Presenter: Dale Shively

Commission Agenda Item No. 3
Action
Artificial Reef Rules
November 2006

I. Executive Summary: This item presents the proposed new §§57.950-57.955, concerning Artificial Reefs which establish rules governing the placement of donated reef materials in a permitted zone by third-party entities.

II. Discussion: : Under Parks and Wildlife Code, Chapter 89, the department is required to promote, develop, maintain, monitor, and enhance the artificial reef potential in the navigable water of Texas and water of the federal fisheries conservation zone adjacent to Texas water. Chapter 89 also requires artificial reefs to: enhance and conserve fishery resources to the maximum extent practicable; facilitate access and use by Texas recreational and commercial fishermen; minimize conflicts among competing uses of water and water resources; minimize environmental risks and risks to personal and public health and property; be consistent with generally accepted principles of international law and national fishing law; not create any unreasonable obstruction to navigation; and use the best scientific information available. Additionally, Chapter 89 requires the department to develop and maintain an artificial reef plan and requires all artificial reefs constructed in the state to conform to the plan.

Since the inception of the program in 1989, the department has created 57 artificial reefs. In 2005, the Texas Legislature enacted House Bill 883, which authorized the department to promulgate rules governing the placement of donated reef materials in a permitted zone by third-party entities.

III. Recommendation: Staff recommends the following motion related to artificial reefs:

"Texas Parks and Wildlife Commission adopts new sections §§57.950-57.955 related to artificial reefs, as published in the September 29, 2006 Texas Register (31 TexReg. 8200)."

Attachment – 1

  1. Exhibit A – FY 2007 Agency Budget by Strategy

Commission Agenda Item No. 3
Exhibit A

Artificial Reef Rules
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes new §§57.950-57.955, concerning Artificial Reefs. In general, the new sections would establish a mechanism to govern the deployment of artificial reef materials in coastal waters by private individuals, groups, or associations.

Under Parks and Wildlife Code, Chapter 89, the department is required to promote, develop, maintain, monitor, and enhance the artificial reef potential in the navigable water of Texas and water of the federal fisheries conservation zone adjacent to Texas water. Chapter 89 also requires artificial reefs to: enhance and conserve fishery resources to the maximum extent practicable; facilitate access and use by Texas recreational and commercial fishermen; minimize conflicts among competing uses of water and water resources; minimize environmental risks and risks to personal and public health and property; be consistent with generally accepted principles of international law and national fishing law; not create any unreasonable obstruction to navigation; and use the best scientific information available. Additionally, Chapter 89 requires the department to develop and maintain an artificial reef plan and requires all artificial reefs constructed in the state to conform to the plan. The Texas Artificial Reef Fishery Management Plan was adopted by the Texas Parks and Wildlife Commission in 1990.

Since the inception of the program in 1990, the department has created 54 artificial reefs. In 2005, the Texas Legislature enacted House Bill 883, which authorized the department to promulgate rules governing the placement of donated reef materials in a permitted zone by third-party entities.

Proposed new §57.950, concerning General Provisions, establishes various requirements and obligations necessary to the proper function of the subchapter. Proposed subsections (a) and (b) would prohibit any person from constructing an artificial reef unless the person had entered into a valid Public Reefing Agreement (PRA) with the department. The proposed subsections are necessary to establish the Public Reefing Agreement as the mechanism for the creation of artificial reefs by entities other than the department.

Proposed new §57.950(c) would establish that the department may inspect and approve

reef units for deployment, verify the location of reef units, and board vessels involved in any activity under a PRA. The provisions are necessary to provide for the proper oversight of the reef construction process. The department must, if necessary, be able to conduct physical and visual inspections of prospective reef materials at any point in the process in order to verify concordance with information submitted in an application for a PRA. Similarly, the department must be able to verify that an artificial reef has been deployed at the location authorized by the PRA.

Proposed new §57.950(d) would require that only department-approved reef units would be allowed to be deployed. The provision is necessary to prevent the deployment of unapproved reef materials.

Proposed new §57.950(e) would stipulate that the department will determine the deployment locations for all artificial reefs. The provision is necessary because the department has determined those areas of seabed that are biologically appropriate for artificial reef construction.

