Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 57.
FISHERIES
Subchapter B. MUSSELS AND CLAMS
The Texas Parks and Wildlife Department (TPWD) proposes the repeal
of and new §57.157, concerning Mussels and Clams.
Brief Explanation of the Rule.
Proposed new §57.157(a) would prohibit taking or possession of mussels
(or clams) except as provided elsewhere in the subchapter.
Proposed new §57.157(b) would establish size limits for take and possession
of mussels under either a commercial license or a recreational fishing license.
The size limits reflect the age at which various species of mussels, especially
those species that are popular with commercial collectors, have reached maturity.
Mussels are very long-lived and slow-growing animals, often taking up to 10
years to reach reproductive maturity. The minimum size limits are necessary
to ensure that mussels are able to grow until they reach reproductive maturity,
thus ensuring the ability of mussel populations to perpetuate themselves.
Proposed new §57.157(c) would allow the harvest of mussels and clams
only by hand. Hand harvesting is the only way to ensure that only those mussels
of legal size are harvested. Mechanical harvesting negatively affects non-target
species and water quality. The proposed provision is necessary to protect
mussels and clams that have not yet reached reproductive maturity.
Proposed new §57.157(d) would prohibit the harvest of mussels at night
and on certain named stream segments and reservoirs. The prohibition on night
musseling is necessary for law enforcement purposes. Because musseling is
an underwater activity, it is difficult to impossible for law enforcement
personnel to detect persons engaged in musseling at night. The proposed new
provision also would prohibit the harvest of mussels and clams on 16 named
stream segments and reservoirs where, based on biological data, the department
has determined that mussel populations should be protected from harvest. These
locations are proposed because they support populations of rare and endemic
mussel species, or are important for maintaining, repopulating, or allowing
recovery of mussels in watersheds where they have been depleted. They are:
Big Cypress Creek from the dam at Lake Bob Sandlin downstream to U.S. Highway
271 in Camp County; the Sabine River from the dam at Lake Tawakoni downstream
to State Highway 19 in Rains and Van Zandt counties, from FM 14 to State Highway
155 in Smith County and from State Highway 43 downstream to U.S. Highway 59
in Harrison and Panola counties; the Angelina River from its source in Rusk
County to its confluence with the Neches River, including B. A. Steinhagen
Reservoir in Jasper County; the Neches River from the dam at Lake B. A. Steinhagen
downstream to its confluence with Pine Island Bayou in Orange County; the
Trinity River from State Highway 7 in Leon and Houston counties downstream
to the SH10 in Walker and Trinity counties; Live Oak Creek from U.S. Highway
290 west of Fredericksburg in Gillespie County downstream to the confluence
of the Pedernales River in Gillespie County; the Brazos River from the dam
at Possum Kingdom Reservoir in Palo Pinto County downstream to FM 258 in Parker
County; the Guadalupe River from the Upper Guadalupe River Authority dam in
Kerr County downstream to the Flat Rock Dam in Kerr County; the Concho River
from the mouth of Kickapoo Creek downstream to the U.S. Highway 83 bridge
in Concho County; the San Saba River from FM 864 in Menard County downstream
to the U.S. Highway 87 bridge in Menard County; the Guadalupe River from the
dam at Lake Wood in Gonzales County downstream to the confluence of the San
Marcos River in Gonzales County; the San Marcos River from its source in Hays
County downstream to the confluence with the Guadalupe River in Gonzales County;
Pine Creek from its source in Lamar County to its confluence with the Red
River, in Red River County; Sanders Creek from its source in Fannin County
to the confluence with the Red River in Lamar County; Elm Creek from its source
downstream to the dam at Elm Creek Lake at Ballinger City Park in Runnels
County; the Rio Grande from Columbia Bridge in Webb County downstream to the
Webb/Zapata county line.
Proposed new §57.157(e) would allow a person with a valid fishing
license (or a resident exempt from licensing) to harvest not more than 25
pounds per day of whole mussels and clams or 12 pounds of mussel and clam
shells, as is specifically authorized by statute (Parks and Wildlife Code §78.005).
Proposed new §57.157(f) would establish the criteria for the issuance
of a commercial mussel and clam fisherman's license. Beginning in license
year 2006-2007, a commercial mussel and clam fisherman's license would be
available only to a person who held a commercial mussel and clam fisherman's
license at any time between September 1, 2003 and May 1, 2006 and who continues
to purchase a commercial mussel and clam fisherman's license each year thereafter.
