximum economic benefits (MEY) to the shrimping industry and the state as modified by any relevant social or ecological factors (Texas Shrimp Fishery Management Plan, 1989, Source Document, page 3). A National Research Council's Committee on Ecosystem Effects of Fishing, Phase II (NRC 2006) report concluded that if the United States is to manage fisheries within an ecosystem context, food web interactions, life-history strategies, and trophic effects will need to be explicitly accounted for when developing fishery harvest strategies. A more precautionary approach to forage fish management is needed to provide buffers against multiple sources of uncertainty in the scientific advice and ensure that the integrity of the marine food web is not compromised by excessive removals of these key species. In response to the NRC report a group of 91 marine scientists recommended that such an approach should be guided by the following general principles: (1) forage fish play a critical ecological role; (2) there is uncertainty involved in measuring the impacts of forage fish fisheries; (3) MSY is not an appropriate basis for setting catch levels of forage fish; and (4) managing forage fish requires more conservative standards than MSY.
While the available scientific evidence does not indicate that menhaden is currently overfished, there are reasons for concern and therefore for assuring that the industry does not significantly expand in Texas waters. The stock assessment published by Vaughn et al. (2007) (Fisheries Research 83: 263-275) clearly indicates that the stock is below the ideal level. Moreover, the stock assessment cautions that the menhaden stock may experience increased susceptibility due to the hypoxic zone. The hypoxic zone is an area off the Louisiana and Texas coast that exhibits low dissolved oxygen in bottom waters. The assessment indicated that the gulf menhaden probably migrate from areas of low dissolved oxygen, as suggested by the poor or zero catches off central Louisiana when the dead zone impinges close to the shoreline. This displacement is likely to concentrate menhaden schools into narrow coastal corridors, making them more susceptible to exploitation. The stock assessment found a recent rise in fishing mortality (a measurement of the rate of removal of fish from a population by fishing) in the menhaden stock. The stock assessment further concludes that a rise in fishing mortality and a decrease in landings is consistent with a decrease in abundance. The stock assessment indicates if this is true, the increased susceptibility, along with decreased recruitment, could account for the recent rise in fishing mortality. It goes on to explain that the rise in fishing mortality is consistent with a decrease in abundance, which follows declining recruitment.
In addition, the bycatch (the non-target species caught in menhaden nets and usually killed) from this fishery is also part of the ecosystem; thus, the impacts of menhaden harvest on other fisheries and the aquatic ecosystem must also be considered. Note that the bycatch figures estimated here are slightly revised from the statistics used in the rule proposal preamble. This change reflects a correction of a mathematical error made in the original calculation. The department estimates that at current harvest levels the total bycatch in Texas waters from the commercial menhaden industry is approximately 416,000 organisms per year. The top five bycatch species by weight are Atlantic croaker (25%), striped mullet (17%), gafftopsail catfish (12%), silver seatrout (10%), and Spanish mackerel (9%) (in rank order of the catches with the approximate percent by weight in parenthesis). The top five bycatch species by number are gafftopsail catfish (29%), Atlantic croaker (28%), crevalle jack (9%), sharks (7%), and Penaeid sp. (6%). Additionally, other key recreational species, such as red drum and sharks, appear in menhaden bycatch. The approximate number of red drum and shark mortalities associated with the current menhaden harvest is 2,080 and 29,119, respectively. The red drum fishery in the federal waters of the Gulf of Mexico remains completely closed to any directed commercial or recreational fishing to ensure the stocks will recover from being overfished. Similarly, sharks have undergone greater protection since bycatch studies were performed and further regulatory action for some species is being contemplated (Federal Register-July 27, 2007). Limits for recreational fishermen have been significantly curtailed and quota restrictions have been implemented to protect shark species. The proposed rule would prevent expansion of bycatch from the menhaden industry beyond current levels.
The portions of the amendment affecting §65.72(b)(2)(D)(i) alter largemouth bass regulations on Lake Nacogdoches, Purtis Creek State Park Lake, and Lake Raven; carp regulations on Lady Bird Lake; spotted bass regulations on Lake Texoma; and red drum regulations on lakes Colorado City and Nasworthy.
The current harvest regulations for largemouth bass on Lake Nacogdoches consist of a 14-21 inch slot limit and a five-fish daily bag limit, and anglers are allowed to retain one bass of 21 inches or greater in length per day. The amendment to §65.72(b)(2)(D)(i) implements a 16-inch minimum length limit, and anglers are allowed to temporarily retain live fish 24 inches or larger in a livewell for purposes of weighing for possible inclusion in the department's ShareLunker program; however, oversized fish must be released if not accepted by the department. The amendment is necessary because the department has determined that Lake Nacogdoches is capable of producing trophy-quality largemouth bass. Lake Nacogdoches currently supports a high-quality largemouth bass fishery with potential for development. It has demonstrated trophy largemouth bass potential, having produced four fish heavier than 13 pounds. A 14-21 inch slot limit was implemented in 1988 to provide increased numbers of quality-sized bass. Spring quarter creel surveys from 2001 and 2005 indicated high directed fishing effort and catch rates for largemouth bass. Largemouth bass growth is adequate, with fish reaching 14 inches in 2.6 years, and electrofishing catch rates and recruitment are high. Therefore, increasing the minimum length limit and implementing catch-and-release only rules will allow the population of larger fish to increase.
Current regulations on Lake Raven and Purtis Creek State Park Lake restrict angling to catch-and-release only, but provide for temporary retention of live largemouth bass 21 inches or longer in length for weighing at department-operated weigh stations. The amendment to §65.72(b)(2)(D)(i) increases the length limit for temporary retention to 24 inches, allows for the weighing of fish by means of personal scales, and eliminates the requirement for weighing at a department-operated weigh station. As on Lake Nacogdoches, oversized fish must be released if not accepted by the department's ShareLunker program. The rule is necessary to explore the possibility of creating a trophy largemouth bass fishery and to address problems associated with the availability of weigh stations for public use at all times.
There are currently no daily bag or minimum length limits for common carp on Lady Bird Lake (formerly Town Lake, in Travis County). The amendment to §65.72(b)(2)(D)(i) implements a daily bag limit of one common carp 33 inches or larger per day with an unrestricted harvest of common carp less than 33 inches. Lady Bird Lake is a 468-acre impoundment located on the Colorado River adjacent to downtown Austin. Recently, the reservoir has received national and worldwide notoriety for producing documented catches of numerous large common carp. During a carp tournament in 2006, one angler landed a new state rod-and-reel record for common carp, weighing 43.13 pounds. Carp-angling groups organize catch-and-release tournaments and have advocated for protecting the trophy carp population in Lady Bird Lake from harvest. The proposed length limit is based on the Gabelhouse equation that sets trophy length at approximately 75% of world-record length. The amendment is necessary to explore the possibility of establishing Lady Bird Lake as a premier fishery for common carp.
Current regulations for spotted bass on Lake Texoma establish a 14-inch minimum length limit. The amendment to §65.72(b)(2)(D)(i) eliminates the minimum length limit. The 14-inch minimum length limit for spotted bass on Lake Texoma was the only exception to the statewide spotted bass limit and was implemented to create uniform regulations on both the Texas and Oklahoma sides of Lake Texoma. The Oklahoma Department of Wildlife Resources (ODWR) has removed both the length and bag limits for spotted bass in all Oklahoma waters except Lake Texoma. ODWR has agreed to retain the five-fish bag limit for Lake Texoma in order to remain consistent with the bag limit in Texas.
Current regulations for red drum on Lake Nasworthy allow for unrestricted bag and possession limits. Red drum were stocked on the lake prior to 2002 because the power plant on the lake provided warm water discharges sufficient to sustain populations through cold weather. In 2002, the power plant began operating on an as-needed basis, resulting in a partial red drum kill during the winter of 2002 - 2003. The department has determined that a viable population of red drum no longer exists in Lake Nasworthy, making the exception to the statewide standards superfluous.
Current harvest regulations for red drum on Lake Colorado City consist of a 20-inch minimum length limit and no daily bag limit. The department has discontinued the stocking of red drum on Lake Colorado City because of the presence of and continued threat of fish kills due to golden alga. A viable population of red drum no longer exists in Lake Colorado City; therefore, the exception to the statewide standard is no longer necessary.
The portion of the amendment affecting §65.72(c)(2) restricts anglers to a maximum of two lines/poles on community fishing lakes (CFLs) that are not within state parks. CFLs are public impoundments of 75 acres or smaller located totally within an incorporated city limits or a public park, and all impoundments of any size lying totally within the boundaries of a state park. Under current rule, means and methods on CFLs are restricted to pole-and-line angling only. Because of their proximity to population centers and easy access, CFLs are quite popular. CFLs are important because they are good places to introduce people to the angling experience, particularly youth and families. The department has received complaints that some persons are monopolizing bank space on CFLs by utilizing large numbers of taking devices. Therefore, the amendment restricts the number of devices that a person may employ while fishing on a CFL. The amendment exempts lakes on state parks because per-person angling effort on state park lakes is well dispersed and user conflicts have not been documented. The amendment is necessary to ensure equitable distribution of angling opportunity and prevent user conflicts.
Current regulations allow the harvest of catfish by means of lawful archery equipment until August 31, 2008. The department proposed a three-year extension of that provision. In the course of receiving and analyzing public comment, the commission has concluded that the provision is not consistent with regulations governing the means and methods used to take other species of game fishes; therefore, the commission elected not to adopt the proposal and it will be unlawful to take catfish with archery equipment after August 31, 2008.
The amendment to §65.9 will function by making the agency's regulations consistent with statutory law.
The amendment to §65.10 will function by allowing Managed Lands Deer Permits, Landowner Assisted Management Permits, antlerless mule deer permits, special permits on wildlife management areas and state parks, and Antlerless and Spike-buck Control Permits to function as proof-of-sex documentation for harvested deer.
The amendment to §65.11 will function by eliminating the minimum draw weight requirement for archery equipment.
The amendment to §65.42 will function by implementing a nine-day, buck-only mule deer season in Andrews (east of U.S. Highway 385), Martin, and Gaines counties and a 16-day, buck-only general season (with a 35-day buck-only archery season) for mule deer in Sherman and Hansford counties.
The amendment to §65.72 will function by altering largemouth bass regulations on Lake Nacogdoches, Curtis Creek State Park Lake, and Lake Raven; carp regulations on Lady Bird Lake; spotted bass regulations on Lake Texoma; and red drum regulations on lakes Colorado City and Nasworthy; by prohibiting the take of catfish by lawful archery equipment; and by establishing an annualized total allowable catch for commercial harvest of menhaden.
The department received 52 comments opposing adoption of the amendment to §65.10, which allowed certain department-issued tags to function as proof-of-sex for white-tailed deer. Fourteen commenters stated a rationale or explanation for opposing adoption of the proposed amendment. Those comments, accompanied by the agency's response, are as follows.
One commenter opposed adoption and stated that there are enough limitations on tagging already. The department agrees with the commenter and responds that the amendment as adopted does not impose limitations, it removes them. No changes were made as a result of the comments.
Three commenters opposed adoption and stated that elimination of the current requirement would make it easier for unscrupulous hunters and land owners to beat the system. The department disagrees with the comments and responds that the rule as adopted does not eliminate the proof-of-sex requirement, it simply eliminates duplication. There is still a proof-of-sex requirement and persons who do not comply with it can be cited. No changes were made as a result of the comments.
Three commenters opposed adoption and stated the amendment increases complication and confusion. The department disagrees with the comment and responds that the amendment as adopted is a simplification and should not present complications. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the amendment should not include Managed Lands Deer Permits (MLDP) because MLDP holders are not trustworthy. The department disagrees with the comment and responds that there is no indication that persons who are issued MLDPs are any more or less trustworthy than any other population and that there is no reason to exclude them. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the amendment creates a loophole for "post-season antler hunting." The department disagrees with the comment and responds that hunting outside of an open season is unlawful, whether proof-of-sex requirements are obeyed or not. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that if the department was willing to trust permit holders, it should trust all hunters. The department disagrees that the issue revolves around trust. Persons who possess deer under circumstances that require proof-of-sex documentation must possess evidence of the sex of the deer. The rule as adopted allows certain department-issued, sex-specific tags to function as proof of sex. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that the amendment allows a select few to avoid requirements that everyone else must follow. The department disagrees with the comment and responds that the amendment does not eliminate proof-of-sex requirements, it provides additional means to satisfy the requirements. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the current regulation is sufficient. The department disagrees with the comment and responds that the department believes the rule as adopted will simplify documentation requirements for a large number of hunters. No changes were made as a result of the comments.
The department received 227 comments supporting adoption of the proposed amendment.
The Texas Wildlife Association commented in support of adoption of the proposed amendment.
The department received 135 comments opposing adoption of the amendment to §65.11, which eliminated the minimum draw weight for lawful archery equipment. Seventy-seven commenters stated a rationale or explanation for opposing adoption of the proposed amendment. Those comments, accompanied by the agency's response, are as follows.
Seventy-seven commenters opposed adoption and stated that the elimination of the minimum draw weight would result in increased wounding loss of game animals. The department disagrees with the comments and responds that predictions of greater wounding loss are based on the assumption that hunters who currently shoot bows at the current minimum draw weight will opt to shoot at lower draw weights or that large numbers of new archers will begin hunting. The intent of the department in eliminating the minimum draw weight is to make archery hunting more accessible to persons for whom a 40-pound bow is difficult or impossible to draw. The number of people expected to participate in archery hunting as a result of the rule is small. The department believes that current archers will continue to tune their equipment to accomplish immediate lethality, and that newcomers to the sport will use archery equipment in an effective manner.