Proposed new §57.950(f) would create a requirement that deployment of artificial reefs take place only during daylight hours. The provision is necessary primarily because verification of reef materials is much easier in daylight, but also because navigation is much safer in daylight.

Proposed new §57.950(g) would require transport vessels to monitor a specific frequency during transport and deployment activities. The provision is necessary to ensure that the department is able to communicate with vessels during operations under a PRA.

Proposed new §57.951, concerning Definitions, would establish meanings for specific terms and phrases used in the subchapter. The proposed new section is necessary to establish unambiguous meanings for terms and phrases in order to avoid confusion and misunderstandings.

Proposed new §57.952, concerning Applicability of Other Law, would clearly state that a PRA does not authorize a person to violate any law, statute, or regulation. The proposed new section is necessary to ensure that prospective PRA cooperators understand that a PRA is not a defense to prosecution.

Proposed new §57.953, concerning PRA Application, would prescribe an application process and authorize the department to refuse a PRA on the basis of the failure of proposed reef material to meet criteria established in proposed new §57.955 or a history of noncompliance. The new section is necessary to create an efficient method for administering the application process.

Proposed new §57.954, concerning Terms of Public Reefing Agreement (PRA), would set forth the elements that must be included in a PRA.

Proposed new §57.954(a)(1) would require an applicant to identify the material to be used in a prospective artificial reef. The proposed provision is necessary because the department must ensure that unsuitable materials are not deployed. The best way to accomplish this goal is to require the applicant to identify the reef material in a written document.

Proposed new §57.954(a)(2) would require the applicant to identify the staging area (the exact location where the prospective reef material will be immediately prior to departure for deployment). The proposed provision is necessary because the department must inspect and approve all reef material prior to deployment. The most efficient way to do this is to require the applicant to identify in writing a location where the reef material is located.

Proposed new §57.954(a)(3) would require the applicant to describe the methods and procedures to be employed in the preparation and deployment of reef materials. The proposed provision is necessary in order for the department to ensure that impacts to the natural environment as a result of preparation and deployment are consistent with standards established by state and federal guidelines for the construction of artificial reefs. The most effective and efficient way to accomplish this goal is to require the applicant to specify, in writing, the methods and procedures to be used.

Proposed new §57.954(a)(4) would require the applicant to specify the dates and times of all preparation and transport activities. The proposed provision is necessary so the department can effectively inspect and monitor activities to ensure compliance with the PRA, as well as state and federal laws and guidelines.

Proposed new §57.954(a)(5) would allow for a 90-day period of validity and a one-time, 90-day extension for activities under a PRA. The provision would also allow a PRA to be amended. The proposed provision is necessary to create a specific timeframe for the accomplishment of reef construction, but to allow the flexibility for reasonable modifications.

Proposed new §57.954(a)(6) would require notification of the department within 72 hours prior to the departure for deployment activities, to include the identities of all vessels, departure times, routes to the reef site, and estimated time of arrival. The proposed provision is necessary so the department can effectively inspect and monitor activities to ensure that activities under the PRA, as well as state and federal laws and guidelines.

Proposed new §57.954(a)(7) would require the submission of Global Positioning System (GPS) coordinates of all deployment sites to the department within five days of deployment. The proposed provision is necessary in order for the department to verify compliance with the PRA and to maintain an accurate database of all reef deployments made or authorized by the department.

Proposed new §57.954(a)(8) would require an applicant for a PRA to attest to reading and understanding the provisions of the subchapter and the department publication entitled “The Texas Public Reef Building Program; Standard Operating Protocol and Guidelines.” The proposed provision is necessary to preclude any misunderstandings or confusion surrounding an applicant’s obligations and responsibilities with respect to artificial reef construction.

Proposed new §57.954(a)(9) would allow the department to include other stipulations, restrictions, or conditions as necessary in a PRA. The provision is necessary because the wide variety of materials, procedures, methods, and processes that could be used or employed in artificial reef construction may create situations in which generic or blanket approval is impossible.

