Commission Agenda Item No. 5
Presenter: Ken Kurzawski
Brandi Reeder
Lance Robinson and Jeremy Leitz

Action
2014-2015 Statewide Recreational and Commercial Fishing Proclamation
March 27, 2014

I.       Executive Summary:  This item seeks adoption of proposed changes to the Statewide Recreational and Commercial Fishing Proclamations and the Statewide Oyster Fishery Proclamation.  The proposed amendments and new section would:

Inland Fisheries

Coastal Fisheries

Law Enforcement

II.     Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking fisheries resources for recreational purposes is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapters 61 and 67.  Statutory authority to regulate commercial fisheries is delegated to the Commission under Parks and Wildlife Code, Chapters 47 and 66.  The proposed rules are based upon suggestions from the public, statutory requirements, and commission policy, including scientific investigation and required findings of fact where applicable.  The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

At the Work Session meeting on January 22, 2014, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the February 21, 2014 issue of the Texas Register (39 TexReg 1063).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.       RECOMMENDATION:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts the repeal of §57.977, amendments to §57.973, §57.981, and §57.992, and new §57.977 and §57.978, concerning the Statewide Recreational and Commercial Fishing Proclamations, with changes as necessary to the proposed text as published in the February 21, 2014, issue of the Texas Register (39 TexReg 1063).”

Attachments – 2

  1. Exhibit A – Proposed Fishing Rules
  2. Exhibit B – Proposed Oyster Rules

Commission Agenda Item No. 5
Exhibit A

STATEWIDE RECREATIONAL

AND COMMERCIAL FISHING PROCLAMATIONS

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §57.977, amendments to §57.973, §57.981, and §57.992, and new §57.977 and §57.978, concerning the Statewide Recreational and Commercial Fishing Proclamations.

         The proposed repeal of §57.977, concerning Violations and Penalties, would allow the department to propose new §57.977, concerning Spawning Event Closures. The provisions of current §57.977 would then become proposed new §57.978, concerning Violations and Penalties.

         The proposed amendment to §57.973, concerning Devices, Means, and Methods, would add three locations to the list of locations where persons are restricted to no more than two pole-and-line devices while angling, expand the geographical extent of special rules governing the take of rainbow trout on the Guadalupe River, and simplify rules specifying the color of floats that must be employed with jug lines.

         In 2012 the department implemented harvest and gear restrictions on Canyon Lake Project #6 in Lubbock County that are similar to those in effect for community fishing lakes (CFL). The lake is 82 acres, which is larger than the maximum size of 75 acres established by rule for CFLs; therefore, the lake was subject to statewide harvest and devices regulations. By rule, CFLs share a single regulatory structure on catfish (no minimum length limit, five fish bag) and gear usage (pole-and-line angling only, with a limit of two poles per person). The rulemaking last year addressed the restriction to pole-and-line angling only but not the pole limit and harvest limitations. The proposed amendment would correct that oversight by imposing the statewide CFL harvest regulations for channel and blue catfish and the two-pole limit on Canyon Lake Project #6. In addition, there are two segments of the Concho River within the city limits of the City of San Angelo that have also been managed under regulations similar to those in effect for CFLs. The proposed amendment would impose the CFL gear restriction rules on those stream segments.

         Current rules require juglines used for non-commercial purposes to be marked with a white, free-floating device. The department has received requests from the public to change the rule to remove the color requirement because “noodle” floats are ideal for this purpose but are not commonly available in white. The department has determined that allowing floats to be any color does not present an enforcement issue, provided the float is not orange, which is the required color for floats used on commercial juglines.

         Current harvest and gear regulations for rainbow and brown trout on the Guadalupe River from Canyon Lake Dam to the easternmost bridge crossing on Farm to Market Road (F.M.) 306 consist of the statewide limits for trout (a five-fish daily bag limit and no length limit). From the easternmost F.M. 306 crossing downstream to the second bridge crossing on River Road, current rules allow the harvest of trout 18 inches or longer, and anglers are allowed to retain one trout per day. The retention of trout harvest in this area is also restricted to trout caught on artificial lures. Downstream of the second bridge crossing on the River Road, the regulations revert back to statewide limits. The proposed amendment would impose a 12- to 18-inch slot length limit and five-fish daily bag limit, restrict harvest to artificial lures only, and allow only one trout over 18 inches to be retained. The new regulation zone would extend from 800 yards downstream from the Canyon Dam release to the easternmost F.M. 306 bridge crossing.

         Rainbow trout have been stocked in the Guadalupe River below Canyon Reservoir since 1966 by TPWD through a state/federal/private partnership, and the river has been a popular fishery since its inception. The Guadalupe River Chapter of Trout Unlimited (GRTU) has also stocked the Guadalupe River since the early 1970s. Because of the release from Canyon Reservoir, water temperature in the Guadalupe River below Canyon Reservoir is suitable for oversummer survival of rainbow trout in most years. The distance below the reservoir where water temperature remains suitable (below 70° F) is determined by outflow from the reservoir. Higher flows extend the distance, while lower flows reduce it. TPWD and/or GRTU have continuously monitored water temperatures at five sites in the river since 1997. Water temperature data indicate the 4-mile segment of the river from the outflow of Canyon Dam to the easternmost bridge crossing on F.M. 306 has the most consistent, suitable water temperatures. Mortality due to above optimal water temperature (70°F or higher) in this stretch is likely the lowest. Oversummer survival of trout in this segment of the river was documented in fall 2011 despite extremely low summer (June – August) flows (less than 70 cfs) and record high ambient temperatures.