The Lone Star Bowhunters Association commented against adoption of the proposed amendment.
The department received 183 comments supporting adoption of the proposed amendment.
The Texas Wildlife Association commented in support of adoption of the proposed amendment.
The department received 17 comments opposing adoption of the amendment to §65.42 establishing a nine-day mule deer season in Gaines, Martin, and Andrews counties. Eleven commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
Two commenters opposed adoption and stated that mule deer hunting in Gaines, Martin, and Andrews counties should be by drawn permit. The department disagrees with the comments and responds that permit systems are appropriate for placing absolute limits on harvest of species that for whatever reason are sensitive to hunting pressure. The department believes that mule deer populations in the affected counties should be able to withstand hunting pressure because the harvest is restricted to bucks only. No changes were made as a result of the comments.
One commenter opposed adoption and stated that there are not enough deer in Gaines, Martin, and Andrews counties to justify an open season. The department disagrees with the comment and responds that information available to the department indicates the existence of a stable and huntable population in the affected counties. By restricting the harvest to bucks only and the season length to nine days, the department believes that the mule deer population in the affected counties will not be reduced below its immediate recuperative potential. No changes were made as a result of the comment.
One commenter opposed adoption and stated that opening a deer season would result in less land available for quail hunting. The department disagrees with the comment and responds that the decision to provide hunting access rests entirely with landowners. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the deer herds in Gaines, Martin, and Andrews counties should be allowed to increase in size before they are hunted. The department disagrees with the comment and responds that mule deer populations in the affected counties are at or near the maximum carrying capacity of the existing habitat and will not increase to a statistically significant extent, regardless of the presence or absence of hunting pressure. No changes were made as a result of the comment.
One commenter opposed adoption and stated that harvest should be restricted to older bucks. The department disagrees with the comment and responds that age restrictions would be inappropriate, given the large average tract size and typically light hunting pressure in the affected areas. No changes were made as a result of the comments.
One commenter opposed adoption and stated that poaching would increase if a season were opened. The department disagrees with the comment and responds that poaching activity is not related to the presence or absence of an open season in a given county. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that the department should provide links to scientific references used to justify the proposal. The department agrees with the comment and responds the information used to develop the proposal is available upon request, and that department biologists are available and willing to discuss the rationale and justification for regulatory proposals with any interested party. The scientific basis for the proposal was stated in the preamble to the proposed rule, namely, that by limiting the harvest only to bucks, there will be little impact on population expansion, regardless of current population size. No changes were made as a result of the comment.
One commenter opposed adoption and stated that an open season would cause economic problems for agriculture. The department disagrees with the comment and responds that open seasons are and have been provided throughout the state for various species of birds and animals and the department is unaware of any resulting conflicts with agriculture. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there is not an overpopulation of deer in the affected counties. The department agrees with the comment. No changes were made as a result of the comment.
The department received 191 comments supporting adoption of the proposed amendment.
The Texas Wildlife Association commented in support of adoption of the proposed amendment.
The department received 13 comments opposing adoption of the amendment to §65.42 establishing a 16-day mule deer season in Sherman and Hansford counties. Five commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
One commenter opposed adoption and stated that hunting should be by permit only in Sherman and Hansford counties. The department disagrees with the comment and responds that permit systems are appropriate for placing absolute limits on harvest of species that for whatever reason are sensitive to hunting pressure. The department believes that mule deer populations in the affected counties should be able to withstand hunting pressure because the harvest is restricted to bucks only. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that the deer herds in Sherman and Hansford counties should be allowed to increase in size before they are hunted. The department disagrees with the comments and responds that mule deer populations in the affected counties are at or near the maximum carrying capacity of the existing habitat and will not increase to a statistically significant extent, regardless of the presence or absence of hunting pressure. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that the department should provide links to scientific references used to justify the proposal. The department disagrees with the comments and responds the information used to develop the proposal is available upon request, and that department biologists are available and willing to discuss the rationale and justification for regulatory proposals with any interested party. The scientific basis for the proposal was stated in the preamble to the proposed rule, namely, that by limiting the harvest only to bucks, there will be little impact on population expansion, regardless of current population size. No changes were made as a result of the comments.
The department received 172 comments supporting adoption of the proposed amendment.
The Texas Wildlife Association commented in support of adoption of the proposed amendment.
The department received 2,753 comments supporting adoption of the portion of the proposed amendment to §65.72 that affects menhaden. Some of the commenters may have commented multiple times. The following organizations commented in support of the rule: Coastal Conservation Association; National Coalition for Marine Conservation; and one letter signed by the American Littoral Society Southeast Chapter, American Sportfishing Association, Bayou Preservation Association, Cos Bait and Tackle, Environment Texas, Fishntexas.com, Fulton Harbor Baits and Seafood, Galveston Bay Foundation, Greenpeace USA, Gulf Restoration Network, Houston Underwater Club, International Game Fish Association, Lazy Pelican, Marine Fish Conservation Network, National Coalition for Marine Conservation, Pelican Bait, Recreational Fishing Alliance, Saltgrass Bait and Tackle, Sea Gun Bait Stand, Lone Star Chapter Sierra Club, Tucker and Sons Bait and Tackle, TXRodNGun.com, and Uncle Buck's Bait Shop.
The Gulf States Marine Fisheries Commission (GSMFC) commented on the proposal on behalf of its Menhaden Advisory Committee. The GSMFC stated that the "proposed action is in accordance with the management recommendations in the GSMFC's Gulf Menhaden Fishery Management Plan." GSMFC stated, "We respect and applaud the [department's] proactive interest in the Gulf menhaden fishery." GSFMC asked several questions: (1) "Does the [department] have any data indicating a need for the proposed 'cap' at this time?" The department responds that the data on which this rule is based are discussed elsewhere in this preamble. (2) "How does [the department] proposed to administer the 'cap'?" The department responds that the Captain's Daily Fishing Reports (CDFR) which is the current report that industry has provided to NMFS will be used as the tracking mechanism or another report created by TPWD will be used. (3) "How will the 'cap' be monitored and by whom?" The department responds that the cap will be monitored by TPWD. TPWD will obtain the CDFR from NMFS or the industry participants as they submit the report to NMFS as the end of each week. Landings will be monitored and tracked weekly and the department will notify the industry participants as they near the allowable annual limit. (4) "What actions will be taken should the 'cap' be exceeded in any year?" The department responds that the proposal has been modified to allow some flexibility in the cap, and an exceedance of the baseline in a given year will reduce the annual limit in the following year. In addition if there are landings which exceed the allowable annual limit which is calculated each year and the 10% tolerance then the vessel(s) will be in violation.
The department received 319 comments opposing adoption of the amendment. As with the supporting comments some of the commenters opposing the rule may have presented testimony multiple times. For example, Omega Protein provided written correspondence as well as public testimony and each is counted here as a separate comment. The department received comments in opposition to the rule from Americans for Prosperity and Omega Protein Inc. The letter from Omega Protein Inc. included a report from Ocean Associates Inc. in support of the Omega Protein Inc. comment.
Thirty-nine comments disagreed with the proposal on the basis that it is not restrictive enough. These comments advocated a complete closure of the Texas Territorial Sea (TTS) to commercial menhaden fishing. The department disagrees with these comments. Establishing a flexible annual limit for the TTS provides a reasonable approach to ensure that further expansion of the menhaden fishery does not occur in Texas waters. This is an appropriate, measured response to the information concerning increased fishing mortality and reduced recruitment as indicated in the stock assessment.
The department received a letter containing three comments, signed by multiple entities at the final public hearing in Austin, Texas, which called for the rule to require the industry to fund an observer program. These observers would go out on the menhaden boats to assure that the industry does not exceed the annual limits and to monitor bycatch. The department disagrees with these comments. Establishing a flexible annual limit for the TTS provides a reasonable approach to ensure that further expansion of the menhaden fishery does not occur in Texas waters. This is an appropriate, measured response to the information concerning increased fishing mortality and reduced recruitment as indicated in the stock assessment. Future observer programs for real time quota monitoring and for continued monitoring of bycatch may be warranted in the future but are not needed at the present time.
The department agrees in part with the comments from Omega Protein Inc. that harvests can be somewhat increased in years of high abundance without threatening the long-term health of menhaden populations. Thus, the department has modified the rule from the proposal to allow for an increase over the baseline limit in a given year, which must be offset by a corresponding reduction in the following year.
The department received 248 comments opposing the adoption of the proposed rules on the basis that the rule was arbitrary. The department disagrees with the comment. "Arbitrary" has been defined as "existing or coming about seemingly at random or by chance". In that sense, the baseline limit of 31,500,000 pounds is certainly not arbitrary. That figure is based on the average catch over five recent years of landings (2002 - 2006). By choosing that figure, the department aims to allow the industry to continue near the current level. This level has not, to the department's present knowledge, threatened the sustainability of the fishery. Accordingly, the baseline limit of 31,500,000 pounds is based on data, industry needs, and fishery sustainability, not a random choice. This choice reflects a decision by the department that the sustainability of both the menhaden population and the industry can be achieved by maintaining the fishery at this level. The department believes this level will work for the industry because the industry has remained in business at this level.
The comments by Americans for Prosperity and two other commenters assert that the rules are unnecessary and that federal regulations govern the industry. Two of these comments go on to reference the 2007 stock assessment (Vaughn et al. (2007) Fisheries Research 83: 263-275) and they say this document indicates the fishery is healthy and thus the regulations are unnecessary. The department disagrees with these comments. While this fishery has cooperatively reported landings to the National Marine Fisheries Service the fishery occurs largely in state waters. The TPWC has authority to regulate this fishery and this rule places a flexible harvest cap on an important forage and commercial species in Texas waters. This fishery is a key component of the gulf ecosystem and this rule seeks to curb future expansion of this fishery. The cap established still allows commercial harvest at recent levels while ensuring that the fishery will not expand in the future. The TPWC clearly has the authority to establish the flexible cap for Texas waters and there is no federal jurisdiction which has already or which would have authority to establish such a flexible cap.
Omega Protein Inc.'s comment acknowledges that current Texas law and regulation would not prevent "a significant expansion of menhaden fishing effort in Texas state waters". The department agrees with this comment. Omega Protein's proposed response to the department's concern is to work with the TPW Commission and the legislature to develop a limited-entry program for licensees. All other commercial saltwater fisheries in Texas currently operate under limited-entry programs (crabs, shrimp, oysters, and commercial finfish such as black drum and southern flounder), so the department agrees that limited entry is a very useful tool for managing commercial fisheries. Current law, however, does not allow the department to establish a limited-entry program for commercial menhaden fishing, and the department has no ability to ensure when, if ever, such authority will be granted by law. Accordingly, the department disagrees with Omega Protein's proposal to await legislative action. Under current law, establishment of a flexible annual limit is an available management tool that will address the department's concerns about expansion of the fishery and bycatch. Moreover, in those fisheries that operate under limited entry programs, bag limits are often used in combination with limited entry to manage a fishery, reflecting the department's view that fishery management is often best achieved through complementary management methods rather than an either/or choice of management tools.
Omega Protein's comment also states that the rule is a unilateral action by the TPWC and accordingly violates Article I of the Gulf States Marine Fisheries Compact. The department disagrees with this comment. Article I of Texas Parks and Wildlife Code, §91.008, which incorporates the Gulf States Marine Fisheries Compact, confirms the primacy of state jurisdiction over fisheries in their coastal waters. Article I begins: "Whereas the Gulf Coast States have the proprietary interest in and jurisdiction over fisheries in the waters within their respective boundaries. . .". Clearly, the Gulf States Marine Fisheries Compact recognizes that each state has jurisdiction over the fisheries within its boundaries. Article IX of the Compact reaffirms the authority of Texas to impose the conservation measures it considers necessary: "Nothing in this compact shall be construed to limit the powers of the proprietary interest of any signatory State, or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by a signatory State, imposing additional conditions and restrictions to conserve its fisheries." The Compact does not limit the authority of any signatory state to impose additional restrictions to conserve its fisheries. The flexible annual limit for menhaden established by the rule is an additional restriction that the TPWC has determined to be necessary to conserve the menhaden fishery.
Omega Protein's comment claims that the bycatch numbers are overstated and offers support from Ocean Associates, Inc. The department disagrees with this comment. Several studies have documented the bycatch in this fishery. The most recent study (Condrey 1994) found that bycatch was 1.2% by weight and 1.0% by number. These numbers were apparently reversed in subsequent reporting of this study in the Gulf States Marine Fisheries Commission Regional Management Plan: The Menhaden Fishery of the Gulf of Mexico, United States 99: 2002, page 6-18. The department has relied on the bycatch percentages from the Condrey report to determine the number and weight of bycatch in the purse seine fishery off of Texas. The bycatch percentages by weight and number in the Condrey study are within the range of bycatch figures from previous studies. Guillory and Hutton (1982) documented bycatch of 2.68% by number and 2.35% by weight. Previous studies dating back to the 1950's show a range of 0.05% to 3.90% by number and 1.59% to 2.80% by weight. The department believes that the Condrey study is reliable because it is the most recent, although other studies are available to show both greater and lesser bycatch figures.