The department reviewed historical license purchases and noted that 10 of
the 13 persons currently holding a commercial mussel and clam fisherman's
license also purchased a license between September 1, 2003 and August 31,
2005. In limiting the availability of the special commercial license to persons
who have purchased a commercial mussel and clam fisherman's license within
the specified timeframe, the department's intent is to cap commercial mussel
harvest at current levels without inflicting hardship on persons currently
engaged in commercial mussel harvest. Another purpose is to furnish the department
with resource location and harvest data upon which to base management and
protection strategies. The proposed new subsection would require all persons
collecting under a commercial license to keep a daily log and submit an annual
report to the department, detailing the number and species of mussels and
clams collected by the licensee and allowing for the department to require
additional information about significant mussel populations encountered by
the licensee. Failure to comply with recordkeeping and reporting requirements
could result in license nonrenewal. The subsection also would require licensees
to be in physical possession of the license while engaged in take and sale
of mussels, and would allow the licensee to be assisted by other persons,
provided the licensee is present and is the only person actually disturbing
mussel beds.
Proposed new §57.157(g) would allow the sale of jewelry and collectibles
made from lawfully taken clamshell and pearls.
Statement of Public Benefits and Costs.
Bill Provine, Fisheries Biologist, has determined that adoption of the
rule would yield significant benefit to the public by protecting a valuable
public resource. Mussels are an important component of healthy aquatic ecosystems,
both as a food source for many other aquatic and terrestrial organisms, and
as an important indicator species. In early life stages, mussels are food
sources for a variety of aquatic insects, small fishes, and water birds; as
they mature they become significant food sources for larger fishes, waterfowl,
and terrestrial animals. Protection of this resource will preserve and enhance
the hunting, fishing, and outdoor recreation opportunities that are part of
Texas heritage.
Freshwater mussel populations have declined throughout North America. They
are sensitive to disturbance because they are relatively immobile organisms,
sometimes staying in a single spot for their entire lives. They have a complex
life cycle that is easily disrupted, causing reproductive failure. Habitat
alteration and loss, illegal and over harvesting, and competition from introduced
species are some of the factors in their decline. Mussels are extremely sensitive
to toxic substances, since they encounter toxins more immediately than most
organisms above them in the food chain and at higher concentrations relative
to body mass. Minute levels of some types of toxic substances (e.g., ammonia)
or chronic environmental stresses such as low oxygen levels or siltation caused
by bed scouring can quickly devastate mussel communities, in many cases long
before the environmental change is reflected by other aquatic species.
Nationwide, more species of freshwater mussels are listed as threatened
and endangered than any other group of animals. Of the nearly 300 species
known to have lived in the U.S., 18 are believed to be extinct, and 60 are
currently listed as federally endangered or threatened, including one species
occurring in Texas (the Ouachita rock-pocketbook mussel). Texas is home to
more than 50 species of freshwater mussels.
Although the commercial demand for freshwater mussels in the United States
has historically been for ornamental uses such as buttons, jewelry, and decorative
arts, recent commercial activity has centered on Asian demand for mussel shell
for the creation of seed pearls for cultured pearl industry.
Commercial harvest of freshwater mussels in Texas has been relatively intense
at times, (e.g., 488 commercial licenses sold in 1996); however, pressure
during the last several years has declined considerably in response to a contracting
market. Only 13 resident and non-resident mussel harvest licenses were sold
in the current license year. The department sold no shell-buyer licenses last
year, leading to the conclusion that commercial activity involving mussel
shell is at or near historic lows, which is confirmed by anecdotal information
from the regulated community. At the present time, the commercial harvest
of mussels and clams (within specified size limits) in public waters is essentially
unrestricted. Any recurrence of high demand, given the continued observed
habitat degradation and documented decline in mussel populations, would subject
mussel populations to unsustainable increases in additive harvest pressure.
Mussels are very long-lived animals, some living over 100 years, and are very
slow-growing. Some species valued in commercial trade take as long as 10 years
to reach the size at which they may be legally harvested. Therefore, it is
axiomatic that mussels do not recover quickly from over harvest or reductions
in populations caused by environmental degradation. Failure to acknowledge
the adverse impact of overharvest could lead to more serious biological problems
and potential listing activities by the federal government. The proposed new
rule is intended to stabilize commercial harvest at current levels while increasing
the department's knowledge about and ability to manage mussel populations.
The proposed new rule will minimize cost and avoid unnecessary duplication
by using commercial collectors to assist the department in monitoring efforts,
allowing the department to coordinate and allocate various department assets
in the most productive manner.