         Length limits for the harvest of trout are not currently regulated in this section of the river. Trout of any length can be harvested in this stretch of the river although potential for multi-year survival in this stretch is likely the highest of anywhere on the river. A more-restrictive harvest regulation in this stream segment could be used to increase angler catch rates as well as potentially increase the size structure of the trout population. The proposed amendment is designed to avoid interfering with the popular catch-and-keep fishery directly below the dam. The 12-inch lower end of the slot limit would allow harvest of trout stocked by TPWD, as most are below this length, while protecting trout stocked by GRTU which are typically above this length.

         Proposed new §57.977, concerning Spawning Event Closure, would establish a processes to allow the department to temporarily prohibit the take of alligator gar in places where they are spawning or are about to spawn. Alligator gar populations are believed to be declining throughout much of their historical range in North America, which includes the Mississippi River system as well as the coastal rivers of the Gulf of Mexico from Florida to northern Mexico. Although the specific severity of these declines is unknown, habitat alteration and over-exploitation are thought to be partially responsible. Alligator gar have been extirpated in Illinois, Indiana, and Ohio and designated as a “Species of Concern” in Oklahoma and Kentucky. In addition, the Endangered Fishes Committee of the American Fisheries Society has listed the alligator gar as “Vulnerable.” Observed declines in other states, vulnerability to overfishing, and increased interest in the harvest of trophy gar indicate that a conservative management approach is warranted until populations and potential threats can be fully assessed. On that basis, the Commission in 2009 adopted a daily bag limit of one alligator gar per person, which was intended to protect adult fish while allowing limited harvest, thus ensuring population stability. Since 2009, the department has conducted (and is continuing to conduct) research to determine the estimated harvest of alligator gar, quantify reproduction, understand habitat usage, and determine geographic differences in populations. Initial analysis of the research data indicate that alligator gar in Texas have the greatest chance of spawning success if the creation of preferred spawning habitat (the seasonal inundation of low-lying areas of vegetation) occurs in late spring through early summer. Since each year does not necessarily bring seasonal inundation at the optimum time, spawning success varies greatly. For example, department data for the middle Trinity River indicate that between 1980 and 2010, strong reproductive success occurred in only five years (1980, 1989, 1990, 1991, and 2007). Furthermore, in 21 of the years between 1980 and 2010, reproductive success was nonexistent or weak, and in many of these years, rainfall was low or drought conditions occurred. Because the conditions for spawning do not exist on a regular or cyclical basis, and because spawning occurs in shallow waters where numerous gar can be concentrated in one area, alligator gar are extremely vulnerable to harvest during spawning. To protect alligator gar from excessive harvest during spawning, the proposed new rule would allow the executive director of the department to prohibit the take of alligator in an affected area, which would be defined as “an area of fresh water containing environmental conditions conducive for alligator gar spawning” or “an area of fresh water where alligator gar are in the process of spawning activity.” The proposed new rule would define “environmental conditions conducive for alligator gar spawning” as “the components of a hydrological state (including but not limited to water temperatures, duration and timing of flooding events, river discharge rates, and any other factors that are known to be conducive to gar reproduction) that are predictors of the likelihood of spawning activity of alligator gar.” The proposed new rule would require the executive director to provide appropriate public notice when an affected area is declared and when lawful fishing for alligator may resume, and would limit the duration of a prohibition to no more than 30 days. The department believes it is important to provide the angling public with a specific maximum timespan for the effectiveness of an action under the proposed new section. The proposed new rule is necessary to manage alligator gar populations and ensure their ability to perpetuate themselves successfully.

         The proposed amendment to §57.981, concerning Bag, Possession, and Length Limits, would alter regulations for blue and channel catfish on Louisiana border waters (Toledo Bend Reservoir, Caddo Lake, and Lower Sabine River).

         Current harvest regulations for blue and channel catfish on Louisiana border waters consist of a 50-fish daily bag limit in any combination, of which no more than five blue or channel catfish longer than or equal to 20 inches may be retained. Fish of any length may be harvested. The proposed amendment would increase the length for restriction on the harvest of five catfish from 20 to 30 inches.

         The current regulations were implemented on all border waters on September 1, 2011 in collaboration with Louisiana Department of Wildlife and Fisheries (LDWF). There have been numerous complaints from anglers, particularly on Toledo Bend Reservoir, that the regulation is too restrictive because it results in high proportions of undersized fish being caught on juglines and trotlines. In response to the complaints, supplemental creel, population sampling, and opinion surveys were conducted by TPWD and LDWF. Anglers interviewed during creel surveys caught 1,230 blue catfish, of which 46% were 20 inches or longer and 6% 30 inches or longer. LDWF sampled blue catfish with trotlines and results were similar to those obtained from Texas anglers, with 50% of the catch 20 inches or longer and 6% longer than 30 inches. An opinion survey of anglers indicated that 89% opposed the retention limit of five fish greater than 20 inches and only 3% supported it. Of those opposing, 91% favored a five-fish bag limit but wanted the length limit increased to 30 inches, while 9% supported the current length limit (20 inches) but preferred a bag limit increase to 10 fish.

         Toledo Bend Reservoir currently supports an abundant blue catfish population with stable recruitment, and trotline and jugline anglers routinely catch fish that weigh 20 pounds or more and exceed 35 inches in length). Elimination of the minimum length limit under a 50-fish daily bag limit for blue and channel catfish (in any combination) while allowing the retention of no more than five fish of 30 inches or greater in length should provide harvest opportunities that Toledo Bend Reservoir anglers desire without resulting in detrimental effects on the blue catfish population. Blue catfish abundance is high, recruitment is stable, and annual population exploitation is likely low. Additionally, the proposed amendment should not negatively affect blue catfish populations at Caddo Lake or the lower Sabine River, since minimal blue catfish fisheries exist in those places, and no effect is anticipated on the channel catfish population in any border waters because fish longer than or equal to 20 inches are scarce.

