Presenter: Larry McKinney

Commission Agenda Item No. 6
Action
Protection of Game Fish Under Freeze Conditions
January 2005

I. Executive Summary: This item will propose the adoption of rules that are intended to protect game fish in coastal waters in the event of a freeze and summarizes public comment on that proposal.

II. Discussion: From time to time, hard freezes occur on the Texas coast that kill game fish in shallow bay waters and cause surviving fish to congregate in a few deeper areas. The surviving fish in these deeper areas are sluggish and prone to capture. The high mortality that a freeze can cause may deplete fish stocks for years to come. Protection of the surviving fish during the few days when they are especially vulnerable to capture would likely shorten the time period for overall recovery of coastal species, especially spotted sea trout.

For these reasons, staff proposes the adoption of a rule that would authorize the Executive Director to close areas affected by freeze events until the freeze event is over. The Executive Director would provide adequate notice to the public regarding the closing of affected areas and similarly publicize the reopening of those areas to fishing when the freeze condition has passed. These closures would be limited to the deeper areas where fish are known to congregate in freezes and would end as soon as possible.

III. Recommendation: Staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts new section 31 TAC Chapter 65, Subchapter A (Statewide Hunting and Fishing Proclamation), §65.74. Freeze Events, with changes to the proposed text as published in the December 17, 2004, issue of the Texas Register (29 TexReg 11557-11558)."

Attachment - 1
1. Exhibit A - Seasons and Bag Limits - Fishing Provisions


Commission Agenda Item No. 6
Exhibit A

Chapter 65. Wildlife
Subchapter A. Statewide Hunting and Fishing Proclamation

3. Seasons and Bag Limits - Fishing Provisions
31 TAC §65.74

The Texas Parks and Wildlife Department proposes new §65.74, concerning Freeze Event Closures. The amendment is necessary to address concerns about the vulnerability of fish during freeze events. Freeze events can kill fish in the shallow waters of bay systems and surviving fish are easily located in the remaining deep water areas. The proposed new rule would temporarily prohibit fishing in affected areas to minimize further loss of fish during a freeze event, ensuring maximum survival of fish after the event to minimize the impact on fish populations and the ecosystem. As a result of protection during a freeze event, game fish stocks will be able to recover more quickly and overall fishing opportunity will be enhanced.

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

Robin Riechers also has determined that for each of the first five years the rule as proposed is in effect, the public benefit expected as a result of the proposed rule will be the further protection of fishery resources in the event of a freeze. This protection ensures maximum survival of spawning stock biomass in freeze-affected areas, which will minimize the overall effect of a freeze event upon the fishery.

There will be no direct costs for persons required to comply with the rule as proposed. The indirect costs will be the loss of a fishing opportunity during a freeze event. For commercial finfish license holders, the estimated amount of indirect cost (revenue deferred) is estimated at a maximum of $105 per license per day of closure.

If a freeze occurs and areas are temporarily closed to fishing in any period within the five years following the adoption of the rule, Texas coastal areas (counties of Cameron, Willacy, Kenedy, Kleberg, Nueces, San Patricio, Aransas, Refugio, Calhoun, Jackson, Victoria, Matagorda, Brazoria, Galveston, Harris, Chambers, Liberty, Jefferson, Orange) may be affected. During the closure, commercial fishing will be prohibited, accordingly, local commercial fishing businesses may defer revenue until the closure ends. In the long run, however, a brief closure in the event of a freeze will assist local commercial fishing businesses by speeding the recovery of fish species from the effects of the freeze.

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rule.

The proposed rule may have a temporary adverse effect on small and microbusinesses, specifically, commercial finfishing. There are approximately 440 active commercial finfish licenses in Texas. The primary species caught under these licenses are southern flounder and black drum. The proposed rule should have no effect on commercial floundering, since the primary floundering method is gigging in shallow water. If the area closed contains shallow water areas as well as the deep water areas where fish congregate during freeze conditions, it is unlikely that the shallow areas will be fished heavily during these freeze conditions. Black drum are typically caught on trotlines, so the proposed rule could potentially affect commercial black drum fishing. The overall economic effect of the rule should be positive in the long term, because the rule would allow the stock to recover more quickly after the population has suffered losses due to a freeze. In the short term, in the event of a freeze, commercial black drum trotline fishing would be prohibited in affected deeper water areas until temperatures warm sufficiently for the fish to disperse. It is expected that closures under this rule would be infrequent. The last time a coastal freeze occurred that might have required closures was 1994. There were two freezes in 1989. The freeze of 1983 is well remembered on the coast, since it caused the bays to ice over and made fishing physically impossible. The duration of the 1983 freeze was the longest in the past 21 years, about seven calendar days. (McEachron, et al, 1994). Thus, freezes are rare and brief events on the coast, and the closures would apply to limited areas. Accordingly, the effects on commercial fishing should be minor.

In 2000, the value of the black drum catch was $2.3 million, or about $9200 per fishing day (trotlines are not allowed on weekends). Thus, if a coastwide closure of all fishable areas for five fishing days were necessary, the total deferred revenue can be estimated at about $46,000. Per commercial fishing license, the deferred revenue would be about $525 over this five-day period. Of course, some areas will likely remain fishable except in the most severe freeze, so it is probable that commercial finfishermen will be able to select alternative fishing sites to the temporary closed areas and still earn revenue during the closed time period. It is infeasible to reduce the effects of the rule on small and microbusinesses. To TPWD’s knowledge, all commercial finfishing is done by small or microbusinesses. If commercial fishing were allowed in the closed areas, the long-term health of fish stocks could be negatively affected. Thus, this rule must apply uniformly. There are no reporting or design requirements under this rule.

A larger business will have a proportionately higher cost of compliance per $100 of sales because it will defer more revenue in the closed period.

The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rule.

Comments on the proposal may be submitted to Jerry L. Cooke, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4492; e-mail: jerry.cooke@tpwd.state.tx.us.

The new rule is proposed under the authority of Parks and Wildlife Code, Chapter 61, which provides the commission with authority to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life.

The proposed new rule affects Parks and Wildlife Code, Chapter 61.

§65.74.Freeze Events.

(a) Affected areas shall be temporarily closed to fishing when a freeze occurs. An affected area is a place where fishing during a freeze of sufficient severity risks depletion of one or more game fish species.

(b) The Executive Director shall provide appropriate notice to the public that a freeze has occurred and fishing in the affected area or areas is prohibited. The Executive Director shall provide appropriate public notice as to when fishing in the affected area or areas is allowed to resume.

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 December 6, 2004.

TRD-200407136

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: January 16, 2005

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


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