Omega Protein's comment questions whether the Condrey study represents the conditions in the Texas fishery. The department believes that the Condrey study is the best information available to represent the Texas fishery. The Condrey study is the latest study and all of the previous studies appear to fall within a fairly consistent range in measuring the overall percent of bycatch by both weight and number. Thus the department disagrees that the values from the Condrey study should not be used for the waters off of Texas.
In addition, the Omega Protein Inc. comment refers to a recent estimate of bycatch of large coastal sharks, such as bull sharks and tiger sharks, of 20,200 sharks caught from the entire gulf. On this basis, Omega Protein asserts that the TPWD estimate of bycatch is too great. The department disagrees with this comment. The department used the most recent study, and the estimate relied on by Omega Protein appears to have omitted the bycatch of shark species from the small coastal shark complex, such as Atlantic sharpnose, finetooth, blacknose and bonnethead sharks.
Omega Protein's comment states that the current take of menhaden in the Gulf and Texas has no impact on recreational fisheries or has a positive impact by removing competing predators. The department does not agree that unlimited take of menhaden would have no impact on recreational fisheries or would have a beneficial impact on recreational fisheries. The rule would prevent significant expansion of the fishery in Texas waters, thus maintaining the current ecosystem balance. Considering the important role that menhaden is known to occupy in the marine ecosystem, the department believes that depletion or collapse of this fishery would be detrimental to the Gulf ecosystem. Loss of forage fish abundance has been associated with declines in health and abundance of striped bass in Chesapeake Bay (J. H. Uphoff, Fisheries Management and Ecology (2003) 10: 313-322).
Omega Protein's comment states that catching menhaden does not increase chances of algae blooms or red tide. The department has not asserted that the rule is justified by considerations related to algae blooms or red tide.
Omega Protein's comment states that unilateral action by Texas could encourage other states to take action as well. TPWD disagrees with the comment. The rule does not change the legal relationships between Texas and other signatories to the Gulf States Marine Fisheries Compact, or affect the ability of those states to manage their fisheries. Clearly, the Gulf States Marine Fisheries Compact recognizes that each state has jurisdiction over the fisheries within its boundaries. Article IX of the Compact provides: "Nothing in this compact shall be construed to limit the powers of the proprietary interest of any signatory State, or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by a signatory State, imposing additional conditions and restrictions to conserve its fisheries."
Omega Protein's comment stated that the proposed rule would suppress catches in years of high abundance. The department agrees with this comment in part, and has accordingly changed the proposed rule to allow some flexibility in the annual catch limit. The department disagrees with this comment to the extent that it advocates no catch limit whatsoever. The goal of managing Texas fisheries is to manage fisheries at a level that is sustainable including all sources of mortality that may be occurring. This includes natural mortality and any direct or indirect (bycatch) fishing mortality that may be occurring. In general, the goal is to manage a fishery for maximum economic yield (MEY). This yield is typically below the yield which would be considered the maximum sustainable yield (MSY). Optimum yield for other Texas fisheries, such as shrimp, is defined as the level of catch that the fishery will produce on a continuing basis to achieve the maximum economic benefits (MEY) to the industry and the State as modified by any relevant social or ecological factors (Texas Shrimp Fishery Management Plan, 1989, Source Document, p. 3). The National Research Council's Committee on Ecosystem Effects of Fishing, Phase II (NRC 2006) report concluded that if the United States is to manage fisheries within an ecosystem context, food web interactions, life-history strategies, and trophic effects will need to be explicitly accounted for when developing fishery harvest strategies. Moreover, a more precautionary approach to forage fish management is needed to provide buffers against multiple sources of uncertainty in the scientific advice and ensure the integrity of the marine food web is not compromised by excessive removals of these key species. In response to the NRC report, a group of 91 marine scientists recommended that such an approach should be guided by the following general principles: (1) forage fish play a critical ecological role; (2) there is uncertainty involved in measuring the impacts of forage fish fisheries; (3) MSY is not an appropriate basis for setting catch levels of forage fish; and (4) managing forage fish requires more conservative standards than MSY.
While the available scientific evidence does not indicate that menhaden is currently overfished, there are reasons for concern and therefore for assuring that the industry does not significantly expand in Texas waters. The stock assessment published by Vaughn et al. (2007) (Fisheries Research 83: 263-275) clearly indicates that the stock is below the ideal level. Moreover, the stock assessment cautions that the menhaden stock may experience increased susceptibility due to the hypoxic zone. The hypoxic zone is an area off the Louisiana and Texas coast that exhibits low dissolved oxygen in bottom waters. The assessment indicated that the gulf menhaden probably migrate from areas of low dissolved oxygen, as suggested by the poor or zero catches of central Louisiana when the dead zone impinges close to the shoreline. This displacement is likely to concentrate menhaden schools into narrow coastal corridors making them more susceptible to exploitation. The stock assessment found a recent rise in fishing mortality (a measurement of the rate of removal of fish from a population by fishing) in the menhaden stock. The stock assessment further concludes that a rise in fishing mortality and a decrease in landings is consistent with a decrease in abundance. The stock assessment indicates if this is true, the increased susceptibility, along with decreased recruitment, could account for the recent rise in fishing mortality. It goes on to explain that the rise in fishing mortality is consistent with a decrease in abundance which follows declining recruitment.
Omega Protein's comment also says that there is not any possibility of expansion of the gulf fleet. The department disagrees with this comment. There is nothing currently that prohibits further expansion by the current industry members or by someone who would like to start new in this fishery.
Lastly, the comment suggests that the rule is based on a book by an English professor. The department has not asserted that a book by an English professor is a justification for the rule as proposed. The rule relies on the most recent stock assessment; TPWD data; The Menhaden Fishery of the Gulf of Mexico, United States: A Regional Management Plan (2002), Number 99 produced by the Gulf States Marine Fisheries Commission; and other relevant literature as discussed elsewhere in this preamble.
Compared to the alternative proposals considered and rejected, the adopted rules will result in the best combination of effectiveness in obtaining the desired results and of economic costs not materially greater than the costs of any alternative regulatory method considered. In making its final regulatory decision, the department has assessed all information submitted to it, whether quantitative or qualitative, consistent with generally accepted scientific standards; actual data where possible; and assumptions that reflect actual impacts that the regulation is likely to impose.
The department received 217 comments opposing adoption of the portion of the proposed amendment to §65.72 that established a minimum length limit for common carp on Lady Bird Lake. Sixty-three commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
Forty-nine commenters opposed adoption and stated that there should be no protection of any kind for carp because carp is an invasive exotic species that competes with native fish. The department agrees that carp are an invasive species but disagrees that the amendment has any negative biological impact on freshwater ecosystems. Common carp were introduced into Texas as early as 1879. Most biologists now consider common carp a "naturalized" species because it has established viable reproductive populations in most of the freshwater habitats Texas and cannot be eradicated. The amendment as adopted will neither encourage nor discourage population growth. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the department will be encouraged to implement a minimum length limit for carp on additional lakes and water bodies. The department disagrees with the comment and responds that fishing regulations are a function of what is appropriate for individual lakes and water bodies, given the specific biological and recreational realities on a specific lake or water body, and the department makes such decisions accordingly. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that the amendment was the first step in getting game fish status for carp. The department disagrees with the comments sand responds that there are no plans to designate carp as a game fish. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the amendment will result in population growth of carp and harm to native fish species. The department disagrees with the comment and responds that carp are already firmly established in all freshwater habitats in Texas and that the rule as adopted will not encourage population growth. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should not create regulations to encourage trophy management. The department disagrees with the comment and responds that angler preference is a major component in management strategies designed to enhance and improve fishing opportunity. Where appropriate, the department considers such preference as part of the process of developing freshwater fishing regulations.
One commenter opposed adoption and stated that the amendment would allow carp anglers to take rights away from bowfishermen. The department disagrees with the comment and responds that the sole intent of the department in promulgating the rule is to explore the potential of a trophy carp fishery on Lady Bird Lake, where the carp population is well established and there is a demonstrable angler preference for carp. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the amendment would make it difficult for bowfishermen to determine whether a carp was of legal size or not. The department disagrees with the comment and responds that bowfishermen who are unsure of the legality of a given fish have the ability to decide not to take that fish. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that restrictions designed to protect to large fish result in larger populations of smaller fish. The department disagrees with the comments and responds that the intent of the regulation is to protect a very small cohort of the carp population from lethal harvest and that the rule will not result either in a population increase or a shift in the age structure of the current population. No changes were made as a result of the comments.
Five commenters opposed adoption and stated that common carp should be eradicated. The department agrees that exotic species are harmful to native ecosystems but disagrees that it is possible to eradicate carp, which are endemic to and naturalized in every freshwater ecosystem in the state. No changes were made as a result of the comments.
The department received 289 comments supporting adoption of the proposed amendment.
The Carp Anglers Group and the Inland Fisheries Advisory Board commented in support of adoption of the proposed amendment
The Texas Bowfishing Association commented against adoption of the proposed amendment.
The department received 108 comments opposing adoption of the portion of the proposed amendment to §65.72 that restricts anglers on certain community fishing lakes (CFLs) to a maximum of two taking devices. Nineteen commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
One commenter opposed adoption and stated that there should be a 10-hook limit, rather than a limit on taking devices. The department disagrees with the comment and responds that intent of the regulation is to alleviate user conflicts on small impoundments where competition for bank space is significant. The department believes that a 10-hook minimum would not accomplish the intent of the rule as adopted. No changes were made as a result of the comment.
Three commenters opposed adoption and stated that bag limits, rather than device limits, should be used on CFLs. The department disagrees with the comments and responds that the intent of the rule is to provide distribution of opportunity rather than distribution of harvest. No changes were made as a result of the comments.
Four commenters opposed adoption and stated that the device restrictions should only be imposed on the days that CFLs are stocked, since that is when user conflict is problematic. The department disagrees with the comments and responds that user conflicts are most acute when angling activity increases on days that CFLs are stocked, but the problem exists at other times and cannot be predicted, so it is best to have a standard that applies at all times. No changes were made as a result of the comments.
One commenter opposed adoption and stated that there should be no new laws. The department disagrees with the commenter and responds that natural resource systems are dynamic and that regulations are constantly changing in response. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the more devices a person employs, the quicker they reach the daily bag limit and leave. The department disagrees with the comment and responds that there are large groups of people who because of the multiple personal bag limits are able to monopolize bank access. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that the rule should not be applied on CFLs where angling pressure is light. The department disagrees with the comments and responds the rule is more easily and efficiently enforced if it is universal. The department does not have the resources to monitor CFLs to determine the level of angling effort on each. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the rule should allow no more than three devices to be employed. The department disagrees with the comment and responds that the rule restricts persons to no more than two devices because the department wanted to drastically reduce user conflicts cause by competition for bank access, but did not want to discourage anglers by restricting them to one device. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that the rule should allow no more than four devices to be employed. The department disagrees with the comments and responds that the rule restricts persons to no more than two devices because the department wanted to drastically reduce user conflicts cause by competition for bank access, but did not want to discourage anglers by restricting them to one device. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the restriction should apply only to persons using live bait. The department disagrees with the comment and responds that restricting the applicability of the amendment to persons using live bait would allow the use of other types of baits, such as prepared baits, on multiple rods, negating the purpose of the rule, which is to more equitably distribute angling opportunity. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule should not apply on Lake Sheldon in Harris County. The department agrees and responds that the rule does not apply on Lake Sheldon, because state parks lakes such as Lake Sheldon are exempt from the amendment. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the regulation should be expanded to prohibit trotlines and juglines. The department agrees with the comment and responds that current rules restrict means and methods on CFLs to pole-and-line only. No changes were made as a result of the comment.
One commenter opposed adoption and stated that angling with only two poles is boring. The agency disagrees with the comment and responds that the restriction applies only on CFLs. On impoundments larger than 75 acres a person may use as many poles as they wish. No changes were made as a result of the comments.
The department received 390 comments supporting adoption of the amendment.
The department received 74 comments opposing adoption of the portion of the proposed amendment to §65.72 that implemented a 16-inch maximum length limit for largemouth bass and allows the temporary retention of largemouth bass larger than 24 inches on Lake Nacogdoches. Fifteen commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
Two commenters opposed adoption and stated that if smaller bass are not removed, the lake will be dominated by small fish. The department disagrees with the comments and responds that the regulation protects only those fish greater than 16 inches in length, leaving the smaller size fish available for harvest. Although anglers have the choice of whether to retain a fish or not, the department believes that harvest of some of the smaller bass will benefit the bass population by reducing overall abundance and improving the growth of remaining bass. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that Lake Nacogdoches should be a catch-and-release lake. The department disagrees with the comments and responds that it believes that Lake Nacogdoches can become a trophy fishery without limiting harvest to catch-and-release. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the department is too involved in trophy management. The department disagrees and responds that anger surveys have repeatedly and unambiguously shown that users desire the department to manage fisheries to improve the quality of the angling experience. The department believes that lakes that have the potential to become trophy fisheries should be managed with that goal in mind. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the current regulation is adequate. The department disagrees with the comment and responds that the current slot limit does not allow for optimum growth rates in fish that could attain trophy size. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that there should be one length limit for the entire state. The department disagrees with the comments and responds that because of the wide variety of management challenges across the state, a single length limit for the entire state would frustrate the department's ability to tailor management strategies for specific lakes and stream segments. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the current size limit should be retained but the bag limit should be reduced to three fish. The department disagrees with the comment and responds that the intent of the rule as adopted is to promote growth of bass that have trophy potential. Reducing the bag limit would have the effect of causing the population of fish below the maximum size limit to stack up, which limit the growth of larger fish. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there are too many trophy lakes and that a 14-inch minimum length would work better for club tournament fishing. The department disagrees with the comment and responds that the department's management philosophy is oriented towards the satisfying the wide variety of recreational angler desires. The rule as adopted is intended to encourage the growth of high-quality largemouth bass that surveys indicate are preferred by anglers on lakes that demonstrate the potential to become trophy fisheries. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule should allow anglers to retain one fish larger than 16 inches. The department disagrees with the comment and responds that the intent of the rule as adopted is to increase the population of large fish. Allowing the retention of one fish larger than 16", given the high directed fishing effort on Lake Nacogdoches, would at worst defeat the intent of the regulation and at best unnecessarily prolong the attainment of the goal of the rule. No changes were made as a result of the comment.
