Presenter: Joedy Gray

Commission Agenda Item No. 8
Action
Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants
January 2001

I. DISCUSSION: Staff is proposing amendments to 31 TAC §§57.111, 57.113, 57.115, 57.116, 57.117, 57.118, 57.120, 57.124, and 57.129. The proposed amendments are intended to clarify the permitting and reporting procedures, and provide additional protection to native aquatic species.

Proposed amendments to §57.111 will add the channeled applesnail Pomacea canaliculata to the list of prohibited shellfish. Amendments to section §57.113 will require all permitted black carp to be certified as triploids, and reinstate triploid grass carp to the list of permitted species that may be possessed, propagated, transported and sold. Amendments to §§57.116, 57.117, and 57.124 incorporate the term Aquaculture license to be consistent with the Texas Department of Agriculture rules. Amendments to §§57.115, 57.118, 57.120, and 57.129 will simplify previously adopted rules.

II. RECOMMENDATION: The staff recommends the Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts the proposed amendments to 31 TAC §§57.111, 57.113, 57.115, 57.116, 57.117, 57.118, 57.120, 57.124 and 57.129 concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants (located at Exhibit A) as published in the December 22, 2000, issue of the Texas Register (25 TexReg 12612)"

Attachments - 2
1. Exhibit A - Exotic Species Rules
2. Exhibit B - Fiscal Note (Available upon request)


Commission Agenda Item No. 8
Exhibit A

Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§57.111, 57.113, 57.115, 57.116, 57.118, 57.120, 57.124, and 57.129, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants. The proposed amendments are intended to clarify the permitting and reporting procedures, and provide additional protection to native aquatic species. The amendment to §57.111, concerning Definitions, will add the channeled applesnail (Pomacea canaliculata) to the list of prohibited shellfish, and will alter the definition of 'fish farmer' to specify that the term applies only to persons licensed pursuant to the Agriculture Code. The amendment to §57.113 will require all permitted black carp to be certified as triploids, and reinstate triploid grass carp to the list of species that may be possessed, propagated, transported and sold. The amendments to §§57.116, 57.117, and 57.124 incorporate the term Aquaculture license to be consistent with rules of the Department of Agriculture. The amendments to §§57.115, 57.118, 57.120, and 57.129 are nonsubstantive modifications of legal citations.

2. Fiscal Note.

Robin Reichers, staff economist, has determined that for each of the first five years that the amendment as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the amendments.

3. Public Benefit – Cost Note.

Mr. Reichers has also determined that for the first five years the amendments as proposed are in effect:

(A) The public benefit anticipated as a result of enforcement of and compliance with the sections will be the increased protection of aquatic animal life.

(B) There will be no effect on small businesses or microbusinesses. There is no additional economic cost to persons required to comply with the amendment as proposed.

(C) The department has not filed a local impact statement with the Texas Employment Commission as required by Government Code, §2001.022, as this agency has determined that the amendments as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private property, as defined by Government Code, Chapter 2007, as a result of the proposed amendments.

4. Request for Public Comments.

Comments on the proposed rules may be submitted to Joedy Gray, Inland Fisheries Division, Texas Parks and Wildlife, 4200 Smith School Road, Austin, Texas 78744. Comments may be faxed to Mr. Gray at (512) 389-4405. Written or faxed comments must be received no later than 5:00 p.m., Monday May 30, 2000 in order to be considered.

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §66.007(d), which requires the commission to make rules to carry out the provisions of the section.

The proposed amendments affect Parks and Wildlife Code, §66.007.

§57.111. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Aquaculture or fish farming—The business of producing and selling cultured species raised in private facilities.

(2) Certified Inspector—An employee of the Texas Parks and Wildlife Department or the Texas A&M Sea Grant College Program who has satisfactorily completed a department approved course in clinical analysis of shellfish.

(3) Cultured species—Aquatic plants or wildlife resources raised under conditions where at least a portion of their life cycle is controlled by an aquaculturist.