         The proposed amendment to §57.981 also would affect harvest regulations for red drum on Tradinghouse Creek Reservoir in McLennan County. The current regulations consist of a 20-inch minimum length limit, no maximum length limit, and a three-fish daily bag limit. The proposed amendment would eliminate the current requirements and implement the statewide length limits (20-inch minimum length limit, 28-inch maximum length limit, and harvest of up to two red drum 28 inches or longer per year with trophy drum tag). The daily bag limit would remain at three. Tradinghouse Creek is a 2,012-acre reservoir located in McLennan County, 10 miles east of Waco. The reservoir was impounded in 1968 and was maintained by Texas Utilities Company for the purpose of cooling a coal-fired power plant. Plant operations were downgraded to an as-needed status in 2004, and then suspended permanently in 2009. Red drum have been stocked regularly in reservoir since 1975. The change in plant operations resulted in water quality changes (lower water temperature and chloride levels) in the reservoir that almost completely eliminate the ability of red drum to survive year round. Red drum stocking was discontinued after 2010, and red drum most likely no longer exist in the reservoir. No red drum were observed during supplemental gill netting or the summer creel survey. Temperature data confirmed near-lethal water temperatures for red drum, and there were more than 40 days of temperatures low enough to stop red drum from actively feeding. Additionally, chloride levels were found to be much lower than the minimum needed to support red drum in fresh water. Consequently, special regulations are no longer needed for this freshwater population.

         The proposed amendment to §57.981 also would affect Lake Kyle in Hays County. Current regulations on Lake Kyle consist of community fishing lake (CFL)  regulations (five fish daily bag limit for channel and blue catfish, no minimum length limit, methods restricted to pole-and-line only and no more than two devices per person) and a 14 to 21 inch slot length limit for largemouth bass. The proposed amendment would prohibit the harvest of channel and blue catfish, largemouth bass, or any sunfish species. Lake Kyle is a 12-acre impoundment of Plum Creek and has been open to the public since spring 2012 under the management of the City of Kyle Parks and Recreation Department. A 14- to 21-inch slot length limit was implemented for largemouth bass in 2011 to protect the quality population surveyed at this lake. A high-quality sunfish population was also detected during initial fish surveys. However, after opening to the public, the quality of the sunfish fishery has been reduced. Public access is limited to the hours and days the park is open. All park users access the park through one entrance at the main office. This unique site provides the attributes needed to expand a quality fishing experience beyond bass to include channel catfish and sunfish.

         The proposed amendment to §57.981 also affects saltwater fisheries. The proposed amendment would alter the current regulations in effect for spotted seatrout. Until 2007, the harvest regulations for spotted seatrout were statewide, consisting of a daily bag limit of 10 fish, a 15-inch minimum size limit, and no more than one fish greater than 25 inches in length allowed to be retained. The possession limit was twice the daily bag limit. In 2007, the department became concerned about spotted seatrout populations in the Lower Laguna Madre and created regional regulations for seatrout (32 TexReg 4421). Those regulations (still in effect) reduced the bag and possession limits for spotted seatrout in the Lower Laguna Madre south of Marker 21 to a five-fish daily bag limit and a possession limit equal to the daily bag limit. The proposed amendment would move the boundary for the current regulation northward to F.M. 457 in Matagorda County. The proposed amendment would lower the daily bag limit from 10 fish to five and make the possession limit identical to the daily bag limit in the area between Marker 21 and F. M. 457 in Matagorda County.  Department sampling and survey efforts since 2007 indicate an increase in the number and size of spotted seatrout in the lower Laguna Madre, and similar results are expected within the area affected by the proposed amendment.  Surveys and modeling indicate that landings will be reduced by 13.6%, with an increase in the spawning biomass of 16.4% and a 41.8% increase in the number of spotted seatrout greater than 25 inches in length in the affected area.  Modeling has indicated a substantial improvement would be possible in a relatively short period of time, with 89% of the effects realized within three years, and 99% of the effects realized within six years.  The proposed amendment is necessary to improve the quality of fishing by increasing the number and size of spotted seatrout. The current rule governing the harvest of spotted seatrout in the Lower Laguna Madre is referred to as a special regulation. Because the proposed amendment would enlarge the geographical extent of the special regulation to encompass most of the Texas coast, the proposed amendment would designate the harvest regulations in the area south of F.M. 457 as the statewide standard, and the harvest rules north of F.M. 457 as the special regulation.

         The proposed amendment to §57.981(c)(5) and the proposed amendment to §57.992, concerning Bag, Possession, and Length Limits, would affect provisions governing the recreational take of flounder. The last three years of fishery-independent survey data (gill nets) indicate a downward population trend in the flounder fishery.  While fall gill net sampling data showed an increase in abundance between 2009 and 2011, the two most recent years (2012, 2013) show a decline by 76%, returning to the lowest abundance recorded since the department began sampling in 1982.  Based on this recent downward trend staff has determined that to stabilize or reverse this trend additional measures should be implemented to protect and replenish spawning stock biomass during the flounder spawning run. Current harvest regulations for flounder consist of a 14-inch minimum size limit and a 5-fish daily bag and possession limit for recreational take and a 30-fish daily bag and possession limit for commercial take, except during the month of November. During the month of November, recreational and commercial take are restricted to two flounder per day and lawful means are restricted to pole-and-line only.  The proposed amendment would extend the two-fish bag limit into the first two weeks of December, but during that two-week time, any legal means could be used to harvest flounder.

