Presenter: Bill Provine

Commission Agenda Item No. 13
Action
Amendments to the Statewide Freshwater Mussel
and Clam Proclamation
August 2006

I. Executive Summary: This item presents proposed changes to rules governing the take of freshwater mussels and clams.

Proposed changes will:

II. Discussion: Responsibility for establishing seasons, bag limits and means and methods for harvest of mussels and clams is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 78. Currently commercial harvest of mussels and clams is allowed under specific size limits for different species. Mussels and clams are very long-lived animals, some living over 100 years, and are very slow growing. Some commercial species take as long as 10 years to reach our legal size. Mussels, therefore, do not recover quickly from over harvest or reductions in populations caused by environmental degradation. Although commercial harvest has been relatively intense during past years, with up to 488 commercial licenses sold in 1996, pressure during the last several years has fallen off considerably. Only 11 resident and non-resident mussel harvest licenses were sold in 2005. The proposed action would essentially establish a limited entry fishery for freshwater mussels similar to those already in effect for certain marine species. None of the current activities would be eliminated under the proposed rules. Therefore, this action is being proposed to reduce future possibility of large-scale commercial harvest, the only factor we have control over, which may, if demand returns, place extreme pressure on environmentally sensitive and slow recovering wildlife resources in Texas waters.

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

"The Texas Parks and Wildlife Commission adopts the repeal of §57.157 and new §57.157, concerning Mussels and Clams, with changes as necessary to the proposed text as published in the June 9, 2006, issue of the Texas Register (31 Tex. Reg. 4703)."

Attachments – 1

  1. Exhibit A – Statewide Freshwater Mussel and Clam Proclamation

Commission Agenda Item No. 13
Exhibit A

Statewide Freshwater Mussel and Clam Proclamation
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §57.157 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 the 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 2006-07, 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. Mr. 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. Mr. 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 rules 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).

5. Statutory Authority.

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.

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 rule affects Parks and Wildlife Code, Chapters 67 and 78.

§57.157. Mussels and Clams.

(a) General prohibition. It is unlawful for any person to take or possess mussels and clams except as provided under this subchapter.

(b) Size limits. No person may take or possess mussels or clams, including their shells, that can be passed through a ring with an inside diameter (I.D.) specified for the species, as follows:

Size Limits for Mussels and Clams
Species Ring ID in inches
Washboard, Megalonaias nervosa 4.00
Threeridges and roundlakes, Amblema spp. 2.75
Mapleleafs and pimplebacks, Quadrula spp. 2.75
Tampico pearlymussel, Cyrtonaias tampicoenisis 2.75
Bleufer, Potamilus purpuratus 2.75
All Other Species of Freshwater Mussels 2.50

(c) Means, and methods. Mussels and clams may be taken only by hand.

(d) Seasons, times, and places.

(1) It is unlawful for any person to take mussels and clams from 30 minutes after sunset to 30 minutes before sunrise of each day.

(2) Except for the stream segments and reservoirs listed in this paragraph, all public waters of the state are open to mussel and clam harvest.

(A) Big Cypress Creek from the Dam at Lake Bob Sandlin downstream to U. S. Highway 271 in Camp County;

(B) 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;

(C) Angelina from its source in Rusk County to its confluence with the Neches River to and including B. A. Steinhagen Reservoir in Jasper County;

(D) Neches River from the Dam at Lake B. A. Steinhagen downstream to its confluence with Pine Island Bayou in Orange County;

(E) Trinity River from State Highway 7 in Leon and Houston counties downstream to the SH10 in Walker and Trinity Counties;

(F) 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;

(G) Brazos River from the dam at Possum Kingdom Reservoir in Palo Pinto County downstream to FM 258 in Parker County.

(H) The Guadalupe River from UGRA dam in Kerr County downstream Flat Rock Dam in Kerr County.

(I) The Concho River from the mouth of Kickapoo Creek downstream to the U. S. Highway 83 Bridge in Concho County;

(J) The San Saba River from FM 864 in Menard County downstream to the U. S. Highway 87 Bridge in Menard County;

(K) The Guadalupe River from the dam at Lake Wood in Gonzales County downstream to the confluence of the San Marcos River in Gonzales County;

(L) The San Marcos River from its source in Hays County downstream to the confluence with the Guadalupe River in Gonzales County;

(M) Pine Creek from its source in Lamar County to its confluence with the Red River in Red River County;

(N) Sanders Creek from its source in Fannin County to the confluence with the Red River in Lamar County; and

(O) Elm Creek from its source downstream to the dam at Elm Creek Lake at Ballinger City Park in Runnels County.

(P) The Rio Grande from Columbia Bridge in Webb County downstream to the Webb/Zapata County line.

(e) Recreational bag limit. A person who possesses a valid fishing license or who is a resident and is exempt from licensing requirements under Parks and Wildlife Code, §46.002 may take or harvest from the public water of the state not more than 25 pounds a day of whole mussels and clams, or 12 pounds of mussel and clam shells.

(f) Resident and nonresident commercial licenses. Except as provided in subsection (g) of this section, no person may take any mussels, clams, or their shells from public water of the state for commercial purposes without a resident or nonresident commercial mussel and clam fisherman’s license.

(1) A license for taking mussels, clams, or their shells from the public water of the state for commercial purposes may be obtained by completing and submitting an application to the department on a form supplied by the department.

(2) The license authorized by this subsection:

(A) is valid only for the license year for which it is issued; and

(B) may be obtained only by a person who:

(i) held a resident or nonresident commercial mussel and clam fisherman’s license valid for the 2003-2004 or 2004-2005 license year or who obtained a commercial mussel and clam fisherman’s license between September 1, 2005 and May 1, 2006; and

(ii) continues to purchase a resident or nonresident commercial mussel and clam fisherman’s license every year thereafter.

(3) Holders of a resident or nonresident commercial mussel and clam fisherman’s license shall maintain a daily log.

(A) The daily log shall be on a form supplied by the department and shall describe:

(i) the number and weight of each species of mussels or clams taken each day by the person;

(ii) the name of the stream or reservoir where the take occurred; and

(iii) the county of take.

(B) The department may request additional information concerning significant populations of mussels or clams encountered by a licensee.

(4) The daily log required by this subsection shall be kept current and shall be presented at the request of any department employee acting within the scope of official duties.

(5) Holders of resident or nonresident commercial mussel and clam fisherman’s licenses shall complete and submit an annual report to the department by December 31 of each year. The annual report shall be on a form supplied or approved by the department.

(6) The department may refuse to issue a resident or nonresident commercial mussel and clam fisherman’s license to any person who fails to comply with the recordkeeping requirements of this section.

(7) A person engaging in any activity involving the take and sale of mussels for commercial purposes, including offering for sale or export of mussels or clams shall physically possess the resident or nonresident commercial mussel and clam fisherman’s license on his or her person during all such activities.

(8) A holder of a resident or nonresident commercial mussel and clam fisherman’s license may be assisted by other persons, provided the licensee is present and is the only person physically disturbing mussel or clam beds.

(g) Exception. A person who possesses a valid fishing license or who is a resident and is exempt from licensing requirements under Parks and Wildlife Code, §46.002, may take or harvest from the public water of the state not more than 25 pounds a day of whole mussels and clams, or 12 pounds of mussel and clam shells, for use and sale in jewelry and collectibles.

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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