(4) Clinical Analysis Checklist—An inspection form provided by the department specifying sampling protocols and listing certain characteristics which may constitute manifestations of disease.

(5) Department—The Texas Parks and Wildlife Department or a designated employee of the department.

(6) Director—The executive director of the Texas Parks and Wildlife Department.

(7) Disease—Contagious pathogens or injurious parasites which may be a threat to the health of natural populations of aquatic organisms.

(8) Disease-Free—A status, based on the results of an examination conducted by a department approved shellfish disease specialist that certifies a group of aquatic organisms as being free of disease.

(9) Exotic species—A nonindigenous plant or wildlife resource not normally found in public water of this state.

(10) Fish farm—The property including all drainage ditches and private facilities from which cultured species are produced, held, propagated, transported, or sold.

(11) Fish farm complex—A group of two or more separately owned fish farms located at a common site and sharing privately owned water diversion or drainage structures.

(12) Fish farmer—Any person holding a valid license to engage [engaged] in aquaculture or fish farming under Agriculture Code, Chapter 134.

(13) Grass carp—The species Ctenopharyngodon idella.

(14) Harmful or potentially harmful exotic fish—

(A) Lampreys Family: Petromyzontidae—all species except Ichthyomyzon castaneus and I. gagei;

(B) Freshwater Stingrays Family: Potamotrygonidae—all species;

(C) Arapaima Family: Osteoglossidae—Arapaima gigas;

(D) South American Pike Characoids Family: Characidae—all species of genus Acestrorhyncus;

(E) African Tiger Fishes Subfamily: Hydrocyninae—all species;

(F) Piranhas and Priambebus Subfamily: Serrasalminae—all species;

(G) Rhaphiodontid Characoids Subfamily: Rhaphiodontinae—all species of genera Hydrolycus and Rhaphiodon (synonymous with Cynodon);

(H) Dourados Subfamily: Bryconinae—all species of genus Salminus;

(I) South American Tiger Fishes Family: Erythrinidae—all species;

(J) South American Pike Characoids Family: Ctenolucidae—all species of genera Ctenolucius and Luciocharax (synonymous with Boulengerella and Hydrocinus);

(K) African Pike Characoids Families: Hepsetidae Ichthyboridae—all species;

(L) Electric Eels Family: Electrophoridae—Electrophorus electricus;

(M) Carps and Minnows Family: Cyprinidae—all species and hybrids of species of genera: Abramis, Aristichthys, Aspius, Aspiolucius, Blicca, Catla, Cirrhina, Ctenopharyngodon, Elopichthys, Hypophthalmichthys, Leuciscus, Megalobrama, Mylopharyngodon, Parabramis, Pseudaspius, Rutilus, Scardinius, Thynnichthys, Tor, and the species Barbus tor (synonymous with Barbus hexoagoniolepis);

(N) Walking Catfishes Family: Clariidae—all species;

(O) Electric Catfishes Family: Malapteruridae—all species;

(P) South American Parasitic Candiru Catfishes Subfamilies: Stegophilinae Vandelliinae—all species;

(Q) Pike Killifish Family: Poeciliidae—Belonesox belizanus;

(R) Marine Stonefishes Family: Synanceiidae—all species;

(S) Tilapia Family: Cichlidae—all species of genus Tilapia (including Sarotherodon and Oreochromis);

(T) Asian Pikeheads Family: Luciocephalidae—all species;

(U) Snakeheads Family: Channidae—all species;

(V) Walleyes Family: Percidae—all species of the genus Stizostedion except Stizostedion vitreum and S. canadense;

(W) Nile Perch Family: Centropomidae—all species of genera Lates and Luciolates;

(X) Drums Family: Sciaenidae—all species of genus Cynoscion except Cynoscion nebulosus, C. nothus, and C. arenarius;

(Y) Whale Catfishes Family: Cetopsidae—all species;

(Z) Ruff Family: Percidae—all species of genus Gymnocephalus;

(AA) Air sac Catfishes Family;

(BB) Swamp Eels, Rice Eels or One-Gilled Eel Family: Synbranchidae—all species;

(CC) Anguilliidae—all species except Anguilla rostrata;

(DD) Heteropneustidae—All species of genus Heteropneustes.