Persons required to comply with the rule will incur the costs associated
with recordkeeping and reporting, since the rule requires a daily log to be
kept and the filing of an annual report with the department. It is expected
that a person who collects mussels under a commercial license would need to
spend no more than 10 minutes per day filling out the daily log, and no more
than one hour per year completing the yearly report.
Persons who held a resident or nonresident commercial mussel and clam fisherman's
license for the 2003-2004 or 2004-2005 license year or the portion of the
2005-2006 license year prior to May 1, 2006 will be allowed to continue to
purchase the commercial license. Persons who did not hold a resident or nonresident
commercial mussel and clam fisherman's license for the 2003-2004, 2004-2005,
or portion of the 2005-2006 license year prior to May 1, 2006 will be subject
to the bag and possession limits in §57.157(b). Thus, the proposed rule
would have the effect of excluding from the commercial mussel fishery all
but the 13 persons who, according to TPWD records, held a resident or nonresident
commercial mussel and clam fisherman's license for the 2003-2004 or 2004-2005
license year or portion of the 2005-2006 license year prior to May 1, 2006.
Any or all of the remaining 13 licenses could be retired if not renewed or
if the holder were convicted of violations. These licenses must be renewed
every year, otherwise they will be permanently lost.
Effect on Small and Micro-Businesses.
TPWD believes that if an individual or business has not held a Texas commercial
mussel and clam fisherman's license at any time from September 1, 2003 to
May 1, 2006, that person is not "in the business" of commercial mussel and
clam fishing in Texas. Thus, limiting the fishery to persons who have held
a commercial mussel and clam fisherman's licenses for any part of the time
period from September 1, 2003 to May 1, 2006 will not affect existing small
or micro-businesses. The reporting and recordkeeping requirements will apply
to small and micro-businesses. Persons required to comply with the rule will
incur the costs associated with recordkeeping and reporting under the commercial
license. A daily log must be kept, and a yearly report must be provided. It
is expected that a person who collects mussels under a commercial license
would need to spend no more than 10 minutes per day filling out the daily
log, and no more than one hour per year completing the yearly report. These
requirements would apply equally to small businesses, micro-business, and
larger businesses; however, TPWD surveys indicate that all of the holders
of commercial mussel and clam fisherman's licenses are small or micro-businesses.
Thus, there is no difference between cost of compliance on small and micro-business
versus larger businesses.
Regulatory Impact Analysis. Although Government Code, §2001.0225,
Regulatory Analysis of Major Environmental Rules, does not apply to the proposed
rule, TPWD nonetheless provides the regulatory analysis, as follows. The benefit
TPWD anticipates as a result of implementing the rule is protection of a valuable
public resource. Mussels are an important component of healthy aquatic ecosystems,
both as a food source for many other aquatic and terrestrial organisms, and
as an important indicator species. In early life stages, mussels are food
sources for a variety of aquatic insects, small fishes, and water birds; as
they mature they become significant food sources for larger fishes, waterfowl,
and terrestrial animals. Protection of this resource will preserve and enhance
the hunting, fishing, and outdoor recreation opportunities that are part of
Texas heritage.
Freshwater mussel populations have declined throughout North America. They
are sensitive to disturbance because they are relatively immobile organisms,
sometimes staying in a single spot for their entire lives. They have a complex
life cycle that is easily disrupted, causing reproductive failure. Habitat
alteration and loss, illegal and over harvesting, and competition from introduced
species are some of the factors in their decline. Mussels are extremely sensitive
to toxic substances, since they encounter toxins more immediately than most
organisms above them in the food chain and at higher concentrations relative
to body mass. Minute levels of some types of toxic substances (e.g., ammonia)
or chronic environmental stresses such as low oxygen levels or siltation caused
by bed scouring can quickly devastate mussel communities, in many cases long
before the environmental change is reflected by other aquatic species.
Nationwide, more species of freshwater mussels are listed as threatened
and endangered than any other group of animals. Of the nearly 300 species
known to have lived in the U.S., 18 are believed to be extinct, and 60 are
currently listed as federally endangered or threatened, including one species
occurring in Texas (the Ouachita rock-pocketbook mussel). Texas is home to
more than 50 species of freshwater mussels.
Although the commercial demand for freshwater mussels in the United States
has historically been for ornamental uses such as buttons, jewelry, and decorative
arts, recent commercial activity has centered on Asian demand for mussel shell
for the creation of seed pearls for cultured pearl industry.