2. Fiscal Note.

         Ken Kurzawski, Program Director, Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

          The department has determined that other than the proposed rules affecting flounder, the rules will not directly affect small businesses and/or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006, except with respect to the portions of the proposed amendment to §57.992 that affect commercial take of flounder.

         The proposed amendment affecting flounder will have an adverse economic impact on small or micro-businesses engaged in commercial fisheries operations. There are two primary groups of small or micro-businesses in the flounder fishery that are directly affected by the proposed rules: those who directly target flounder for harvest and those who harvest flounder as bycatch (incidental to other harvest operations). Based on permit data, the department has determined that all persons who take flounder for commercial purposes in Texas qualify as microbusinesses.

         The proposed rules affecting the commercial harvest of flounder would extend the two-fish bag limit (currently in effect only in November) into the first two weeks of December.  In addition, the November-only restriction of gear to pole-and-line only would be eliminated and flounder could be taken by any legal means during the first two weeks in December.

         The department has analyzed the adverse economic impact on small and micro-businesses affected by the proposed rules by addressing the historical number of commercial trips resulting in the landing of flounder during December.  While commercial harvest may continue to occur under the proposed rules during the first two weeks in December, in an effort to ensure that all possible direct impacts are considered, the department assumes for purposes of the small and micro-business analyses that there would be no commercial harvest during the first two weeks in December under the proposal.

         Also, since department’s landing data is collected and assembled on a monthly basis, to determine the estimated historical harvest during the first two weeks of December, the department assumes that the December sales occurred during the first two weeks of December.

         Between license years (LY) 2010 (Sept. 1, 2009 – Aug. 31, 2010) and 2013 (Sept. 1, 2012 – Aug. 31, 2013), December flounder landings were reported by 12 to 33 (average of 23) commercial finfish fisherman.  Therefore, the department estimates that the proposed rule would impact between 12 to 33 small or micro-businesses.

         The following analysis estimates the potential adverse economic impacts of the proposed amendment based on landings data for the lowest (LY2011) and highest (LY2012) years of harvest under the current rule which imposes a two-fish bag limit in November, harvest by pole-and-line only.  An average of the last four years (LY2010 – LY2013) is also shown.

         In December 2010 (LY2011), the lowest year of harvest, there were a total of 52 trips in December by 16 commercial finfish fisherman.  These trips resulted in 2,306.41 pounds of flounder landed, for an average catch per trip of 44.35 pounds.  Using the average reported price for December, 2010 (LY2011), of $3.09 per pound, the total aggregate sales for December 2010 for all small or micro-businesses was $7,126.80.  Therefore, the proposed amendment, if adopted, could result in an aggregate loss in sales of ½ of the total aggregate sales or $3,563.40 (for all small or micro-businesses affected by the proposed rule. Therefore, using LY2011 data, the greatest adverse economic impact to any small or microbusiness affected by the rule would be $3,563.40 (if all flounder were landed by one licensee) and the average adverse economic impact to a small or micro-business of the proposed rule would be $222.71 ($3563.40 divided by 16 commercial finfish fisherman reporting trips in December).

         In December 2011 (LY2012), the highest year of harvest, there were a total of 166 trips in December by 33 commercial finfish fisherman, resulting in 14,350.79 pounds of flounder landed, for an average catch per trip of 86.45 pounds.  Using the average reported price for December, 2011 (LY2012), of $2.52 per pound, the total aggregate sales for December 2011 for all small or micro-businesses was $36,163.99.  Therefore, the proposed amendment, if adopted, could result in an aggregate loss in sales of ½ of the total aggregate sales or $18,081.99 for all small or micro-businesses affected by the proposed rule. Therefore, using LY2012 data, the greatest adverse economic impact to any small or microbusiness affected by the rule would be $18,081.99 (if all flounder were landed by one licensee) and the average adverse economic impact to a small or micro-business of the proposed rule would be $547.91 ($18,081.99 divided by 33 commercial finfish fisherman reporting trips in December).

         On average, between LY2010 and LY2013 there were 96.5 trips in December, with an average landing of 6,998.4 pounds of flounder.  During that same period of time there were an average of 23 commercial finfish fisherman.  Using the average December reported price for LY10-13 of $2.88 per pound, the total aggregate average sales between December (LY2010) and December 2012 (LY2013) for all small or micro-businesses was $20,155.39.  The aggregate annual loss in sales for all small or micro-businesses affected by the proposed rule would be one-half the total aggregate average or $10,077.70.  Therefore, using this 4-year average, the average adverse economic impact to a small or micro-business of the proposed rule would be a loss of $438.16.

         There will also be adverse economic impacts for small or micro-businesses that land flounder as incidental catch (bycatch); however, the probable adverse economic impacts on these small or micro-businesses would be less than impacts on businesses fishing for flounder under a finfish fisherman’s license (i.e., less than $438.16).