(15) Harmful or potentially harmful exotic shellfish—

(A) Crayfishes Family: Parastacidae—all species of the genus Astacopsis;

(B) Mittencrabs Family: Grapsidae—all species of genus Eriocheir;

(C) Giant Ram's-horn Snails Family: Piliidae (synonymous with Ampullariidae)—all species of genus Marisa;

(D) Zebra Mussels Family: Dreissenidae—all species of genus Dreissena;

(E) Penaeid Shrimp Family: Penaeidae—all species of genus Litopenaeus and Farfantepenaeus except L. setiferus, F. aztecus and F. duorarum.

(F) Pacific Oyster Family: Ostreidae—Crassostrea gigas.

(G) Applesnails Family: Ampullariidae – Channeled Applesnail (Pomacea canaliculata).

(16) Harmful or potentially harmful exotic plants—

(A) Giant Duckweed Family: Lemnaceae—Spirodela oligorhiza;

(B) Salvinia Family: Salviniaceae—all species of genus Salvinia;

(C) Waterhyacinth Family: Pontederiaceae—Eichhornia crassipes;

(D) Waterlettuce Family: Araceae—Pistia stratiotes;

(E) Hydrilla Family: Hydrocharitaceae—Hydrilla verticillata;

(F) Lagarosiphon Family: Hydrocharitaceae—Lagarosiphon major;

(G) Eurasian Watermilfoil Family: Haloragaceae—Myriophyllum spicatum;

(H) Alligatorweed Family: Amaranthaceae—Alternanthera philoxeroides;

(I) Rooted Waterhyacinth Family: Pontederiaceae—Eichhornia azurea;

(J) Paperbark Family: Myrtaceae—Melaleuca quinquenervia;

(K) Torpedograss Family: Gramineae—Panicum repens;

(L) Water spinach Family: Convolvulaceae—Ipomoea aquatic.

(17) Harmful or potentially harmful exotic species exclusion zone—That area south of SH 21, from its intersection with the Texas/Louisiana border, approximately five miles due east of Milam, Texas, not including that area of Brazos County south of SH 21, to San Marcos; thence south of IH 35 to Laredo.

(18) Immediately—Without delay; with no intervening span of time.

(19) Manifestations of disease—Manifestations of disease include, but are not limited to, one or more of the following: heavy or unusual predator activity, empty guts, emaciation, rostral deformity, digestive gland atrophy or necrosis, gross pathology of shell or underlying skin typical of viral infection, fragile or atypically soft shell, gill fouling, or gill discoloration.

(20) Nauplius or nauplii—A larval crustacean having no trunk segmentation and only three pairs of appendages.

(21) Operator—The person responsible for the overall operation of a wastewater treatment facility.

(22) Place of business—A permanent structure on land where aquatic products or orders for aquatic products are received or where aquatic products are sold or purchased.

(23) Postlarva—A juvenile crustacean having acquired a full complement of functional appendages.

(24) Private facility—A pond, tank, cage, or other structure capable of holding cultured species in confinement wholly within or on private land or water, or within or on permitted public land or water.

(25) Private facility effluent—Any and all water which has been used in aquaculture activities.

(26) Private pond—A pond, tank, lake, or other structure capable of holding cultured species in confinement wholly within or on private land.

(27) Public aquarium—An American Association of Zoological Parks and Aquariums accredited facility for the care and exhibition of aquatic plants and animals.

(28) Public waters—Bays, estuaries, and water of the Gulf of Mexico within the jurisdiction of the state, and the rivers, streams, creeks, bayous, reservoirs, lakes, and portions of those waters where public access is available without discrimination.