Commercial harvest of freshwater mussels in Texas has been relatively intense
at times, (e.g., 488 commercial licenses sold in 1996); however, pressure
during the last several years has declined considerably in response to a contracting
market. Only 11 resident and non-resident mussel harvest licenses were sold
during the 2004-2005 license year. The department sold no shell-buyer licenses
last year, leading to the conclusion that commercial activity involving mussel
shell is at or near historic lows, which is confirmed by anecdotal information
from the regulated community. At the present time, the commercial harvest
of mussels and clams (within specified size limits) in public waters is essentially
unrestricted. Any recurrence of high demand, given the continued observed
habitat degradation and documented decline in mussel populations, would subject
mussel populations to unsustainable increases in additive harvest pressure.
Mussels are very long-lived animals, some living over 100 years, and are very
slow-growing. Some species valued in commercial trade take as long as 10 years
to reach the size at which they may be legally harvested. Therefore, it is
axiomatic that mussels do not recover quickly from over harvest or reductions
in populations caused by environmental degradation. Failure to acknowledge
the adverse impact of overharvest could lead to more serious biological problems
and potential listing activities by the federal government. The proposed new
rule is intended to stabilize commercial harvest at current levels while increasing
the department's knowledge about and ability to manage mussel populations.
The proposed new rule will minimize cost and avoid unnecessary duplication
by using commercial collectors to assist the department in monitoring efforts,
allowing the department to coordinate and allocate various department assets
in the most productive manner.
Persons required to comply with the rule as proposed will incur costs associated
with recordkeeping and reporting, since the rule requires a daily log to be
kept and the filing of an annual report with the department. It is expected
that a person who collects mussels under a commercial license would need to
spend no more than 10 minutes per day filling out the daily log, and no more
than one hour per year completing the yearly report.
Persons who held a resident or nonresident commercial mussel and clam fisherman's
license for the 2003-2004, 2004-2005 or portion of the 2005-2006 license year
prior to May 1, 2006 will be allowed to continue to purchase the commercial
license. Persons who did not hold a resident or nonresident commercial mussel
and clam fisherman's license for the 2003-2004, 2004-2005 or 2005-2006 license
year will be subject to the bag and possession limits in §57.157(b).
Thus, the proposed rule would have the effect of excluding from the commercial
mussel fishery all but the 13 persons who, according to TPWD records, held
a resident or nonresident commercial mussel and clam fisherman's license during
the time period from September 1, 2003 to May 1, 2006. Any or all of the remaining
13 licenses could be retired if not renewed or if the holder were convicted
of violations. These licenses must be renewed every year; otherwise they will
be permanently lost.
An alternative method of achieving the purpose of the rule that was considered
was placing all mussel collection under the recreational limit. This would
have effectively abolished the commercial mussel fishery and led to a loss
of income to those who are engaged in this business. Moreover, the commercial
mussel industry would not have been enlisted in collecting and reporting data
about this resource. TPWD proposes the current rule because it will allow
the commercial mussel fishery to continue at its current level without economic
dislocation.
TPWD is not aware of a performance-oriented, voluntary, or market-based
approach that would substitute for the required license and data collection,
and the commercial mussel fisherman's license is created by statute. The opportunity
for public comments set forth below applies as well to the draft impact analysis
and all comments on the draft impact analysis will be addressed in the publication
of the final regulatory analysis.
Data and methodology used include the following studies, as well as surveys
of the industry.
Howells, R.G. 1995. Distributional surveys of freshwater bivalves in Texas.
Status survey for 1993. Texas Parks and Wildlife Department, Management Data
Series 119, Austin.
Howells, R.G. 1996. Distributional surveys of freshwater bivalves in Texas.
Status survey for 1994. Texas Parks and Wildlife Department, Management Data
Series 120, Austin.
Howells, R.G. 1997. Distributional surveys of freshwater bivalves in Texas.
Status survey for 1996. Texas Parks and Wildlife Department, Management Data
Series 144, Austin.
Howells, R.G. 1998. Distributional surveys of freshwater bivalves in Texas.
Status survey for 1997. Texas Parks and Wildlife Department, Management Data
Series 147, Austin.
Howells, R.G. 1999. Distributional surveys of freshwater bivalves in Texas.
Status survey for 1998. Texas Parks and Wildlife Department, Management Data
Series 161, Austin.
Howells, R.G. 2000. Distributional surveys of freshwater bivalves in Texas.
Status survey for 1999. Texas Parks and Wildlife Department, Management Data
Series 170, Austin.
Howells, R.G. 2001. Distributional surveys of freshwater bivalves in Texas.
Status survey for 2000. Texas Parks and Wildlife Department, Management Data
Series 187, Austin.
Howells, R.G. 2002. Distributional surveys of freshwater bivalves in Texas.