Proposed new §57.954(b) would allow the department to require a PRA applicant to supply a reasonable performance bond. The proposed provision is necessary to provide at least partial payment of costs associated with mitigation, restoration, or remediation activities occurring as a result of a failure to abide by a PRA.

Proposed new §57.955, concerning Reef Material Criteria, would require all prospective reef material to be free of pollutants or toxins in accordance with applicable laws, of a composition, density, and weight sufficient to prevent disassociation or movement, and configured in a manner that prevents the reef material from trapping marine life when deployed. The proposed new section is necessary to ensure that only clean, safe, and appropriate materials are deployed, that they possess physical characteristics that prevent migration, and that they not pose a physical threat to marine life. The purpose of artificial reefs is to provide habitat enhancement and encourage marine biodiversity. Obviously, the deployment of structures containing pollutants is counterproductive to that purpose, as is the placement of structures that function to entrap marine organisms. Additionally, structures must be heavy and dense enough to prevent easy movement, which could cause the reef to become a navigation hazard.

2. Fiscal Note.

Paul Hammerschmidt, Coastal Fisheries Division Director of Strategic Planning, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules. The department is required by statute to “promote, develop, maintain, monitor, and enhance the artificial reef potential” in public waters and currently employs personnel and operates a program for that purpose. The proposed new rules will be administered by current personnel. All deployments will be at sites that have been approved by the department for future reef construction, whether by the department or other entities.

3. Public Benefit – Cost Note.

Mr. Hammerschmidt also has determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be increased recreational opportunity resulting from enhanced habitats and increased biodiversity.

(B) There may be adverse economic effects on small businesses, microbusinesses, or persons affected by the rules as proposed. The rules provide for a new program. Participation in the program created by the rules is voluntary. The department’s intent in this rulemaking is to create a mechanism allowing entities other than the department to prepare and deploy artificial reef material (units) as a donation to the people and wildlife resources of this state. There will be some administrative costs to small and microbusinesses for entering into a reefing agreement with the department. These administrative costs are anticipated to be minimal and will be the same for small and microbusinesses as for larger businesses. Because of the department’s responsibility regarding this program, these cannot be reduced or eliminated.

Costs associated with acquiring, preparing, and deploying artificial reef units depend on a variety of factors, including the types of materials used, the location of the deployment site, weather, and fuel costs. The estimated cost for reefing the smallest, acceptable type of artificial reef unit would be approximately $1,000 for the construction, deployment, and siting of one unit. As the volume of reef material increases, the cost of construction, deployment, and siting increase proportionally to a point where costs can be characterized by the ton. Recent reef building activities by the department have cost approximately $95/ton for quantities greater than 1,500 tons. As mentioned, the types of reef material and transportation costs can influence the final cost of deployment. Materials used in the program thus far include singular units (called reef balls) and larger volumes of other material such as concrete poles. Thus, if a person chooses to donate these materials the range of cost for an individual could range from $1,000 up to $95/ton for quantities as great as 1,500 tons.

Under certain circumstances there could be costs in addition to these obvious and expected costs, such as additional preparation of reef material to achieve compliance with state and federal requirements for the deposit of reef material into the Gulf of Mexico, which are beyond the scope of this rulemaking.

(C) 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.

(D) 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.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Paul Hammerschmidt, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4650 (e-mail: paul.hammerschmidt@tpwd.state.tx.us).

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, Chapter 89, which authorizes the commission to adopt rules and guidelines as necessary to implement the chapter, and to authorize a person to place a donation of reef materials in a permitted zone in accordance with the chapter and commission rules and guidelines.

The amendment affects Parks and Wildlife Code, Chapter 89.

§57.950. General Provisions.

(a) No person may construct or attempt to construct an artificial reef in the coastal waters of this state unless the person has entered into a Public Reefing Agreement (PRA) with the department as described in §57.954 of this title (relating to Terms of Agreement) for that purpose.

(b) A PRA is not valid unless it has been signed by the applicant and an employee of the department authorized to approve a PRA.