One commenter opposed adoption and stated that anglers should be allowed to retain fish over 26 inches in length, and another felt that anglers should be able to retain fish larger than 24 inches. The department disagrees with the commenter and responds that allowing the retention of fish 24 inches and larger would defeat the purpose of the rule, which is to protect fish in those size classes. No changes were made as a result of the comment.
One commenter opposed adoption and stated that bass regulations should be the same as crappie regulations. The department disagrees with the comment and responds that crappie and bass are different species with different life histories and management requirements; therefore, they are managed accordingly and the rules reflect that. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there should be a slot limit and a one-fish bag limit for fish over 24 inches. The department disagrees with the comment and responds that slot limits are useful in developing a fishery, but in order to fully explore a lake's potential to be a trophy fishery, the largest fish must be protected. No changes were made as a result of the comments.
One commenter opposed adoption and stated that slot limits should be eliminated. The department agrees with the comment and responds that the rule as adopted removes the slot limit on Lake Nacogdoches.
The department received 305 comments supporting adoption of the proposed amendment.
The department received 55 comments opposing adoption of the portion of the proposed amendment to §65.72 that increases the length limit for largemouth bass temporarily retained for weighing on Lake Raven and Purtis Creek State Park Lake. Eight commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
Three commenters opposed adoption and stated that the state should provide, staff, and maintain scales. The department disagrees with the comments and responds that it is cost-prohibitive for the department to provide, staff, and maintain scales. No changes were made as a result of the comments.
One commenter opposed adoption and stated that there should be one length limit for the entire state. The department disagrees with the comment and responds that because of the wide variety of management challenges across the state, a single length limit for the entire state would frustrate the department's ability to tailor management strategies for specific lakes and stream segments. No changes were made as a result of the comment.
One commenter opposed adoption and stated that anglers should be allowed to retain fish over 26 inches in length. The department disagrees with the commenter and responds that allowing the retention of fish 26 inches and larger on a small reservoir such as Lake Raven or Purtis Creek would quickly lead to the disappearance of that size class. Lakes Raven or Purtis Creek are catch-and-release lakes that cannot withstand heavy directed fishing pressure. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department is too involved in trophy management. The department disagrees and responds that anger surveys have repeatedly and unambiguously shown that users desire the department to manage fisheries to improve the quality of the angling experience. The department believes that lakes that have the potential to become trophy fisheries should be managed with that goal in mind. No changes were made as a result of the comment.
The department received 288 supporting adoption of the proposed amendment.
The department received 79 comments opposing adoption of the portion of the proposed amendment to §65.72 that implements a 14-inch minimum length limit for spotted bass on Lake Texoma. Nine commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
One commenter opposed adoption and stated that fishermen cannot differentiate spotted bass from largemouth bass and that removing the standardized length will cause problems. The department disagrees with the commenter and responds that prior to this rulemaking Lake Texoma was the only reservoir in the state that imposed a length limit on spotted bass. Therefore, Lake Texoma regulations are now identical to the rest of the state and there should be little to no confusion, since there is no length limit. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule should not be adopted until a similar rule has been adopted by Oklahoma. The department disagrees with the comment and responds that Oklahoma has adopted an identical regulation. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the minimum length limit should not be eliminated. The department disagrees with the comment and responds that the only reason for the 14-inch limit was to be consistent with regulations in Oklahoma. This is the only reservoir in the state that has a length limit for spotted bass. Removing the length limit is not expected to result in any appreciable changes to populations or average size. No changes were made as a result of the comment.
One commenter opposed adoption and stated that elimination of the length limit will result in population declines because people will keep everything they catch. The department disagrees with the comment and responds that the five-fish bag limit assures the stability of the population given current angling pressure. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule will result in the proliferation of smaller fish and that what is needed is a regulation that would protect larger fish. The department disagrees with the commenter and responds that most spotted bass population are dominated by smaller fish, and the daily bag limit of five fish will protect the population from overharvest.
Three commenters opposed adoption and stated that the 14-inch length limit should be retained. The department disagrees with the comments and responds that most smallmouth bass populations such as in Lake Texoma are dominated by fish below the 14-inch limit. The daily bag limit of five fish will protect the population from overharvest.
One commenter opposed adoption and stated that there will be too much confusion with Oklahoma's spotted bass regulations. The department disagrees with the comment and responds that Oklahoma's regulations and those in Texas are the same, alleviating a source of possible angler confusion.
The department received 280 comments supporting adoption of the proposed amendment.
The department received 21 comments opposing adoption of the portion of the proposed amendment to §65.72 that removed the exception to the standard bag and possession limits for red drum on lakes Nasworthy and Colorado City. One commenter stated a specific reason or rationale for opposing adoption. The commenter stated that discontinuing the stocking program would be detrimental to the overall health of freshwater red drum populations. The department disagrees with the comment and responds that stocking operations have ceased because the conditions necessary for the survival of red drum in no longer exist on either lake. No changes were made as a result of the comment.
The department received 243 comments supporting adoption of the proposed amendment.
The department received 333 comments opposing adoption of the amendment to §65.72(b)(5)(F) that would have allowed the take of catfish by lawful archery equipment until August 31, 2011. Fifteen commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
Two commenters opposed adoption and stated that use of archery equipment for the take of catfish was dangerous. The department disagrees with the comment and responds that archery equipment is already a lawful means of taking nongame fish and is not believed to be dangerous when employed in a conscientious manner.
One commenter opposed adoption and stated that game fish should not be taken by means of archery equipment because the lethality of the means prevents the return of undersized fish, which is especially undesirable for game fish. The department agrees with the comment and has made changes accordingly.
Three commenters opposed adoption and stated that it should be lawful to take any game fish by means of archery equipment. The department disagrees with the comments and responds that angler preference and the traditional policy of the department has been for game species to be taken by nonlethal methods so that undersize or undesired fish can be released. No changes were made as a result of the comment.
One commenter opposed adoption and stated that archery equipment should be lawful only for the take of invasive species. The department disagrees with the commenter and states that it would be very difficult for anglers to differentiate invasive species from native species with certainty. No changes were made as a result of the comments.
Seven commenters opposed adoption and stated that archery equipment should be lawful only for the take of nongame species. The department agrees with the comment and has made changes accordingly.
One commenter opposed adoption and stated that catfish should be managed as a game fish. The department agrees with the comment and responds that catfish are a game fish and are managed as a game fish. No changes were made as a result of the comment.
The department received 322 comments supporting adoption of the proposed amendment.
DIVISION 1. GENERAL PROVISIONS
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life ay be hunted, taken, or possessed; and Chapter 67, which authorizes the commission by regulation to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §1.012, which authorizes the department to protect the fish in public waters under rules as it may prescribe.
§65.9.Open Seasons; General Rules.
(a) Except as provided under Parks and Wildlife Code, §62.003, no person may hunt a wild animal or bird when the person is on a public road or right-of-way.
(b) No antlerless deer permit is required to take an antlerless deer during the archery-only open season, except on lands for which Managed Lands Deer permits have been issued.
(c) The hunting of roosting turkey is unlawful.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2008.
TRD-200804274
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 31, 2008
Proposal publication date: February 22, 2008
For further information, please call: (512) 389-4775
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life ay be hunted, taken, or possessed; and Chapter 67, which authorizes the commission by regulation to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §1.012, which authorizes the department to protect the fish in public waters under rules as it may prescribe.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2008.
TRD-200804275
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 31, 2008
Proposal publication date: February 22, 2008
For further information, please call: (512) 389-4775
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life ay be hunted, taken, or possessed; and Chapter 67, which authorizes the commission by regulation to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §1.012, which authorizes the department to protect the fish in public waters under rules as it may prescribe.
§65.72.Fish.
(a) General rules.
(1) There are no public waters closed to the taking and retaining of fish, except as provided in this subchapter.
(2) Game fish may be taken only by pole and line, except as provided in this subchapter.
(3) The bag and possession limits of this subchapter do not apply to the possession or landing of fish lawfully raised under an offshore aquaculture permit issued under Chapter 57, Subchapter C of this title (relating to Introduction of Fish, Shellfish, and Aquatic Plants).
(4) It is unlawful:
(A) to take or attempt to take, or possess fish within a protected length limit, in greater numbers, by other means, or at any time or place, other than as permitted under this subchapter;
(B) while fishing on or in public waters to have in possession fish in excess of the daily bag limit or fish within a protected length limit as established for those waters;
(C) to land by boat or person any fish within a protected length limit, or in excess of the daily bag limit or possession limit established for those fish;
(D) to use game fish or any part thereof as bait, except for processed catfish heads used as crab-trap bait by a licensed crab fisherman, provided the catfish is obtained from an aquaculture facility permitted to operate in the United States. A person who uses catfish as bait under this subparagraph shall, upon the request of a department employee acting within the scope of official duties, furnish appropriate authenticating documentation, such as a bill of sale or receipt, to prove that the catfish was obtained from a legal source.
(E) to possess a finfish of any species, except broadbill swordfish, shark or king mackerel, taken from public water that has the head or tail removed until such person finally lands the catch on the mainland, a peninsula, or barrier island not including jetties or piers and does not transport the catch by boat;
(F) to use any vessel to harass fish; or
(G) to release into the public waters of this state a fish with a device or substance implanted or attached that is designed, constructed or adapted to produce an audible, visual, or electronic signal used to monitor, track, follow, or in any manner aid in the location of the released fish.
(5) Finfish tags: Prohibited Acts.
(A) No person may purchase or use more finfish (red drum) tags during a license year than the number and type authorized by the commission, excluding duplicate tags issued under Parks and Wildlife Code, §46.006.
(B) It is unlawful to:
(i) use the same finfish tag for the purpose of tagging more than one finfish;
(ii) use a finfish tag in the name of another person;
(iii) use a tag on a finfish for which another tag is specifically required;
(iv) catch and retain a finfish required to be tagged and fail to immediately attach and secure a tag, with the day and month of catch cut out, to the finfish at the narrowest part of the finfish tail, just ahead of the tail fin;
(v) have in possession both a Red Drum Tag and a Duplicate Red Drum Tag issued to the same license or salt water stamp holder;
(vi) have in possession both a Red Drum Tag or a Duplicate Red Drum Tag and a Bonus Red Drum Tag issued to the same license or salt water stamp holder;
(vii) have in possession both an Exempt Red Drum Tag and a Duplicate Exempt Red Drum Tag issued to the same license holder; or
(viii) have in possession both an Exempt Red Drum Tag or a Duplicate Exempt Red Drum Tag and a Bonus Red Drum Tag issued to the same holder.
(6) Commercial fishing seasons.
(A) The commercial seasons for finfish species listed in this paragraph and caught in Texas waters shall run concurrently with commercial seasons established for the same species caught in federal waters of the Exclusive Economic Zone (EEZ).
(B) The commercial fishing season in the EEZ will be set by the National Marine Fisheries Service for:
(i) red snapper under guidelines established by the Fishery Management Plan for Reef Fish Resources for the Gulf of Mexico. No person may land red snapper in Texas for commercial purposes unless that person is in compliance with the provisions of this clause.
(I) Requirement for Individual Fishing Quota (IFQ) vessel endorsement and allocation. No person aboard any vessel shall sell, barter, trade, or exchange red snapper; land or attempt to land red snapper for the purpose of sale, barter, trade, or exchange; or possess red snapper for the purpose of sale, barter, trade, or exchange unless the person possesses a valid federal permit for the harvest of Gulf of Mexico Reef Fish and a valid federal red snapper Individual Fishing Quota (IFQ) vessel endorsement.
(-a-) No person shall harvest or land red snapper for the purpose of sale, barter, trade, or exchange, without holding or being assigned federal IFQ allocation at least equal to the pounds of red snapper landed/docked at a shore side location.
(-b-) At-sea or dockside transfer of red snapper from one vessel to another vessel for the purpose of sale, barter, trade, or exchange, is prohibited.
(-c-) Except as provided in this subparagraph, no person shall purchase, sell, exchange, barter, or attempt to purchase, sell, exchange, or barter any red snapper in excess of any possession limit for which federal commercial license, permit, and appropriate allocation were issued.