Status survey for 2001. Texas Parks and Wildlife Department, Management Data
Series 200, Austin.
Howells, R.G. 2003. Distributional surveys of freshwater bivalves in Texas.
Status survey for 2002. Texas Parks and Wildlife Department, Management Data
Series 214, Austin.
Howells, R.G. 2004. Distributional surveys of freshwater bivalves in Texas.
Status survey for 2003. Texas Parks and Wildlife Department, Management Data
Series 222, Austin.
Howells, R.G. 2005. Distributional surveys of freshwater bivalves in Texas.
Status survey for 2004. Texas Parks and Wildlife Department, Management Data
Series 233, Austin.
Howells, R.G., C.M. Mather, and J.A.M. Bergmann. 2000. Impacts of dewatering
and cold on freshwater mussels (Unionidae) in B.A. Steinhagen Reservoir, Texas.
The Texas Journal of Science, Special Supplement 52(4):93-104.
Howells, R.G., J.L. Dobie, W.L. Lindermann, and J.A. Crone. 2003. Discovery
of a new population of endemic Lampsilis bracteata in Central Texas, with
comments on species status. Ellipsaria 5(2):5-6.
Neck, R.W., and R.G. Howells. 1994. Status of the Texas heelsplitter, Potamilus
amphichaenus (Frierson, 1898). Texas Parks and Wildlife Department, Special
Report, Ingram.
Strenth, N.E., R.G. Howells, and A. Correa-Sandoval. 2004. New records
of the Texas hornshell Popenaias popeii (Bivalvia: Unionidae) from Texas and
Mexico. The Texas Journal of Science 56(3):223-230.
Fiscal Note.
Robert Macdonald, Regulations Coordinator, has determined that for each
of the first five years that the rule as proposed is in effect, there will
be minimal fiscal implications to state government as a result of enforcing
or administering the rule. The department has determined that there will be
some small cost associated with recordkeeping in the administration of the
commercial license; however, the cost will be absorbed using current staff
and resources. The department also notes that the cost of obtaining the same
data using department staff and resources would be much greater. There will
be no fiscal implications for units of local government.
The department has not drafted a local employment impact statement under
the Administrative Procedures Act, §2001.022, as the agency has determined
that the rule as proposed will not impact local economies.
The department has determined that there will not be a taking of private
real property, as defined by Government Code, Chapter 2007, as a result of
the proposed rule.
Request for Public Comments.
Comments on the proposed rule may be submitted to Bill Provine, Texas Parks
and Wildlife Department 4200 Smith School Road, Austin, Texas 78744; (512)
389-4855 (e-mail: bill.provine@tpwd.state.tx.us).
31 TAC §57.157
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Parks and Wildlife Department or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Parks and Wildlife Code,
Chapter 78 and §78.006. Under Parks and Wildlife Code, Chapter 78, the
Texas Parks and Wildlife Commission is authorized to regulate the taking,
possession, purchase, and sale of mussels and clams; the quantity and size
of mussels and clams that may be taken, possessed, sold, or purchased; and
the times, places, conditions, and means and manner of taking mussels and
clams. Under §78.006, the commission is required to consider the best
scientific information available in determining measures to prevent the depletion
of mussels and clams; measures to manage mussels and clams; measures, where
practicable, that will minimize cost and avoid unnecessary duplication in
their administration; and measures that will enhance enforcement.
The repeal is also proposed under Parks and Wildlife Code, §§67.001
- 67.003 and §67.0041. Under Parks and Wildlife Code, §67.001, mussels
are a nongame species by virtue of the fact that they are indigenous to Texas
and are not classified as game animals, game birds, game fish, fur-bearing
animals, endangered species (except for the Ouachita rock pocketbook), alligators,
marine penaeid shrimp, or oysters. Under Parks and Wildlife Code, §67.002,
the department is required to "develop and administer management programs
to insure the continued ability of nongame species of fish and wildlife to
perpetuate themselves successfully." Under §67.003, the department is
required to "conduct investigations of nongame fish and wildlife to develop
information on populations, distribution, habitat needs, limiting factors,
and any other biological or ecological data to determine appropriate management
and regulatory information." Under §67.0041, the department is authorized
to issue licenses for the taking, possession, propagation, transportation,
sale, importation, or exportation of a nongame species of fish or wildlife
if necessary to properly manage that species.
The proposed repeal affects Parks and Wildlife Code, Chapters 67 and 78.
§59.157.Mussels and Clams.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 23, 2006.
TRD-200602881
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: July 9, 2006
For further information, please call: (512) 389-4775