         In developing the proposal to address the downward trends in flounder populations, the department considered several alternatives, in addition to the  proposal contained in this rulemaking, to minimize adverse impacts on commercial finfish fishermen.  The department considered: (1) expansion of the November regulations into the last two weeks of October; (2) expansion of the November regulations into the last week of October; (3) expansion of the November regulations into the first week of December; (4) expansion of the November regulations into the first two weeks of December; (5) a combination of options 1-4 above (i.e. the last week of October and the first week of December); and (6) expansion of the November regulations into the entire month of December; (7) no action. The department believes that given the significant recent downward trend in southern flounder, the “no action” alternative would not provide the needed protections for the fishery.  The department believes that expanding only the reduced bag limit of 2-fish into the first two weeks of December would best balance competing interests in achieving the objective of the proposed amendment while being less burdensome to anglers.

         (D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

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

         (F) 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 rules.

4. Request for Public Comment

         Comments on the proposal may be submitted to Ken Kurzawski (Inland Fisheries) at (512) 389-4591, e-mail: ken.kurzawski@tpwd.texas.gov; Jeremy Leitz (Coastal Fisheries) at (512) 389-4333, e-mail: jeremy.leitz@tpwd.texas.gov; or Brandi Reeder (Law Enforcement) at (512) 389-4853, e-mail brandi.reeder@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

         The new rules and amendment are proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take, or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed; and §67.004, which requires the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.

         The proposed new rules and amendment affect Parks and Wildlife Code, Chapters 66, and 67.

         §57.973. Devices, Means and Methods.

                 (a)  In fresh water only, it is unlawful to fish with more than 100 hooks on all devices combined.

                 (b) Game and non-game fish may be taken only by pole and line in or on:

                         (1) community fishing lakes;

                         (2) sections of rivers lying totally within the boundaries of state parks;

                         (3) any dock, pier, jetty, or other manmade structure within a state park;

                         (4) Canyon Lake Project #6 (Lubbock County);

                         (5) Lake Pflugerville (Travis County);

                         (6) [the] North Concho River (Tom Green County) from O.C. Fisher Dam to Bell Street Dam;

                         (7) [the] South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam; and

                         (8) Wheeler Branch (Somervell County).

                 (c) No person may employ more than two pole-and-line devices at the same time on:

                         (1) any dock, pier, jetty, or other manmade structure within a state park; [and]

                          (2) community fishing lakes that are not within or part of a state park;

                         (3) Canyon Lake Project #6 (Lubbock County);

                         (4) North Concho River (Tom Green County) from O. C. Fisher Dam to Bell Street Dam; and

                         (5) South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam.

                 (d) It is unlawful to take, attempt to take, or possess fish caught in public waters of this state by any device, means, or method other than as authorized in this subchapter.

                 (e) In salt water only, it is unlawful to fish with any device that is marked with a buoy made of a plastic bottle(s) of any color or size.

                 (f) Aquatic life (except threatened and endangered species) not addressed in this subchapter may be taken only by hand or with the devices defined as lawful for taking fish, crabs, oysters, or shrimp in places and at times as provided by the Parks and Wildlife Commission and regulations adopted by the Parks and Wildlife Code.

                 (g) Device restrictions. Devices legally used for taking fresh or saltwater fish or shrimp may be used to take crab as authorized by this subchapter.

                         (1) – (8) (No change.)

                         (9) Jugline. For use in fresh water only. Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a jugline. It is unlawful to use a jugline:

                                  (A) with invalid gear tags. Gear tags must be attached within six inches of the free-floating device, are valid for 10 days after the date set out, and must include the number of the permit to sell non-game fish taken from fresh water, if applicable;

                                  (B) for commercial purposes that is not marked with an orange free-floating device;

                                   (C) for non-commercial purposes that is not marked with a [white] free-floating device of any color other than orange;

                                  (D) in Lake Bastrop in Bastrop County, Bellwood Lake in Smith County, Lake Bryan in Brazos County, Boerne City Park Lake in Kendall County, Lakes Coffee Mill and Davy Crockett in Fannin County, Dixieland Reservoir in Cameron County, Gibbons Creek Reservoir in Grimes County, Lake Naconiche in Nacogdoches County, and Tankersley Reservoir in Titus County.

                          (10) – (12) (No change.)

                         (13)  Pole and line.

                                  (A)- (B) (No change.)

                                  (C) Game and non-game fish may be taken by pole and line, except that in the Guadalupe River in Comal County from the second bridge crossing on River Road upstream to a point 800 yards downstream of the Canyon Lake dam outlet[the easternmost bridge crossing on F.M. Road 306] , rainbow and brown trout may not be retained when taken by any method except artificial lures. Artificial lures cannot contain or have attached either whole or portions, living or dead, of organisms such as fish, crayfish, insects (grubs, larvae, or adults), or worms, or any other animal or vegetable material, or synthetic scented materials. This does not prohibit the use of artificial lures that contain components of hair or feathers. It is an offense to possess rainbow and brown trout while fishing with any other device in that part of the Guadalupe River defined in this paragraph.

                         (14) — (23) (No change.)

         §57.977. Spawning Event Closures.

                 (a) Definitions. For purposes of this section, the following terms shall have the following meanings:

                         (1) Affected area—

                                  (A) an area of fresh water containing environmental conditions conducive for alligator gar spawning; or

                                  (B) an area of fresh water where alligator gar are in the process of spawning activity.

                         (2) Environmental conditions conducive for alligator gar spawning —the components of a hydrological state (including but not limited to water temperatures, timing and duration of flood events, river discharge rates, and any other factors that are known to be conducive to alligator gar reproduction) that are predictors of the  likelihood of spawning activity of alligator gar.

                 (b) The Executive Director shall prohibit the take or attempted take of alligator gar in an affected area and shall provide appropriate notice to the public when the take or attempted take of alligator gar in an affected area is prohibited. The Executive Director shall provide appropriate public notice as to when lawful fishing in the affected area or areas may resume. An action under this section shall not exceed 30 days in duration.