(-d-) On the last fishing trip of the year, a vessel may exceed by 10% the remaining IFQ allocation.
(II) Offloading and transfer. During the hours from 6:00 p.m. until 6:00 a.m. (local time), no person shall offload from a vessel or receive from a vessel red snapper harvested for the purpose of sale, barter, trade, or exchange. No person who is in charge of a commercial red snapper fishing vessel shall offload red snapper from the vessel prior to three hours after proper notification is made to National Oceanographic and Atmospheric Administration (NOAA) Fisheries.
(III) Recreational limits. Persons aboard a vessel for which permits indicate both charter vessel/headboat for Gulf reef fish and commercial Gulf reef fish may retain reef fish under the recreational take and possession limits specified in subsection (b) of this section, provided the vessel is operating as a validly licensed charter vessel or headboat with prepaid recreational charter fishermen aboard the vessel.
(IV) VMS requirement. No person shall harvest red snapper for the purpose of sale, barter, trade or exchange, from a vessel unless that vessel is equipped with a fully operational and federally approved Vessel Monitoring System (VMS) device. Approved devices are those devices approved by NOAA Fisheries and operating under the requirements mandated by NOAA Fisheries.
(V) Requirement for IFQ dealer endorsement. In addition to the requirement for a federal dealer permit for Gulf reef fish, a dealer must have a federal Gulf red snapper IFQ dealer endorsement in order to receive Gulf red snapper from a commercial fishing vessel. A person aboard a vessel with a federal Gulf red snapper IFQ vessel endorsement must also have a federal Gulf red snapper IFQ dealer endorsement to sell to anyone other than a permitted dealer.
(VI) Requirement for transaction approval code. The owner or operator of a vessel landing red snapper for the purpose of sale, barter, trade, or exchange is responsible for calling National Marine Fisheries Service (NMFS) Office of Law Enforcement at least 3 hours, but no more than 12 hours, in advance of landing to report the time and location of landing and the name of the IFQ dealer where the red snapper are to be received. Failure to comply with this advance notice of landing requirement will preclude authorization to complete the required NMFS landing transaction report and, thus, will preclude issuance of the required NMFS-issued transaction approval code. Possession of red snapper for the purpose of sale, barter, trade, or exchange, from the time of transfer from a vessel through possession by a dealer is prohibited unless the red snapper are accompanied by a transaction approval code verifying a legal transaction of the amount of red snapper in possession.
(VII) Wholesale dealers. Wholesale dealers are required to comply with the provisions of Parks and Wildlife Code, §66.019, when acquiring, purchasing, possessing, and selling red snapper. Wholesale dealers shall maintain approval codes issued by NOAA Fisheries associated with all transactions of red snapper on purchases and sales on records.
(VIII) Recreational limit. All persons aboard a vessel for which no commercial vessel permit for Gulf reef fish has been issued by the National Marine Fisheries Service under the Federal Fishery Management Plan for the Gulf of Mexico Reef Fish resources are limited to the recreational bag limit specified in subsection (b) of this section for red snapper, and such fish may not be bartered or sold.
(ii) king mackerel under guidelines established by the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; and
(iii) sharks (all species, their hybrids and subspecies) under guidelines established by the Fishery Management Plan for Highly Migratory Species.
(C) When federal and/or state waters are closed, it will be unlawful to:
(i) purchase, barter, trade or sell finfish species listed in this paragraph landed in this state;
(ii) transfer at sea finfish species listed in this paragraph caught or possessed in the waters of this state; and
(iii) possess finfish species listed in this paragraph in excess of the current recreational bag or possession limit in or on the waters of this state.
(7) Menhaden.
(A) The commercial purse seine season for menhaden (Brevoortia patronus) is open beginning on the third Monday in April and will continue until whichever of the following first occurs:
(i) the annual landings limit for the season has been reached; or
(ii) the first day in November.
(B) The starting point (baseline) for calculating the annual landings limit for 2009 is 31,500,000 pounds. In 2010 and subsequent years, the baseline shall be adjusted upwards in the amount by which the actual catch in the previous season fell short of 31,500,000 pounds; however, the upward adjustment allowed under this subparagraph shall not exceed 3,150,000 pounds. In the event the actual catch in a season exceeds 31,500,000 pounds, a downward adjustment shall be made in the following season in the amount by which the baseline was exceeded in the previous season.
(C) Annual landings may exceed the amount established or calculated in subparagraph (B) of this paragraph by up to 10%.
(D) Landings will be tracked using the Captain Daily Fishing Reports or another tracking mechanism specified by TPWD.
(8) In Brewster, Crane, Crockett, Culberson, Ector, El Paso, Jeff Davis, Hudspeth, Kinney, Loving, Pecos, Presidio, Reeves, Terrell, Upton, Val Verde, Ward, and Winkler counties, the only fishes that may be used or possessed for bait while fishing are common carp, fathead minnows, gizzard and threadfin shad, sunfish (Lepomis), goldfish, golden shiners, Mexican tetra, Rio Grande cichlid, and silversides (Atherinidae family).
(b) Bag, possession, and length limits.
(1) The possession limit does not apply to fish in the possession of or stored by a person who has an invoice or sales ticket showing the name and address of the seller, number of fish by species, date of the sale, and other information required on a sales ticket or invoice.
(2) There are no bag, possession, or length limits on game or non-game fish, except as provided in these rules.
(A) Possession limits are twice the daily bag limit on game and non-game fish except as provided in these rules.
(B) For flounder, the possession limit is the daily bag limit.
(C) Except as provided in subparagraph (D) of this paragraph, the statewide daily bag and length limits shall be as follows.
Figure: 31 TAC §65.72(b)(2)(C) (No change.)
(D) Exceptions to statewide daily bag, possession, and length limits shall be as follows:
(i) Freshwater species.
Figure: 31 TAC §65.72(b)(2)(D)(i)
(ii) Saltwater species.
Figure: 31 TAC §65.72(b)(2)(D)(ii) (No change.)
(iii) Bag and possession limits for black drum and sheepshead do not apply to the holder of a valid Commercial Finfish Fisherman's License.
(iv) Fish caught in federal waters in compliance with a federal fishery management plan may be landed in Texas.
(v) The bag limit for a guided fishing party is equal to the total number of persons in the boat licensed to fish or otherwise exempt from holding a license minus each fishing guide and fishing guide deckhand multiplied by the bag limit for each species harvested.
(c) Devices, means and methods.
(1) In fresh water only, it is unlawful to fish with more than 100 hooks on all devices combined.
(2) Game and non-game fish may be taken by pole and line only in:
(A) community fishing lakes; however, on community fishing lakes that are not within or part of a state park, no person may employ more than two devices (i.e., poles or lines) at the same time;
(B) sections of rivers lying totally within the boundaries of state parks;
(C) Lake Pflugerville (Travis County);
(D) the North Concho River (Tom Green County) from O.C. Fisher Dam to Bell Street Dam; and
(E) the South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam.
(3) It is unlawful to take, attempt to take, or possess fish caught in public waters of this state by any device, means, or method other than as authorized in this subsection.
(4) In salt water only, it is unlawful to fish with any device that is marked with a buoy made of a plastic bottle(s) of any color or size.
(5) Device restrictions.
(A) Cast net. It is unlawful to use a cast net exceeding 14 feet in diameter.
(i) Only non-game fish may be taken with a cast net.
(ii) In salt water, non-game fish may be taken for bait purposes only.
(B) Dip net.
(i) It is unlawful to use a dip net except:
(I) to aid in the landing of fish caught on other legal devices; and
(II) to take non-game fish.
(ii) In salt water, non-game fish may be taken for bait purposes only.
(C) Gaff.
(i) It is unlawful to use a gaff except to aid in landing fish caught by other legal devices, means or methods.
(ii) Fish landed with a gaff may not be below the minimum, above the maximum, or within a protected length limit.
(D) Gig. Only non-game fish may be taken with a gig.
(E) Jugline. For use in fresh water only. Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a jugline. It is unlawful to use a jugline:
(i) with invalid gear tags. Gear tags must be attached within six inches of the free-floating device, are valid for 30 days after the date set out, and must include the number of the permit to sell non-game fish taken from freshwater, if applicable;
(ii) for commercial purposes that is not marked with an orange free-floating device;
(iii) for non-commercial purposes that is not marked with a white free-floating device;
(iv) in Lake Bastrop in Bastrop County, Bellwood Lake in Smith County, Lake Bryan in Brazos County, Boerne City Park Lake in Kendall County, Lakes Coffee Mill and Davy Crockett in Fannin County, Dixieland Reservoir in Cameron County, Gibbons Creek Reservoir in Grimes County, and Tankersley Reservoir in Titus County.
(F) Lawful archery equipment. Only non-game fish, channel catfish, blue catfish, and flathead catfish may be taken with lawful archery equipment or crossbow. After August 31, 2008, only nongame fish may be taken by means of lawful archery or crossbow.
(G) Minnow trap (fresh water and salt water).
(i) Only non-game fish may be taken with a minnow trap.
(ii) It is unlawful to use a minnow trap that exceeds 24 inches in length or with a throat larger than one by three inches.
(H) Perch traps. For use in salt water only.
(i) Perch traps may be used only for taking non-game fish.
(ii) It is unlawful to fish a perch trap that:
(I) exceeds 18 cubic feet in volume;
(II) is not equipped with a degradable panel. A trap shall be considered to have a degradable panel if one of the following methods is used in construction of the trap:
(-a-) the trap lid tie-down strap is secured to the trap by a loop of untreated jute twine (comparable to Lehigh brand # 530) or sisal twine (comparable to Lehigh brand # 390). The trap lid must be secured so that when the twine degrades, the lid will no longer be securely closed; or
(-b-) the trap lid tie-down strap is secured to the trap by a loop of untreated steel wire with a diameter of no larger than 20 gauge. The trap lid must be secured so that when the wire degrades, the lid will no longer be securely closed; or
(-c-) the trap contains at least one sidewall, not including the bottom panel, with a rectangular opening no smaller than 3 inches by 6 inches. Any obstruction placed in this opening may not be secured in any manner except:
(-1-) it may be laced, sewn, or otherwise obstructed by a single length of untreated jute twine (comparable to Lehigh brand # 530) or sisal twine (comparable to Lehigh brand # 390) knotted only at each end and not tied or looped more than once around a single mesh bar. When the twine degrades, the opening in the sidewall of the trap will no longer be obstructed; or
(-2-) it may be laced, sewn, or otherwise obstructed by a single length of untreated steel wire with a diameter of no larger than 20 gauge. When the wire degrades, the opening in the sidewall of the trap will no longer be obstructed; or
(-3-) the obstruction may be loosely hinged at the bottom of the opening by no more than two untreated steel hog rings and secured at the top of the obstruction in no more than one place by a single length of untreated jute twine (comparable to Lehigh brand # 530), sisal twine (comparable to Lehigh brand # 390), or by a single length of untreated steel wire with a diameter of no larger than 20 gauge. When the twine or wire degrades, the obstruction will hinge downward and the opening in the sidewall of the trap will no longer be obstructed.
(III) that is not marked with a floating visible orange buoy not less than six inches in height and six inches in width. The buoy must have a gear tag attached. Gear tags are valid for 30 days after date set out.
(I) Pole and line.
(i) Game and non-game fish may be taken by pole and line. It is unlawful to take or attempt to take fish with one or more hooks attached to a line or artificial lure used in a manner to foul-hook a fish (snagging or jerking). A fish is foul-hooked when caught by a hook in an area other than the fish's mouth.
(ii) Game and nongame fish may be taken by pole and line. It is unlawful to take fish with a hand-operated device held underwater except that a spear gun and spear may be used to take nongame fish.
(iii) Game and non-game fish may be taken by pole and line, except that in the Guadalupe River in Comal County from the second bridge crossing on River Road upstream to the easternmost bridge crossing on F.M. Road 306, rainbow and brown trout may not be retained when taken by any method except artificial lures. Artificial lures cannot contain or have attached either whole or portions, living or dead, of organisms such as fish, crayfish, insects (grubs, larvae, or adults), or worms, or any other animal or vegetable material, or synthetic scented materials. This does not prohibit the use of artificial lures that contain components of hair or feathers. It is an offense to possess rainbow and brown trout while fishing with any other device in that part of the Guadalupe River defined in this paragraph.
(J) Purse seine (net).
(i) Purse seines may be used only for taking menhaden, only from that portion of the Gulf of Mexico within the jurisdiction of this state extending from one-half mile offshore to nine nautical miles offshore.
(ii) Purse seines used for taking menhaden may not be used within one mile of any jetty or pass.
(iii) The purse seine, not including the bag, shall not be less than three-fourths inch square mesh.
(K) Sail line. For use in salt water only.
(i) Non-game fish, red drum, spotted seatrout, and sharks may be taken with a sail line.
(ii) Line length shall not exceed 1,800 feet from the reel to the sail.
(iii) The sail and most shoreward float must be a highly visible orange or red color. All other floats must be yellow.
(iv) No float on the line may be more than 200 feet from the sail.
(v) A weight of not less than one ounce shall be attached to the line not less than four feet or more than six feet shoreward of the last shoreward float.
(vi) Reflectors of not less than two square inches shall be affixed to the sail and floats and shall be visible from all directions for sail lines operated from 30 minutes after sunset to 30 minutes before sunrise.