(c) The department may:

(1) inspect and approve any reef units (on land or at sea) identified in a PRA;

(2) verify the location and composition of any deployed reef unit; and

(3) come aboard or accompany any vessel while the vessel is being used to deploy reef materials under a PRA.

(d) Only units approved by the department may be deployed.

(e) The deployment locations for artificial reefs shall be determined by the department.

(f) Deployment activities are to be conducted only during daylight hours.

(g) Transport vessel must monitor VHF channel 16 throughout transport and deployment activities.

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

(1) Agent—A person authorized by an applicant to act on behalf of the applicant. For the purposes of this chapter, the use of the term "applicant" also includes the applicant's agent.

(2) Applicant—Any person applying for a PRA.

(3) Approved Reef Unit—A reef unit which meets all standards, criteria and requirements established in this subchapter and Parks and Wildlife Code, Chapter 89.

(4) Coastal waters—The navigable salt water of Texas and water of the federal exclusive economic zone adjacent to Texas water.

(5) Deployment—The act of placing approved materials and reef units onto an approved artificial reef site.

(6) Person—Any person, firm, partnership, association, corporation, or entity.

(7) Reef Unit—Those materials to be deployed as an artificial reef that constitute a single approved item or multiple items that are permanently linked together.

(8) Staging Area—A physical location where all reef units are stored for inspection.

(9) Vessel—Any watercraft or barge used to transport materials for the construction of artificial reefs.

§57.952. Applicability of Other Law.

(a) This subchapter may not be construed as authorizing or allowing a person to act in violation of any state or federal law, rule, or regulation.

(b) A PRA issued under this section is not a defense to prosecution for conduct not specifically authorized by the agreement.

§57.953. PRA Application.

(a) A person seeking a PRA from the department for the construction of an artificial reef in the coastal waters of this state shall complete and submit an application to the department on a form supplied by the department.

(b) The department may refuse to authorize a PRA based on the following determinations:

(1) the reef units described in the application fail to meet criteria described in §57.955 of this title (relating to Reef Material Criteria).

(2) the applicant’s noncompliance with previous PRAs; or

(3) failure of reef units to meet criteria set forth herein.

(c) Following evaluation of the application the department may authorize a PRA for the applicant.

§57.954. Terms of Public Reefing Agreement (PRA).

(a) A PRA shall include provisions for:

(1) the material to be used in the reef construction;

(2) the staging area of the material identified in paragraph (1) of this subsection;

(3) the methods and procedures to be employed in the preparation and deployment of the reef materials;

(4) the dates and times of all activities involving the movement or deployment of reef materials;

(5) a period of validity, not to exceed 90 days, with the option of a one-time, 90-day extension of the PRA upon receipt of a written request explaining the need for an extension. The PRA may be amended based on the reasons for the extension and/or a renewal of a PRA.

(6) notification of the department no less than 72 hours prior to the departure of reef materials for deployment, to include:

(A) the vessel registration number of each vessel;

(B) the date and time of departure of each vessel; and

(C) the estimated time of arrival at the deployment site;

(7) the submission of the GPS coordinates of all deployments to the department within five business days following deployment;

(8) a statement attesting that the applicant has read and understands the provisions of this subchapter and the contents of the most current version of the department publication entitled “The Texas Public Reef Building Program; Standard Operating Protocol and Guidelines”; and

(9) any other stipulations, restrictions, or conditions determined by the department to be necessary, based on the particulars of the application.

(b) A PRA may include provisions for a reasonable performance bond which is to be returned to the applicant when the reef material has been deployed and all requirements of the PRA have been fulfilled to the satisfaction of the department.

§57.955. Reef Material Criteria. All materials employed in artificial reef construction must:

(1) be of such construction and material type so as not to break apart or disassociate; be of sufficient density and weight to ensure that the material will remain fixed at its final deployment location;

(2) be free of pollutants and toxins in accordance with U.S. Coast Guard, U.S. Environmental Protection Agency, and Texas Commission for Environmental Quality, or other legally binding standards; and

(3) be configured and deployed in such a manner that the materials will not function to trap marine life when deployed.

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

Filed with the Office of the Secretary of State on September 15, 2006.


Back to Top
Back to Top