                 (c) No person may take or attempt to take alligator gar by any means in an affected area declared by the Executive Director under subsection (b) of this section until the Executive Director gives notice that the lawful take of alligator gar may resume.

         §57.978.  Violations and Penalties. The penalties for a violation of this subchapter are prescribed by Parks and Wildlife Code.

         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

         The repeal is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to take or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.

         The proposed repeal affects Parks and Wildlife Code, Chapter 61.

         §57.977. Violations and Penalties.

         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

         §57.981. Bag, Possession, and Length Limits.

                 (a) – (b) (No change.)

Figure: 31 TAC §57.981(c)(5)
Species Daily Bag Minimum Length (Inches) Maximum Length (Inches)
Amberjack, greater. 1 34 No limit
Bass: Largemouth, smallmouth, spotted and Guadalupe bass. 5 (in any combination)
Largemouth and smallmouth bass. 14 No limit
Bass, striped, its hybrids, and subspecies. 5 (in any combination) 18 No limit
Bass, white. 25 10 No limit
Catfish: channel and blue catfish, their hybrids, and subspecies. 25 (in any combination) 12 No limit
Catfish, flathead. 5 18 No limit
Catfish, gafftopsail. No limit 14 No limit
Cobia. 2 37 No limit
Crappie: white and black crappie, their hybrids, and subspecies. 25 (in any combination) 10 No limit
Drum, black. 5 14 30*
*Special Regulation: One black drum over 52 inches may be retained per day as part of the five-fish bag limit.
Drum, red. 3* 20 28*
*Special Regulation: During a license year, one red drum over the stated maximum length limit may be retained when affixed with a properly executed Red Drum Tag, a properly executed Exempt Red Drum Tag or with a properly executed Duplicate Exempt Red Drum Tag and one red drum over the stated maximum length limit may be retained when affixed with a properly executed Bonus Red Drum Tag. Any fish retained under authority of a Red Drum Tag, an Exempt Red Drum Tag, a Duplicate Exempt Red Drum Tag, or a Bonus Red Drum Tag may be retained in addition to the daily bag and possession limit as stated in this section.
Flounder: all species, their hybrids, and subspecies. 5* 14 No limit
*Special Regulation: During the month of November, lawful means are restricted to pole-and-line only and the bag and possession limit for flounder is two. For the first 14 days in December, the bag and possession limit is two, and flounder may be taken by any legal means.
Gar, alligator.* 1 No limit No limit
*Special Regulation: Between May 1 and May 31 no person shall take alligator gar in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge.
Grouper, gag. 2 22 No limit
Grouper, goliath. 0
Mackerel, king. 2 27 No limit
Mackerel, Spanish. 15 14 No limit
Marlin, blue. No limit 131 No limit
Marlin, white. No limit 86 No limit
Mullet: all species, their hybrids, and subspecies. No limit No limit *
*Special Regulation: During the period October through January, no mullet more than 12 inches in length may be taken from public waters or possessed on board a vessel.
Sailfish. No limit 84 No limit
Saugeye. 3 18 No limit
Seatrout, spotted 5* 15 25**
*Special Regulation: The daily bag limit of five is the possession limit allowed for spotted seatrout. **Special Regulation: One spotted seatrout greater than 25 inches may be retained per day.
Shark: all species, their hybrids, and subspecies other than Atlantic sharpnose, blacktip, and bonnethead sharks. 1* 64* No limit
Atlantic sharpnose, blacktip, and bonnethead sharks. 1* 24 No limit
*Special Regulation: The take of the following species of sharks from the waters of this state is prohibited and they may not be possessed on board a vessel at any time: Atlantic angel, Basking, Bigeye sand tiger, Bigeye sixgill, Bigeye thresher, Bignose, Caribbean reef, Caribbean sharpnose, Dusky, Galapagos, Longfin mako, Narrowtooth, Night, Sandbar, Sand tiger, Sevengill, Silky, Sixgill, Smalltail, Whale, and White.
Sheepshead. 5 15 No limit
Snapper, lane. No limit 8 No limit
Snapper, red. 4* 15 No limit
*Special Regulation: Red snapper may be taken using pole and line, but it is unlawful to use any kind of hook other than a circle hook baited with natural bait.
Snapper, vermilion. No limit 10 No limit
Snook. 1 24 28
Tarpon. 1 85 No limit
Triggerfish, gray. 20 16 No limit
Trout: rainbow and brown trout, their hybrids, and subspecies. 5 (in any combination) No limit No limit
Tripletail. 3 17 No limit
Walleye. 5* No limit No limit
*Special Regulation: Two walleye of less than 16 inches may be retained per day.

            (d) Exceptions to statewide daily bag, possession, and length limits shall be as follows:

                         (1) Freshwater species.