(vii) There is no hook spacing requirement for sail lines.
(viii) No more than one sail line may be used per fisherman.
(ix) Sail lines may not be used by the holder of a commercial fishing license.
(x) Sail lines must be attended at all times the line is fishing.
(xi) Sail lines may not have more than 30 hooks and no hook may be placed more than 200 feet from the sail.
(L) Seine.
(i) Only non-game fish may be taken with a seine.
(ii) It is unlawful to use a seine:
(I) which is not manually operated.
(II) with mesh exceeding 1/2-inch square.
(III) that exceeds 20 feet in length.
(iii) In salt water, non-game fish may be taken by seine for bait purposes only.
(M) Shad trawl. For use in fresh water only.
(i) Only non-game fish may be taken with a shad trawl.
(ii) It is unlawful to use a shad trawl longer than six feet or with a mouth larger than 36 inches in diameter.
(iii) A shad trawl may be equipped with a funnel or throat and must be towed by boat or by hand.
(N) Spear. Only non-game fish may be taken with a spear.
(O) Spear gun. Only non-game fish may be taken with spear gun.
(P) Throwline. For use in fresh water only.
(i) Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a throwline.
(ii) It is unlawful to use a throwline in Lake Bastrop in Bastrop County, Bellwood Lake in Smith County, Lake Bryan in Brazos County, Boerne City Park Lake in Kendall County, Lakes Coffee Mill and Davy Crockett in Fannin County, Dixieland Reservoir in Cameron County, Gibbons Creek Reservoir in Grimes County, and Tankersley Reservoir in Titus County.
(Q) Trotline.
(i) Non-game fish, channel catfish, blue catfish, and flathead catfish may be taken by trotline.
(ii) It is unlawful to use a trotline:
(I) with a mainline length exceeding 600 feet;
(II) with invalid gear tags. Gear tags must be attached within three feet of the first hook at each end of the trotline and are valid for 30 days after date set out, except on saltwater trotlines, a gear tag is not required to be dated;
(III) with hook interval less than three horizontal feet;
(IV) with metallic stakes; or
(V) with the main fishing line and attached hooks and stagings above the water's surface.
(iii) In fresh water, it is unlawful to use a trotline:
(I) with more than 50 hooks;
(II) in Gibbons Creek Reservoir in Grimes County, Lake Bastrop in Bastrop County, Lakes Coffee Mill and Davy Crockett in Fannin County, Fayette County Reservoir in Fayette County, Pinkston Reservoir in Shelby County, Lake Bryan in Brazos County, Bellwood Lake in Smith County, Dixieland Reservoir in Cameron County, Boerne City Park Lake in Kendall County, and Tankersley Reservoir in Titus County.
(iv) In salt water:
(I) it is unlawful to use a trotline:
(-a-) in or on the waters of the Gulf of Mexico within the jurisdiction of this state;
(-b-) from which red drum, sharks or spotted seatrout caught on the trotline are retained or possessed;
(-c-) placed closer than 50 feet from any other trotline, or set within 200 feet of the edge of the Intracoastal Waterway or its tributary channels. No trotline may be fished with the main fishing line and attached hooks and stagings above the water's surface;
(-d-) baited with other than natural bait, except sail lines;
(-e-) with hooks other than circle-type hook with point curved in and having a gap (distance from point to shank) of no more than one-half inch, and with the diameter of the circle not less than five-eighths inch. Sail lines are excluded from the restrictions imposed by this clause; or
(-f-) in Aransas County in Little Bay and the water area of Aransas Bay within one-half mile of a line from Hail Point on the Lamar Peninsula, then direct to the eastern end of Goose Island, then along the southern shore of Goose Island, then along the causeway between Lamar Peninsula and Live Oak Peninsula, then along the eastern shoreline of the Live Oak Peninsula past the town of Fulton, past Nine-Mile Point, past the town of Rockport to a point at the east end of Talley Island, including that part of Copano Bay within 1,000 feet of the causeway between Lamar Peninsula and Live Oak Peninsula.
(II) No trotline or trotline components, including lines and hooks, but excluding poles, may be left in or on coastal waters between the hours of 1:00 p.m. on Friday through 1:00 p.m. on Sunday of each week, except that attended sail lines are excluded from the restrictions imposed by this clause. Under the authority of the Texas Parks and Wildlife Code, §66.206(b), in the event small craft advisories or higher marine weather advisories issued by the National Weather Service are in place at 8:00 a.m. on Friday, trotlines may remain in the water until 6:00 p.m. on Friday. If small craft advisories are in place at 1:00 p.m. on Friday, trotlines may remain in the water until Saturday. When small craft advisories are lifted by 8:00 a.m. on Saturday, trotlines must be removed by 1:00 p.m. on Saturday. When small craft advisories are lifted by 1:00 p.m. on Saturday, trotlines must be removed by 6:00 p.m. on Saturday. When small craft advisories or higher marine weather advisories are still in place at 1:00 p.m. on Saturday, trotlines may remain in the water through 1:00 p.m. on Sunday. It is a violation to tend, bait, or harvest fish or any other aquatic life from trotlines during the period that trotline removal requirements are suspended under this provision for adverse weather conditions. For purposes of enforcement, the geographic area customarily covered by marine weather advisories will be delineated by department policy.
(III) It is unlawful to fish for commercial purposes with:
(-a-) more than 20 trotlines at one time;
(-b-) any trotline that is not marked with yellow flagging attached to stakes or with a floating yellow buoy not less than six inches in height, six inches in length, and six inches in width attached to end fixtures;
(-c-) any trotline that is not marked with yellow flagging attached to stakes or with a yellow buoy bearing the commercial finfish fisherman's license plate number in letters of a contrasting color at least two inches high attached to end fixtures;
(-d-) any trotline that is marked with yellow flagging or with a buoy bearing a commercial finfish fisherman's license plate number other than the commercial finfish fisherman's license plate number displayed on the finfish fishing boat;
(IV) It is unlawful to fish for non-commercial purposes with:
(-a-) more than 1 trotline at any time; or
(-b-) any trotline that is not marked with a floating yellow buoy not less than six inches in height, six inches in length, and six inches in width, bearing a two-inch wide stripe of contrasting color, attached to end fixtures.
(R) Umbrella net.
(i) Only non-game fish may be taken with an umbrella net.
(ii) It is unlawful to use an umbrella net with the area within the frame exceeding 16 square feet.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2008.
TRD-200804276
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 31, 2008
Proposal publication date: February 22, 2008
For further information, please call: (512) 389-4775
SUBCHAPTER A. COASTAL PUBLIC LANDS
31 TAC §§155.1 - 155.5, 155.15
The School Land Board (board) adopts amendments to §155.1 relating to General Provisions, §155.2 relating to Leases, §155.3 relating to Easements, §155.4 relating to Permits, §155.5 relating to Registration of Structures and §155.15 relating to Fees. The amendments to §155.1 and §155.15 are adopted with changes to the proposal as published in the June 13, 2008, issue of the Texas Register (33 TexReg 4625) and will be republished. Amendments to §§155.2 - 155.5 are adopted without changes to the proposal as also published in the June 13, 2008, issue of the Texas Register (33 TexReg 4625) and will not be republished.
Amended §155.1 was changed to add a definition for the term boat ramp and to include that term in the definition of watercraft storage facility. The definition for the terms boathouse and boatlift was also changed to clarify that easement holders may not enclose or cover the area above the roof of the boathouse or boatlift, consistent with U.S. Army Corps of Engineers regulations. Amended §155.15 was modified to delete boat ramps from the list of structures covered by the fees found in §155.15(b)(2)(J), to be consistent with current definitions. Amended §155.15(I) was changed so that only a filing fee exists for authorized shoreline stabilization projects, consistent with current state practices. These minor changes are necessary for the efficient and fair administration of the coastal easement program and to clarify the amendments as proposed.
BACKGROUND, REASONED JUSTIFICATION, AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the amendments is to clarify the rules and avoid duplication by deleting provisions that incorporate specific language from applicable statutes or standard contract provisions. The amendments also incorporate statutory changes made during the 80th Legislature by House Bill (HB) 2819 (Acts 2007, 80th Leg., Ch. 1256, eff. Sept. 1, 2007) which amended Texas Natural Resources Code §§33.002, 33.012, 33.063, and 33.102 - 33.105 and repealed §33.014 and §33.110(b). The amendments will enable the GLO to administer the coastal public land program more fairly and efficiently and expand the board's ability to issue coastal easements and leases, consistent with state law.
§155.1. General Provisions.
The amendments to §155.1 (relating to General Provisions) incorporate and amend, as applicable, general policies previously found in §§155.2(c)(5) (relating to Leases), 155.2(c)(7) (relating to Leases), 155.3(d) (relating to Easements), and 155.15(b)(2)(I) (relating to Fees), as these policies are general in nature and apply to Chapter 155 in its entirety. Amendments to these policies incorporate statutory changes made by HB 2819, clarify original language, or change language to conform the policy to Chapter 155 in its entirety. Specifically, the amendments to §155.1(a) include policies restricting rights in the surface estate of coastal public lands from unduly preventing or interfering with the board's management or administration of coastal public lands or the board's authority to grant other rights to coastal public land; authorizing the GLO to inspect any structure located on coastal public land at any time; requiring grantees to provide a coastal boundary survey and field notes in conjunction with shoreline alteration projects, as indicated by Texas Natural Resources Code §33.136; and authorizing the board to waive the requirements of any rule or fee in Chapter 155 if such action would be in the public's best interest, as indicated by Texas Natural Resources Code §32.061 and §32.062.
The amendments to §155.1 add language authorizing the board to grant an interest in coastal public lands for any purpose that the board determines is in the best interest of the state, in accordance with changes made to Texas Natural Resources Code §33.103 by HB 2819. Finally, the amendments to §155.1 expand the definition section by incorporating all applicable definitions previously included in §155.15 (relating to Fees) in order to have one major definition section, which will provide clarity for the public. The amendments also add new definitions for the terms boathouse (which has been modified from the preamble version as described above), boatlift (which has been modified from the preamble version as described above), boat ramp (which has been added since the preamble version as described above), boat-skid, boat slip, coastal natural resource area, dilapidated or derelict structure, personal watercraft, oversized personal watercraft slip, personal watercraft slip, riprap, sewage, watercraft, and watercraft storage facility (which has been modified from the preamble version as described above). Other definitions have been amended to clarify meaning and assist the public in understanding the rules. The amendments also add a new §155.1(f) regarding the requirement of grantees to submit an application to the GLO in order to obtain a lease, easement, or permit for the use of coastal public land, as indicated by Texas Natural Resources Code §33.101 and §33.102. Finally, the amendments incorporate necessary numbering, lettering, and abbreviation changes.
§155.2. Leases.
The amendments to §155.2 (relating to Leases) clarify coastal lease provisions and incorporate a requirement to provide an e-mail address, if available, on a lease application. The amendments also delete provisions that are included as standard provisions in all lease agreements or are more appropriately located in §155.1 (relating to General Provisions). Finally, the amendments incorporate necessary numbering, lettering, and abbreviation changes.
§155.3. Easements.
The amendments to §155.3 (relating to Easements) clarify easement provisions and delete §155.3(d), which is now located in §155.1(f) (relating to General Provisions). This deletion is consistent with current procedures and incorporates amendments made to Texas Natural Resources Code §33.104 by HB 2819. The amendments also add references to watercraft storage facilities in what is now §155.3(f)(4) in order to conform the rules to current board policies. A new §155.3(f)(4)(D) has been added to clarify that a littoral owner of property used for a private residence may, in certain limited instances, construct additional watercraft storage facilities on coastal public land. The amendments delete §§155.3(j)(1) - 155.3(m)(2) because these provisions are standard easement terms in all easements. Finally, the amendments incorporate necessary numbering, lettering, and abbreviation changes.
§155.4. Permits.
The amendments to §155.4 (relating to Permits) clarify provisions related to previously unauthorized structures (cabins) on coastal public land and avoid duplication by deleting provisions that incorporate statutory requirements found in Chapter 33, Texas Natural Resources Code or standard permits conditions. Finally, the amendments incorporate necessary numbering, lettering, and abbreviation changes.
§155.5. Registration of Structures.
The amendments to §155.5 (relating to Registration of Structures) add references to boathouses, boat-skids, boat slips, and personal watercraft slips where applicable in order to clearly define standards that allow for the registration of piers and associated appurtenances. The amendments also incorporate necessary numbering, lettering, and abbreviation changes.
§155.15. Fees.