(29) Quarantine condition—Confinement of exotic shellfish such that neither the shellfish nor the water in which they are or were maintained comes into contact with other fish or shellfish.

(30) Triploid grass or black carp—A grass carp (Ctenopharyngodon idella) or black carp (Mylophryngodon piceus) which has been certified by the United States Fish and Wildlife Service as having 72 chromosomes and as being functionally sterile.

(31) Waste—Waste shall have the same meaning as in Chapter 26, §26.001(6) of the Texas Water Code.

(32) Water in the state—Water in the state shall have the same meaning as in Chapter 26, §26.001(5) of the Texas Water Code.

(33) Wastewater treatment facility—All contiguous land and fixtures, structures or appurtenances used for treating wastewater pursuant to a valid permit issued by the Texas Natural Resource Conservation Commission.

§57.113. Exceptions.

(a) A person who holds a valid Exotic Species Permit issued by the department may possess, propagate, sell and transport to the permittee's private facilities exotic harmful or potentially harmful fish, shellfish and aquatic plants only as authorized in the permit provided the harmful or potentially harmful exotic species are to be used exclusively:

(1) as experimental organisms in a department approved research program; or

(2) for exhibit in a public aquarium approved for display of harmful or potentially harmful exotic fish, shellfish and aquatic plants.

(b) A person may possess exotic harmful or potentially harmful fish or shellfish, exclusive of grass carp, without a permit, if the intestines of the fish or shellfish have been removed.

(c) A person may possess grass carp harvested from public waters that have not been permitted for triploid grass carp, without a permit, if the intestines have been removed.

(d) A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport or sell triploid grass carp (Ctenopharyngodon idella), silver carp (Hypophthalmicthys molitrix), triploid black carp (Mylophryngogon piceus, also commonly known as snail carp), bighead carp (Aristichthys/Hypophthalmicthys nobilis), blue tilapia (Tilapia aurea), Mozambique tilapia (Tilapia mossambica), Nile tilapia (Tilapia nilotica), or hybrids between the three tilapia species, unless otherwise [as] provided by conditions of the permit or [and] these rules.

(e) A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport, or sell Pacific white shrimp (Litopenaeus vannamei) provided the exotic shellfish meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(f) An operator of a wastewater treatment facility in possession of a valid exotic species permit issued by the department may possess and transport permitted exotic species to their facility only for the purpose of wastewater treatment.

(g) A person may possess Mozambique tilapia in a private pond subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice).

(h) The holder of a valid triploid grass carp permit issued by the department may possess triploid grass carp as provided by conditions of the permit and these rules.

(i) A licensed retail or wholesale fish dealer is not required to have an exotic species permit to purchase or possess:

(1) live individuals of species or hybrids of species listed in subsection (d) of this section held in the place of business, unless the retail or wholesale fish dealer propagates one or more of these species. However, such a dealer may sell or deliver these species to another person only if the intestines or head of the fish are removed; or

(2) Live Pacific white shrimp (Litopenaeus vannamei) held in the place of business if the place of business is not located within the Harmful or Potentially Harmful Exotic Species Exclusion Zone. However, such a dealer may only sell or deliver this species to another person if the shrimp are dead and packaged on ice or frozen.

(j) The department is authorized to stock planktivorous fish including silver carp (Hypophthalmichthys molitrix) and bighead carp Aristichthys/Hypophthalmichthys nobilis) if necessary in Lake Rita Blanca, Hartley County, in order to investigate their utility as biological agents to improve water quality and enhance fishery management.

(k) The department is authorized to stock triploid grass carp into public waters in situations where the department has determined that there is a legitimate need, and when stocking will not affect threatened or endangered species, coastal wetlands, or specific management objectives for other important species.