Figure: 31 TAC §57.981(d)(1)
Species and Location (County) Daily Bag Minimum Length (Inches) Special Regulation
Bass: largemouth, smallmouth, spotted and Guadalupe bass, their hybrids, and subspecies.
In all waters in the Lost Maples State Natural Area (Bandera). 0 No limit Catch and release only.
Bass: largemouth and spotted.
Lake Alan Henry. 5 No limit It is unlawful to retain more than two bass of less than 18 inches in length.
Caddo Lake (Marion and Harrison). 8 (in any combination with spotted bass) 14 — 18 inch slot limit (largemouth bass); no limit for spotted bass. It is unlawful to retain largemouth bass between 14 and 18 inches. No more than 4 largemouth bass 18 inches or longer may be retained. Possession limit is 10.
Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge and Toledo Bend Reservoir (Newton, Sabine, and Shelby). 8 (in any combination with spotted bass) 14 (largemouth bass); no limit for spotted bass. Possession limit is 10.
Bass: largemouth.
Conroe (Montgomery and Walker), Granbury (Hood), Possum Kingdom (Palo Pinto, Stephens, Young), and Ratcliff (Houston). 5 16
Lakes Kurth (Angelina) and  Nacogdoches (Nacogdoches). 5 It is unlawful to retain largemouth bass of 16 inches or greater in length. Largemouth bass 24 inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing, but may not be removed from the immediate vicinity of the lake. After weighing, the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.
Lakes Bellwood (Smith), Braunig (Bexar), Bright (Williamson), Brushy Creek (Williamson), Bryan (Brazos), Calaveras (Bexar), Casa Blanca (Webb), Cleburne State Park (Johnson), Cooper (Delta and Hopkins), Fairfield (Freestone), Gilmer (Upshur), [,] Marine Creek Reservoir (Tarrant), Meridian State Park (Bosque), Naconiche (Nacogdoches), Old Mount Pleasant City (Titus), Pflugerville (Travis), Rusk State Park (Cherokee), and Welsh (Titus). 5 18
[Nelson Park Lake (Taylor) and ]Buck Lake (Kimble), Lake Kyle (Hays), and Nelson Park Lake (Taylor). 0 No limit Catch and release and only.
Lake Jacksonville (Cherokee) and O.H. Ivie Reservoir (Coleman, Concho, and Runnels). 5 No limit It is unlawful to retain more than two bass of less than 18 inches in length.
Purtis Creek State Park Lake (Henderson and Van Zandt), and Raven (Walker). 0 No limit Catch and release only except that any bass 24 inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing, but may not be removed from the immediate vicinity of the lake. After weighing, the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.
Lakes Bridgeport (Jack and Wise), Burke- Crenshaw (Harris), Davy Crockett (Fannin), Grapevine (Denton and Tarrant), Georgetown (Williamson), Madisonville (Madison), San Augustine City (San Augustine), and Sweetwater (Nolan). 5 14 — 18 inch slot limit It is unlawful to retain largemouth bass between 14 and 18 inches in length.
Lakes Athens (Henderson), Bastrop (Bastrop), Buescher State Park (Bastrop), Houston County (Houston), Joe Pool (Dallas, Ellis, and Tarrant), Kyle (Hays), Lady Bird (Travis) Mill Creek (Van Zandt), Murvaul (Panola), Pinkston (Shelby), Timpson (Shelby), Walter E. Long (Travis) and Wheeler Branch (Somervell). 5 14 — 21 inch slot limit It is unlawful to retain largemouth bass between 14 and 21 inches in length. No more than 1 bass 21 inches or greater in length may be retained each day.
Lakes Fayette County (Fayette), Gibbons Creek Reservoir (Grimes), and Monticello (Titus). 5 14 — 24 inch slot limit It is unlawful to retain largemouth bass between 14 and 24 inches in length. No more than 1 bass 24 inches or greater in length may be retained each day.
Lake Fork (Wood, Rains and Hopkins). 5 16 — 24 inch slot limit It is unlawful to retain largemouth bass between 16 and 24 inches in length. No more than 1 bass 24 inches or greater in length may be retained each day.
Bass: smallmouth.
Lakes O. H. Ivie (Coleman, Concho, and Runnels), Devil’s River (Val Verde) from State Highway 163 bridge crossing near Juno downstream to Dolan Falls, and Wheeler Branch (Somervell). 3 18
Lake Meredith (Hutchinson, Moore, and Potter). 3 12 — 15 inch slot limit It is unlawful to retain smallmouth bass between 12 and 15 inches in length.
Bass: striped and white bass, their hybrids, and subspecies.
Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge and Toledo Bend Reservoir (Newton, Sabine, and Shelby). 5 No limit No more than 2 striped bass 30 inches or greater in length may be retained each day.
Lake Texoma (Cooke and Grayson). 10 (in any combination) No limit No more than 2 striped or hybrid striped bass 20 inches or greater in length may be retained each day. Striped or hybrid striped bass caught and placed on a stringer, in a live well or any other holding device become part of the daily bag limit and may not be released. Possession limit is 20.
Red River (Grayson) from Denison Dam downstream to and including Shawnee Creek (Grayson). 5 (in any combination) No limit Striped bass caught and placed on a stringer, in a live well or any other holding device become part of the daily bag limit and may not be released.
Trinity River (Polk and San Jacinto) from the Lake Livingston dam downstream to the F.M. 3278 bridge. 2 (in any combination) 18
Bass: white.
Lakes Caddo (Harrison and Marion), Texoma (Cooke and Grayson) and Toledo Bend (Newton, Sabine, and Shelby), and Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge. 25 No limit
Carp: common.
Lady Bird Lake (Travis). No limit No limit It is unlawful to retain more than one common carp of 33 inches or longer per day.
Catfish: blue.
Lakes Lewisville (Denton), Richland- Chambers (Freestone and Navarro), and Waco (McLennan). 25 (in any combination with channel catfish) 30-45-inch slot limit It is unlawful to retain blue catfish between 30 and 45 inches in length. No more than one blue catfish 45 inches or greater in length may be retained each day.
Catfish: channel and blue catfish, their hybrids, and subspecies.
Lake Kyle (Hays) 0 No limit Catch and release and only.
Lake Livingston (Polk, San Jacinto, Trinity, and Walker). 50 (in any combination) 12
Trinity River (Polk and San Jacinto) from the Lake Livingston dam downstream to the F.M. 3278 bridge. 10 (in any combination) 12 No more than 2 channel or blue catfish 24 inches or greater in length may be retained each day.
Lakes [Caddo (Harrison and Marion), ]Kirby (Taylor)[,] and Palestine (Cherokee, Anderson, Henderson, and Smith)[, and Toledo Bend (Newton, Sabine, and Shelby), Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge]. 50 (in any combination) No limit No more than five catfish 20 inches or greater in length may be retained each day. Possession limit is 50.
Lakes Caddo (Harrison and Marion) and Toledo Bend (Newton, Sabine, and Shelby), and Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge. 50 (in any combination) No limit No more than five catfish 30 inches or greater in length may be retained each day. Possession limit is 50.
Lake Texoma (Cooke and Grayson). 15 (in any combination) 12 No more than one blue catfish 30 inches or greater in length may be retained each day.
Canyon Lake Project #6 (Lubbock), North Concho River (Tom Green) from O.C. Fisher Dam to Bell Street Dam, and South Concho River (Tom Green) from Lone Wolf Dam to Bell Street Dam. 5 (in any combination) No limit
Community fishing lakes. 5 (in any combination) No limit
Bellwood (Smith), Dixieland (Cameron), and Tankersley (Titus). 5 (in any combination) 12
Catfish: flathead.
Lake Texoma (Cooke and Grayson) and the Red River (Grayson) from Denison Dam to and including Shawnee Creek (Grayson). 5 20
Lakes Caddo (Harrison and Marion), Toledo Bend (Newton, Sabine, and Shelby), and Sabine River (Newton and Orange) from Toledo Bend dam to the I.H. 10 bridge. 10 18 Possession limit is 10.
Crappie: black and white crappie, their hybrids and subspecies.
Caddo Lake (Harrison and Marion), Toledo Bend Reservoir (Newton, Sabine, and Shelby), and Sabine River (Newton and Orange) from Toledo Bend dam to the I.H. 10 bridge. 25 (in any combination) No limit
Lake Fork (Wood, Rains, and Hopkins) and Lake O’ The Pines (Camp, Harrison, Marion, Morris, and Upshur). 25 (in any combination) 10 From December 1, through the last day in February, there is no minimum length limit. All crappie caught during this period must be retained.
Lake Texoma (Cooke and Grayson). 37 (in any combination) 10 Possession limit is 50.
Drum, red.
Lakes Braunig and Calaveras (Bexar), and Coleto Creek Reservoir (Goliad and Victoria), Fairfield (Freestone), [and Tradinghouse Creek (McLennan)]. 3 20 No maximum length limit.
Shad, gizzard and threadfin.
The Trinity River below Lake Livingston in Polk and San Jacinto Counties. 500 (in any combination) No limit Possession limit 1,000 in any combination.
Sunfish: all species    
Lake Kyle (Hays) 0 No limit Catch and release and only.
Trout: rainbow and brown trout, their hybrids, and subspecies.
Guadalupe River (Comal) from the second bridge crossing on the River Road upstream to the easternmost bridge crossing on F.M. 306. 1 18
Guadalupe River (Comal) from the easternmost bridge crossing on F.M. 306 upstream to 800 yards below the Canyon Lake dam. 5 12 — 18 inch slot limit It is unlawful to retain trout between 12 and 18 inches in length. No more than one trout 18 inches or greater in length may be retained each day.
Walleye.
Lake Texoma (Cooke and Grayson). 5 18