The amendments to §155.15 (relating to Fees) relocate all applicable definitions from §155.15 to §155.1 (relating to General Provisions) in order to have one comprehensive definition section, which will provide clarity for the public. The amendments delete limitations in §155.15(b)(2)(A) and clarify the board's authority to negotiate fees for coastal leases granted for public purposes in accordance with changes made to Texas Natural Resources Code §33.105 in HB 2819. The amendments also amend §155.15(b)(2)(D) to incorporate fees for additional boatlifts, boathouses, and oversized personal watercraft slips related to a private residence in an effort to provide the public with a more comprehensive fee policy concerning watercraft storage facilities at private residences and to incorporate amendments to new §155.3(f)(4)(D). Although the board has historically reviewed on a case-by-case coastal easements for the construction of additional boatlifts, boathouses, and oversized personal watercraft slips related to a private residence on coastal public land, requests for additional structures have increased dramatically in recent years. The amendments to §155.15(b)(2)(D) will provide clarity for the board and the public regarding the ability of certain grantees to construct additional watercraft storage facilities on coastal public land. Before granting authority beyond what is authorized by new §155.3(f)(4)(C) (relating to Easements), the board may weigh factors such as the location, density, and environmental health of the area, as specified in new §155.3(f)(4)(A) and (B) (relating to Easements). The amendments also delete language in §155.15 relating to the board's authority to reduce or waive fees if such action would be in the best interest of the public, as this provision was amended and relocated in §155.1 (relating to General Provisions), as described above. As noted above, the term boat ramps was deleted from §155.15(b)(4)(J) for consistency with the definitions found in §155.1, and §155.15(b)(4)(I) was changed so that only a filing fee exists for authorized shoreline stabilization projects, consistent with current state practices. The amendments also add a new §155.15(b)(10), which prohibits the board from increasing coastal easement fees related to a private residence when the grantee reaches the age of 65 and applies to the GLO for such a freeze, unless the area of encumbered state land increases or the use of the coastal public land changes. Finally, the amendments incorporate necessary numbering, lettering, and abbreviation changes.
ENVIRONMENTAL REGULATORY ANALYSIS
The board has evaluated the adopted rulemaking action in light of the regulatory analysis requirements of Texas Government Code §2001.0225, and determined that the action is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the statute. "Major environmental rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The amendments to Chapter 155 are not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state because the adopted rulemaking implements legislative requirements in Texas Natural Resources Code §§33.101 - 33.136 relating to the board's ability to grant rights in coastal public land.
CONSISTENCY WITH CMP
The adopted rule amendments are subject to the CMP, 31 TAC §§505.11(a)(1)(E) - (I) and §505.11(c), relating to the Actions and Rules Subject to the CMP. The board has reviewed these actions for consistency with the CMP's goals and policies in accordance with the regulations of the Coastal Coordination Council (Council). The adopted action is consistent with the applicable CMP goals and policies.
PUBLIC COMMENT
The board did not receive any comments on the amendments.
STATUTORY AUTHORITY
The amendments are adopted under the Texas Natural Resources Code §§33.101 - 33.136, relating to the board's ability to grant rights in coastal public land, and Texas Natural Resources Code §33.064, providing that the board may adopt procedural and substantive rules which it considers necessary to administer, implement and enforce Chapter 33, Texas Natural Resources Code.
Texas Natural Resources Code §§33.101 - 33.136 are affected by the adopted amendments.
§155.1.General Provisions.
(a) Policy. The surface estate in the coastal public lands of this state constitutes an important and valuable asset dedicated to the permanent school fund and to all people of Texas. Such estate shall be managed as follows.
(1) The natural resources of the surface estate in coastal public lands shall be preserved. Such resources shall be construed to include the natural aesthetic values of those areas and the value of such areas in their natural state for the protection and nurture of all types of marine life and wildlife.
(2) Uses which the public at large may enjoy and in which they may participate shall take priority over those uses which are limited to fewer individuals.
(3) The public interest in navigation in the intracoastal waters shall be protected.
(4) Unauthorized use of coastal public lands shall be prevented.
(5) Utilization and development of the surface estate in such lands shall not be allowed unless the public interest as expressed in the act is not significantly impaired thereby.
(6) The surface estate in coastal public lands shall not be alienated except by the granting of leaseholds and lesser interests therein.
(7) Vested rights in land shall be protected subject to the paramount authority of the state in the exercise of such rights; and the orderly use of littoral property in a manner consistent with the public policy of this state shall not be impaired.
(8) The economic benefits of leases, easements, and other grants of interests in the surface estate of coastal public lands shall be weighed against the need to protect and preserve the resources of coastal public lands.
(9) Rights to use the surface estate of coastal public lands shall not unduly prevent or interfere in any way with the board's management or administration of coastal public lands or the board's authority to grant other rights to coastal public land.
(10) The General Land Office (GLO), may at any time, inspect any structure located on coastal public land.
(11) If shoreline alteration is proposed, a coastal boundary survey, as defined in Texas Natural Resources Code §33.136, and field notes shall be required.
(12) The board may modify or waive the requirements of any rule or fee set forth herein if such action would be in the public's best interest as determined by the board.
(b) Scope of rules. These rules set forth the practice and procedure for administration by the board in granting a lease, easement, permit, and the registration of a structure on coastal public lands. All grants of interest are subject to these rules and regulations. The board may grant the following interest in coastal public lands for the indicated purposes:
(1) leases for public purposes;
(2) easements for purposes connected with ownership of littoral property:
(3) permits authorizing limited continued use of heretofore unauthorized structures on coastal public lands, not connected with ownership of littoral property;
(4) channel easements to the holder of any surface or mineral interests in coastal public lands, for purposes necessary or appropriate to the use of such interests; and
(5) any other interest in coastal public land for any purpose that the board determines is in the best interest of the state.
(c) If a Department of the Army Corps of Engineers permit is required for a proposed project, the board may postpone a decision on the application pending receipt of comments on the work described in the Corps of Engineers public notice.
(d) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Adjacent littoral property--The property that is contiguous to and borders the coastal public land upon which the property interest is sought.
(2) Alignment Bulkheads--Proposed bulkheads which align with an adjacent, preexisting bulkhead, or bulkheads.
(3) Appraised market value of adjacent littoral property--Fair market value of the unimproved adjacent littoral property as determined by the appropriate tax appraisal district.
(4) Basin--A structure used for a commercial or industrial activity that consists of the area of the land encumbered and any fixtures attached thereto. This definition includes the construction and maintenance of marinas, piers, walkways, docks, dolphins, and wharves and any and all dredged area associated therewith.
(5) Basin formula--The amount of encumbered state land multiplied by the appraised market value of the adjacent littoral property multiplied by the submerged land discount multiplied by the return on investment.
(6) Board--The School Land Board of Texas.
(7) Boathouse--A garage-like enclosed structure built over water for the purpose of storing watercraft. Boathouses are suitable for long-term storage and may contain lifts, winches, or other ancillary docking mechanisms. A boathouse may not include a partially or fully covered or enclosed second story unless it was in existence prior to September 1, 2008
(8) Boatlift--A covered or uncovered boat slip with winch or pulley devices, used for lifting watercraft out of the water; suitable for long-term storage. The covering structure may not enclose the slip. A boatlift may not include a partially or fully covered or enclosed second story unless it was in existence prior to September 1, 2008
(9) Boat ramp--An inclined structure extending from the adjacent property or pier into state owned submerged land for the purpose of launching and retrieving boats. Typically constructed of concrete or wood.
(10) Boat-skid--A ramp-like device, typically using 2 pieces of wood, used to place watercraft in or remove watercraft from the water.
(11) Boat slip--An encumbered area of water (covered or uncovered but not enclosed), formed by adjacent finger piers or pilings, into which a watercraft is moored or stored. Most suitable for short-term storage.
(12) Breakwater--A structure of timber, cement, or other material, either fixed or floating, designed to protect beaches, bay shorelines, and harbor areas from wave action.
(13) Bulkhead--Structures of timber, steel, concrete, rock, or similar substance erected parallel to the shoreline for erosion control purposes.
(14) Coastal area--Refers to the geographic area comprising all the counties of Texas having any tidewater shoreline including that portion of the continental bed and waters of the Gulf of Mexico within the jurisdiction of the State of Texas.
(15) Coastal natural resource area--As defined by Texas Natural Resource Code §33.203(1).
(16) Coastal public lands--All or any portion of the state-owned submerged lands, the waters overlying those lands, and all state-owned islands in coastal area.
(17) Commercial activity--Activity which is designed to enhance or accommodate a venture associated with a revenue generating activity. This definition excludes industrial activity, but includes residential uses if there is revenue generating activity conducted on the premises.
(18) Commissioner--The commissioner of the GLO.
(19) Dilapidated or derelict structure--Any structure which has deteriorated to an unsafe and/or unusable condition due to neglect, misuse, or which has been made inhabitable by vandalism or natural forces, or which or has been abandoned either through neglect or misuse.
(20) Dredged Area--An area that has been made deeper by the removal or relocation of sediments; dredged areas are considered to be structures on state-owned submerged land. When dredged areas are evaluated for permitting purposes, placement of dredged material must be addressed.
(21) Dredged material--The sediments that have been removed from a dredged area; initial dredging of an area often produces usable material and maintenance dredging typically produces unconsolidated material that must dry before possible use.
(22) Dredging--The moving of soil, sand, gravel, shell or other materials from its natural setting, including propwashing, and thereby artificially altering the water depth, e.g., channels, basins, etc.
(23) Encumbered state land--The amount of state coastal public land encumbered by the permitted activity and is expressed in number of square feet.
(24) Evaluation fee--A one-time fee assessed upon the granting of a commercial instrument. In the case of multiple-purpose easement applications, only one evaluation fee will be assessed.
(25) Island--Any body of land surrounded by the waters of a salt water lake, bay, inlet, estuary, or inland body of water within the tidewater limits of this state and shall include man-made islands resulting from dredging of other operations. An island may be coastal public land.
(26) Jetties and groins--Structures of rock, concrete, steel, or other material built perpendicular to the shoreline and are designed to modify or control sediment movement along a shore.
(27) Fill--The placement of materials on coastal public lands for the purpose of changing the elevation of a water body or to create emergent land.
(28) Fill area--A structure, excluding riprap, concrete stairs, breakwaters, jetties, and groins that permanently and fully encumbers, and entirely displaces, the water covering the coastal public land. The construction and maintenance of associated bulkheads is considered part of the fill area.
(29) Fill formula--Encumbered state land multiplied by the appraised market value of adjacent littoral property multiplied by the return on investment.
(30) Homeowners association--An association whose individual members, by virtue of holding full and exclusive title to the adjacent littoral property area specifically defined in an easement application, are entitled, as a group, to the privileges of an easement that may be granted by the State of Texas for use of coastal public land.
(31) Industrial activity--A use of coastal public land which involves one or more of the following:
(A) processing, manufacturing, or handling materials or products predominantly from extracted or raw materials,
(B) storage, manufacturing, or materials handling processes that involve flammable or explosive materials, or
(C) storaging, manufacturing, or materials handling processes that involve hazardous or commonly recognized offensive conditions.
(32) Littoral owner--The owner or leaseholder of any public or private upland bordered by or contiguous to coastal public lands.
(33) Maintenance dredging--Re-dredging an authorized channel to a previously authorized depth. The same limitations and conditions that applied to the initial dredging will apply to the maintenance dredging.
(34) Marina--A combination of docks or piers floating or constructed on pilings, extending onto or over coastal public lands, which is used for purposes of storing or docking boats, watercraft, shrimp boats, and similar structures and is available to the public and charges are made for any of its services, and which do not constitute wharves, docks, or piers as hereinafter defined.
(35) Mineral interest holder--Holder of a state mineral lease who plans to dredge on coastal public land outside the state leasehold tract to obtain access to the state leasehold tract.
(36) Mitigation sequence--The series of steps which must be taken to prevent or reduce impacts to sensitive habitat while planning or evaluating a project.
(37) New dredged area--An excavated area which is not under current permit with the GLO. The new dredged area rate is charged for the first year, and the fee for maintaining the dredged area is charged for each subsequent year of the easement term.
(38) Oversized personal watercraft slip--A personal watercraft slip that exceeds 120 square feet in overall area.
(39) Person--Any individual, firm, partnership, association, corporation (public or private, profit or nonprofit), trust, or political subdivision or agency of the state.
(40) Personal watercraft--A small boat or other craft for water transportation or recreation typically made for use/occupancy by no more than two people at one time.
(41) Personal watercraft slip--A small area designed for the docking and/or storage of personal watercraft; includes boat slips and boat skids; limited to a maximum of 120 square feet.
(42) Pier and dock--Structures of timber or other material built onto or over coastal public lands which are used for fishing and recreational boating purposes.
(43) Private non-profit use--A private activity which does not contemplate the generation of any revenue.
(44) Public activity--Activity which is performed in the public interest, as defined by the board, and is not designed to enhance or accommodate a profit-making venture, nor is it primarily associated with a revenue generating activity.
(45) Public entity--City, county, state agency, board or commission, or any other political subdivision of the state.
(46) Residential use, Category I--One single-family residential structure per defined lot or parcel of land; both land and improvements are typically under the same ownership.
(47) Residential use, Category II--Multi-family residential units per defined lot or parcel of land; land and individual units may be separately owned; includes uses by condominium developments and homeowners associations acting for and on behalf of owners of a multi-family residential development, but does not include time-share developments or any use that includes commercial activities.
(48) Resource Impact Fee--A one-time fee assessed for proposed projects that impact seagrass, emergent marsh, or oyster reef, for which there is no separate mitigation requirement.
(49) Return on investment--A number used in the basin, fill, and industrial activity formulas that reflects a financial return expectation. The return on investment rate will be set annually by the board and will be effective at the beginning of each fiscal year.
(50) Riprap--hard substrate material placed seaward of the shoreline to reduce wave energy.
(51) Seaward--The direction away from the shore and toward the body of water bounded by such shore.
(52) Sensitive habitat--An area of submerged or emergent vegetation or reefs.
(53) Sewage--Refuse liquids or waste (including human waste) matter typically carried off by sewers or stored in septic tanks.