(l) A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport and sell Pacific blue shrimp (Litopenaeus sylirostris) provided the exotic shellfish are cultured under quarantine conditions in private facilities located outside the harmful or potentially harmful exotic species exclusion zone, and meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(m) Any person who, as of the effective date of these rules, holds a valid exotic species permit issued by the department to possess, propagate, transport or sell Anguilla japonicus may continue to conduct such activities as authorized by the conditions of the permit. The permit may not be transferred to any other person, site or entity.

(n) An operator of a mechanical plant harvester in possession of a valid exotic species permit issued by the department may remove and dispose of prohibited plant species from public or private waters only by means authorized in the permit.

§ 57.115. Transportation of Live Exotic Species.

(a) Transport of live harmful or potentially harmful exotic species is prohibited except by:

(1) a [licensed] fish farmer in possession of a valid Exotic Species Permit and an exotic Species Transport Invoice;

(2) a commercial shipper acting for the permit holder in possession of an Exotic Species Transport Invoice;

(3) persons holding exotic species pursuant to limitations of §57.113 [§57.113(a)-(e)] of this title (relating to Exceptions).

(b) A fish farmer transporting live triploid grass or black carp must have sales invoices which account[, collectively,] for all triploid grass or black carp being transported and a copy of the United States Fish and Wildlife Service certification declaring that the [grass] carp being transported have been certified as being triploid [grass carp] in addition to meeting requirements of Chapter 134 of the Agriculture Code.

§57.116. Exotic Species Transport Invoice.

(a) An exotic species transport invoice shall contain all the following information correctly stated and legibly written: invoice number; date of shipment; name, address, and phone number of the shipper; name, address, and phone number of the receiver; [Texas] fish farmer's Aquaculture license number and exotic species permit number, if applicable; number and total weight of each harmful or potentially harmful exotic species; a check mark indicating interstate import, interstate export, or intrastate type of shipment. A completed invoice shall accompany each shipment of harmful or potentially harmful exotic species sold or transferred, and shall be sequentially numbered during the permit period; no invoice number shall be used more than once during any one permit period by the permittee.

(b) The exotic species transport invoice shall be provided by the permittee; one copy shall be retained by the permittee for a period of at least one year following shipping date and one copy shall be forwarded to the department's Exotic Species Program Leader.

(c) The permittee is responsible for supplying completed copies of the exotic species transport invoice to out-of-state dealers from which the permittee has purchased and or received harmful or potentially harmful exotic species, or to whom harmful or potentially harmful exotic species are transferred so that shipment will be properly marked and numbered upon delivery to the permittee in Texas.

(d) Owners, or their agents, of private ponds stocked with Mozambique tilapia or triploid grass carp by an Exotic Species Permit holder shall retain a copy of the Exotic Species Transport Invoice for a period of one year after the stocking date or as long as the tilapia or triploid grass carp are in the water, whichever is longer.

§57.117. Exotic Species Permit: Fee and Application Requirements.

(a) The department shall charge a nonrefundable exotic species permit application fee as follows:

(1) application for new, renewed, or amended exotic species permit which requires facility inspection—$250;

(2) application for renewed or amended exotic species permit requiring no facility inspection—$25;

(3) renewal applications received more than one year after the renewal date will require an additional inspection and cost $250.

(b) To be considered for an Exotic Species Permit, the applicant shall:

(1) meet one or more of the following criteria:

(A) possess a valid [Texas Fish Farmer's] Aquaculture License;

(B) possess a valid permit from the Texas Natural Resource Conservation Commission authorizing operation of a wastewater treatment facility;

(C) possess a department approved research proposal involving use of harmful or potentially harmful exotic fish, shellfish or aquatic plants; or

(D) operate a public aquarium approved for display of harmful or potentially harmful exotic fish, shellfish or aquatic plants;

(2) complete and submit an initial exotic species permit application on a form provided by the department;

(3) submit an accurate-to-scale plat of the facility specifically including, but not limited to, location of:

(A) all private facilities and owner's name and physical address including a designation on the plat of all private facilities which will be used for possession of harmful or potentially harmful exotic species;

(B) all structures which drain private facilities;

(C) all points at which private facility effluent is discharged from the private facilities or the fish farm;

(D) all structures designed to prevent escapement of harmful or potentially harmful species from the fish farm;

(E) any vats, raceways, or other structures to be used in holding harmful or potentially harmful exotic species;

(4) demonstrate to the department that an existing fish farm, private facility or wastewater treatment facility meets requirements of §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria);

(5) remit to the department all applicable fees.