(54) Shoreline stabilization project--Vegetative cover or rip-rap consisting of concrete block, concrete rubble, rock, brick, sack crete or similarly stable material approved by the GLO utilized to control shoreline erosion.
(55) Structure--As defined in the Natural Resources Code, §33.004.
(56) Submerged lands--As defined in Section 33.004, Texas Natural Resources Code.
(57) Submerged land discount--60% discount used in formulas when the easement is commercial, 70% discount used in formulas when the easement is industrial.
(58) Waste and/or garbage--Includes discarded food, refuse, human waste, and unwanted man-made degradable and non-degradable items such as containers, equipment, and other rubbish.
(59) Watercraft--A boat or other craft for water transport or recreation. Included, but not limited to, motorboat, personal watercraft, and sailboat.
(60) Watercraft storage facility--A boathouse, boatlift, boat ramp, boat-skid, boat slip or personal watercraft slip.
(61) Wharf--A structure of timber, cement, masonry, earth, or other material built onto or over coastal public lands, so that vessels can receive and discharge cargo, products, goods, any paying passengers, etc. This definition applies only to structures or portions thereof which are directly connected with and used for the loading and unloading of water borne commerce but specifically excludes such structures used only for commercial fishing purposes.
(e) Consistency with Coastal Management Program. Except as otherwise provided in §16.1(c) of this title (relating to Definitions and Scope), an action listed in §16.1(b) of this title (relating to Definitions and Scope) taken or authorized by the GLO or SLB pursuant to this chapter that may adversely affect a coastal natural resource area, as defined in §16.1 of this title (relating to Definitions and Scope), is subject to and must be consistent with the goals and policies identified in Chapter 16 of this title (relating to Coastal Protection) in addition to any goals, policies, and procedures applicable under this chapter. If the provisions of this chapter conflict with and can not be harmonized with certain provisions of Chapter 16 of this title, such conflicting provisions of Chapter 16 of this title (relating to Coastal Protection) will control.
(f) An applicant desiring a lease, easement, or permit in coastal public land must submit an application to the GLO on forms approved by the GLO not less than 90 days prior to the desired approval date. Applicants should present reasons why the lease, easement, or permit should be granted. The GLO may request any additional information it deems necessary.
§155.15.Fees.
(a) General.
(1) Form of payment. Fees may be paid by cash, check or other legal means acceptable to the commissioner.
(2) Time for payment. Payment is generally required in advance of issuance of permits, leases and other documents and/or delivery of services and/or materials by the General Land Office (GLO).
(3) Dishonor or nonpayment by other means. In the event a fee is not paid due to dishonor, nonpayment, or otherwise, the GLO shall have no further obligation to issue permits, leases and other documents and/or provide services and/or materials to the permittee, lessee, or applicant.
(b) Board fees and charges. The board is authorized and required under the Natural Resources Code, Chapter 33, to collect the fees and charges set forth in this subsection where applicable. The board will charge the following coastal lease and coastal easement fees for use of coastal public land, and will charge the following structure registration and permit fees. The board charge will be based on either the fixed fee schedule or the alternate commercial, industrial, residential, and public formulas as delineated in subparagraphs (3) and (4) of this paragraph. The greater of the fixed fee or formula rate will be charged.
(1) Coastal lease charges. The board may grant coastal leases for public purposes as prescribed by the Natural Resources Code, Sections 33.103(1), 33.105, and 33.109. The filing fee and annual fee shall be negotiable.
(2) Structure registration fee. Structure registration fee is required for private piers or docks that are 100 feet long or less and 25 feet wide or less and require no dredging or filling, as authorized by the Natural Resources Code, §33.115. Though board approval is not required for construction, the applicant must register the location of the structure. The registration is valid for the life of the structure:
(A) filing fee: $25;
(B) annual fee: no charge;
(C) assignment fee: $25;
(D) amendment fee: $25.
(3) Miscellaneous coastal easement fees:
(A) assignment fee: $50;
(B) amendment fee: $50;
(C) late payment fee: 10% of past due amount/$25 minimum.
(4) Coastal easement fees:
(A) piers, docks, and watercraft storage facilities:
(i) residential use, Category I:
(I) filing fee: $25;
(II) annual fee: $.03 per square foot/$25 minimum;
(III) annual fee for more than one boatlift or boathouse and any oversized personal water craft slip: $250 each;
(ii) residential use, Category II:
(I) filing fee: $50;
(II) annual fee: 75% of fee calculated for same use as a commercial activity/$100 minimum;
(iii) commercial:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee: $.20 per square foot/$100 minimum;
(iv) Other, private non-profit use:
(I) filing fee: $50;
(II) annual fee: negotiable/$100 minimum.
(B) marinas:
(i) Clear Lake:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee: $4.00 per boat slip linear foot;
(ii) residential use: Category II:
(I) filing fee: $50;
(II) annual fee: 75% of fee calculated for same use as a commercial activity;
(iii) other:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee: $3.00 per boat slip linear foot;
(C) wharf:
(i) filing fee: $50;
(ii) evaluation fee: $50;
(iii) annual fee: $.30 per square foot/$100 minimum;
(D) breakwaters, jetties, and groins:
(i) residential--Category I:
(I) filing fee: $25;
(II) annual fee: $.20 per square foot/$25 minimum;
(ii) residential--Category II:
(I) filing fee: $50;
(II) annual fee: 75% of fee calculated for same use as a commercial activity/$100 minimum;
(iii) commercial activity:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee: $.20 per square foot/$100 minimum;
(E) dredged area:
(i) mineral interest holder:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee:
(-a-) first year fee for a new dredged area: $.02 per square foot/$100 minimum;
(-b-) fee for maintaining a dredged area after first year of easement: $.005 per square foot/$100 minimum;
(ii) residential--Category I:
(I) filing fee: $50;
(II) annual fee:
(-a-) first year fee for a new dredged area: $.03 per square foot/$25 minimum;
(-b-) fee for maintaining a dredged area after first year of easement: $.005 per square foot/$25 minimum;
(iii) residential--Category II:
(I) filing fee: $50;
(II) annual fee: 75% of fee calculated for same use as commercial activity/$100 minimum;
(iv) commercial activity:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee:
(-a-) first year fee for a new dredged area: $.05 per square foot/$100 minimum;
(-b-) fee for maintaining a dredged area after first year of easement: $.01 per square foot/$100 minimum;
(F) Open encumbered area:
(i) residential--Category I:
(I) filing fee: none;
(II) annual fee: none;
(ii) residential--Category II:
(I) filing fee: $50;
(II) annual fee: 75% of fee calculated for same use as commercial activity/$100 minimum;
(iii) commercial activity:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee: $.03 per square foot/$100 minimum;
(iv) Other, private non-profit use:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee: negotiable/$100 minimum;
(G) basin: commercial and industrial activity:
(i) industrial activity:
(I) filing fee: $50;
(II) annual fee: basin formula, industrial activity;
(III) evaluation fee: $50;
(ii) commercial activity:
(I) filing fee: $50;
(II) annual fee: basin formula, commercial activity;
(III) evaluation fee: $50;
(H) fill area: all activity:
(i) commercial/industrial:
(I) filing fee: $50;
(II) annual fee: $.20 per square foot, $100 minimum, or fill formula;
(III) evaluation fee: $50;
(ii) private activity/public activity:
(I) filing fee: $50;
(II) annual fee:
(-a-) existing fill (excluding bulkheads) not permitted as of August 15, 1995: $.02 per square foot or $25, whichever is greater;
(-b-) annual fee for an alignment bulkhead to be constructed or constructed, but not permitted, as of August 15, 1995: $.02 per square foot or $25, whichever is greater;
(III) annual fee for other: $.10 per square foot or fill formula, whichever is greater/$25 minimum;
(I) Shoreline stabilization project--filing fee: $25;
(J) Concrete stairs, concrete slabs:
(i) residential--Category I:
(I) filing fee: $25;
(II) annual fee: $.03 per square foot/$25 minimum;
(ii) residential--Category II:
(I) filing fee: $50;
(II) annual fee: 75% of fee calculated for same use as a commercial activity/$100 minimum;
(iii) commercial activity:
(I) filing fee: $50;
(II) evaluation fee: $50;
(III) annual fee: $.20 per square foot/$100 minimum;
(iv) Other, private non-profit use:
(I) filing fee: $50;
(II) annual fee: $100.
(5) Structure (cabin) permits:
(A) fees:
(i) refundable deposit: $200;
(ii) annual fee for all structures excluding piers, docks, and walkways will be calculated at $.60 per square foot per year/$175 minimum;
(iii) contract renewal: $175;
(iv) new contract issuance or transfer of interest approved by the board: $325;
(v) bonus payment for new contract issuance for structure determined by the board to be abandoned or for which the permit was terminated by the board for cause: negotiable/minimum to be determined by the board;
(vi) filing fee for competitive bid proposal for permit for structure determined by the board to be abandoned or for which the permit was terminated by the board for cause: $50;
(vii) late payment fee: 25% of past due amount;
(B) permittee may apply for a continuation of the previous fee if the permit was issued prior to July 18, 1983 (the date of the initial rate increase), and if the annual fee will impose an undue financial hardship on a current permit holder.
(6) Resource Impact Fee:
(A) Public use piers and residential piers constructed within guidelines: exempt;
(B) All others: $100 plus $1.00 per square foot of impacted area.
(7) Term. The term for all coastal leases and coastal easements is negotiable. Board approval is required prior to construction.
(8) Rental adjustments--all commercial and industrial easements. At every five-year interval in the term of commercial and industrial easements, the rental fee for the easement will be subject to adjustment. The adjustment, if any, will be in accordance with the then current Fee Schedule as adopted by the Board.
(9) Implementation.
(A) New residential developments. Upon the application for an easement associated with the development of a multi-unit or single-family residential project, the easement application will be processed and fee determined according to the appropriate commercial activity rate. Upon the sale of an individual residential unit associated with the easement, with sufficient infrastructure in place to convert use of the unit to individual use (and use of associated easement to private activity), the original easement applicant, upon agreement with the commissioner of the GLO, may pay a $50 conversion fee. The easement fee may then be reduced by the percentage that the sold unit represented to the total number of units associated with the easement. At the time the conversion fee is paid under the provisions herein, the unit will then be considered to be subject to the residential activity rates upon renewal of the easement. For units already sold prior to the effective date of this section, conversion to a residential activity rate will be granted without the payment of the conversion fee.
(B) Additional terms. The commissioner of the GLO may require, as a condition for the granting of an easement set forth in this section, such additional terms that he feels are necessary to secure performance under any such easement.
(10) Senior fee freeze. Upon application to the GLO and submission of proof of age by a grantee, fees for coastal easements associated with a single family residence will not be increased after the point in time when the littoral property owner (one person in the case of joint ownership) reaches the age of 65, unless the area of encumbered state land increases or there is a change in use of the coastal public land.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 7, 2008.
TRD-200804134
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs, General Land Office
School Land Board
Effective date: September 1, 2008
Proposal publication date: June 13, 2008
For further information, please call: (512) 475-1859
The School Land Board (board) adopts the repeal of §155.6 relating to Shoreline Alteration Projects and §155.8 relating to Federal, State, and Local Laws and Regulations. The repeals are adopted without changes to the proposal as published in the June 13, 2008, issue of the Texas Register (33 TexReg 4640).
Section 155.6 (relating to Shoreline Alteration Projects) included provisions related to the requirements for a coastal boundary survey when conducting shoreline alteration projects. This section is unnecessary because the requirement to provide a coastal boundary survey is found in Texas Natural Resources Code §33.136 and adopted amendments to §155.1 (relating to General Provisions).
Section 155.8 (relating to Federal, State, and Local Laws and Regulations) addressed the requirement that all grantees comply with all applicable federal, state, and local laws and regulations related to their use of coastal public land. Deletion of this section avoids duplication because all contract documents already require such compliance.
The adoption of the repeal will result in the removal of unnecessary and potentially confusing provisions from the Texas Administrative Code.
The board has evaluated the adopted repeal rulemaking action in light of the regulatory analysis requirements of Texas Government Code §2001.0225, and determined that the action is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the statute. "Major environmental rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The repeal of these sections is not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state because the repeal implements legislative requirements in Texas Natural Resources Code §§33.101 - 33.136 relating to the board's ability to grant rights in coastal public land.
The adopted repeals are subject to the CMP, 31 TAC §§505.11(a)(1)(E) - (I) and §505.11(c), relating to the Actions and Rules Subject to the CMP. The board has reviewed these actions for consistency with the CMP's goals and policies in accordance with the regulations of the Coastal Coordination Council (Council). The adopted action is consistent with the applicable CMP goals and policies.
The board did not receive any comments on the repeal.
The repeal is adopted pursuant to Texas Natural Resources Code §§33.101 - 33.136, relating to the board's ability to grant rights in coastal public land, and Texas Natural Resources Code §33.064, providing that the board may adopt procedural and substantive rules which it considers necessary to administer, implement and enforce Chapter 33, Texas Natural Resources Code.
Texas Natural Resources Code §§33.101 - 33.136 are affected by the repeals.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 7, 2008.
TRD-200804135
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs, General Land Office
School Land Board
Effective date: September 1, 2008
Proposal publication date: June 13, 2008
For further information, please call: (512) 475-1859