(c) Applicants for an exotic species permit for culture of harmful or potentially harmful exotic shellfish must meet all exotic species permit application requirements and requirements for disease free certification as listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish).

(d) An applicant for an exotic species permit shall provide upon request from the department documentation necessary to identify any harmful or potentially harmful exotic species and confirm the source of origin for the species for which a permit is sought.

(e) An applicant for an Exotic Species Permit whose facility is located within the harmful or potentially harmful exotic species exclusion zone as defined in §57.111 of this title (relating to Definitions) must submit an Emergency Plan to the department for review and approval. The plan shall include measures sufficient to prevent release or escapement of permitted harmful or potentially harmful exotic species into public water during a natural catastrophe (such as a hurricane or flood).

§57.118. Exotic Species Permit Issuance.

(a) The department may issue an Exotic Species Permit only to:

(1) a fish farmer [licensed Fish Farmer] and only for species listed in §57.113 [§57.113(c)-(e)] of this title (relating to Exceptions);

(2) a wastewater treatment facility operator;

(3) department approved research programs; or

(4) a public aquarium for display purposes only.

(b) The department may issue an exotic species permit upon a finding by the department that:

(1) all application requirements as set out in §57.117 of this title (relating to Exotic Species Permit: Fee and Application Requirements) have been met;

(2) the fish farm operated by the applicant and named in the permit meets or will meet the design criteria listed in §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria);

(3) the applicant has complied with all provisions of the Parks and Wildlife Code, §66.007, §66.015, and these rules during the one-year period preceding the date of application.

(c) Permits issued for fish farms, private facilities or wastewater treatment facilities under construction shall not authorize possession of harmful or potentially harmful exotic fish, shellfish or aquatic plants until such time as the department has certified that the fish farm, private facilities or wastewater treatment facility as-built meets the requirements in §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria).

§57.120 Exotic Species Permit: Expiration and Renewal.

(a) Exotic Species Permits required by these rules expire on December 31 of the year issued.

(b) The department may renew an Exotic Species Permit upon finding that:

(1) the applicant has met application requirements in §57.117 of this title (relating to Exotic Species Permit: Fee and Application Requirements);

(2) the facility will meet all applicable facility design criteria listed in §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria);

(3) the applicant has complied with all provisions of the Parks and Wildlife Code, §66.007, §66.015, and these rules during the one-year period preceding the date of agency action on the application for renewal; and

(4) the applicant has submitted a renewal application and all required annual [and quarterly] reports to the department as required in §57.123(a) and (b) of this title (relating to Exotic Species Permit Reports).

§57.124 Triploid Grass Carp; Sale, Purchase.

(a) Triploid grass carp may be sold only by a holder of an exotic species permit authorizing possession of triploid grass carp, and only to:

(1) a person in possession of a valid exotic species permit authorizing possession of triploid grass carp; or

(2) a person in possession of a valid triploid grass carp permit, and only in an amount less than or equal to that number specified in the permit.

(b) A person who holds a valid triploid grass carp permit may purchase triploid grass carp only from a Texas fish farmer in possession of a valid exotic species permit authorizing possession of triploid grass carp, and only in an amount less than or equal to that number specified in the triploid grass carp permit.

(c) A holder of an exotic species permit may obtain triploid grass carp only from:

(1) the holder of a valid exotic species permit authorizing possession of triploid grass carp; or

(2) a lawful source outside of the state.

(d) A fish farmer in possession of an exotic species permit must notify the department not less than 72 hours prior to taking possession of any and all shipments of triploid grass carp received from any source. Notification must include:

(1) number of triploid grass carp being purchased;

(2) source of triploid grass carp;

(3) final destination of triploid grass carp;

(4) name of certifying authority who conducted triploid grass carp certification; and

(5) name, address and fish farmer's Aquaculture license number (if applicable) of both shipper and receiver.

§57.129 Exotic Species Permit: Private Facility Criteria.

(a) The fish farm or wastewater treatment facility must be designed to prevent discharge of water containing adult or juvenile harmful or potentially harmful exotic species, their eggs, seeds or other reproductive parts from the permittee's property.

(b) Fish farms holding harmful or potentially harmful exotic fish or shellfish shall have at least three appropriately designed and constructed permanent screens placed between any point in the fish farm where harmful or potentially harmful exotic fish or shellfish are intended to be in water on the fish farm and the point where private facility effluent first leaves the fish farm.

(1) Screen mesh shall be of an appropriate size for each stage of exotic fish or shellfish growth and development.

(2) One screen must be permanently affixed in front of the final discharge pipe in the harvest structure and remain in place while the pond is in use. This screen and backing material must be of sufficient strength to withstand a water level differential of the height of the discharge area.

(3) At those facilities which discharge into public waters, one screen must be secured over the terminal end of the discharge pipe at all times. This screen must be secured in such a fashion as to prevent escape of permitted species. A second, additional screen must be secured over the terminal end of the discharge pipe during all harvest activities.

(4) Screens must be designed and constructed such that screens can be maintained and cleaned without reducing the level of protection against release of harmful or potentially harmful exotic fish or shellfish. The department may approve alternate methods of preventing discharge of harmful or potentially harmful exotic fish or shellfish upon a finding that those methods are at least as effective in preventing discharge of adult or juvenile harmful or potentially harmful exotic species, their eggs, or other reproductive parts from the permittee's property. The point of discharge of all mechanical harvesting devices must be double screened to prevent escapement of harmful or potentially harmful fish or shellfish.

(c) Fish farms which are to contain species or hybrids of species listed in §57.113 [§57.113(c)-(e)] of this title (relating to Exceptions) and wastewater treatment facilities containing permitted exotic species [waterhyacinth] which are within the 100-year flood plain, referred to as Zone A on the National Flood Insurance Program Flood Insurance Rate Map, must be enclosed within an earthen or concrete dike or levee constructed in such a manner to exclude all flood waters and such that no section of the crest of the dike or levee is less than one foot above the 100-year flood elevation. Dike design or construction must be approved by the department before issuance of a permit.

(d) Fish farms containing harmful or potentially harmful exotic shellfish shall be capable of segregating stocks of shellfish which have not been certified as free of disease from other stocks of shellfish on that fish farm.

(e) A fish farm containing harmful or potentially harmful exotic fish or shellfish must have in place security measures designed to prevent unrestricted or uncontrolled access to any private facilities containing harmful or potentially harmful exotic fish or shellfish. Security measures must prevent unauthorized removal of such species from the fish farm.

(f) For fish farms that are part of a fish farm complex, the following additional facility standards shall apply.

(1) Each permittee shall maintain in the common drainage at least one screen for preventing the movement of harmful or potentially harmful exotic fish or shellfish between the point where private facility effluent from the permittee's fish farm enters the common drainage and each point where an adjacent fish farmer's private facility effluent enters the common drainage. The adequacy of design and construction of such screens or other structures shall be determined by the department as provided in subsection (a)(1) of this section.

(2) Each permittee within the complex must have authority to stop the discharge of private facility effluent from the complex in the event of escapement or release of such fish or shellfish from that permittee's fish farm.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt.

Issued in Austin, Texas, on


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