  (2) Saltwater species.

Figure: 31 TAC §57.981(d)(2)
Species Daily Bag Minimum Length (Inches) Special Regulation
Seatrout, spotted.
All inside waters from F.M. 457 northward to the Louisiana border[of the Lower Laguna Madre south of marker 21]. 10[5*] 15 25*[25**]
*[Special Regulation: The daily bag limit of 5 is the possession limit allowed for spotted seatrout.]
*Special[**Special] Regulation: One spotted seatrout greater than 25 inches may be retained per day.

         The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to take or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed; and §67.004, which requires the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.

         The proposed amendment affects Parks and Wildlife Code, Chapters 61 and 67.

         §57.992. Bag, Possession, and Length Limits.

                 (a) (No change.)

                 (b) There are no bag, possession, or length limits on game fish, non-game fish, or shellfish, except as otherwise provided in this subchapter.

                         (1) – (3) (No change.)

                         (4) The statewide daily bag and length limits for commercial fishing shall be as follows.

Figure: 31 TAC §57.992(b)(4)
Species and Location Daily Bag Minimum Length (Inches) Maximum Length (Inches)
Amberjack, greater. 1 34 No limit
Catfish: channel and blue catfish, their hybrids, and subspecies. 25 (in any combination)* 14 No limit
*Special Regulation: In Lake Livingston (Polk, San Jacinto, Trinity, and Walker counties), the daily bag limit for channel and blue catfish is 50 in any combination. In lakes lying totally within a state park and community fishing lakes, the daily bag limit for channel and blue catfish is five in any combination.
Catfish, gafftopsail. No limit 14 No limit
Cobia. 2 37 No limit
Drum, black. No limit 14 30
Flounder: all species, their hybrids, and subspecies. 30* 14 No limit
*Special Regulation: The daily bag and possession limit for the holder of a valid Commercial Finfish Fisherman’s license is 30 flounder, except on board a licensed commercial shrimp boat. During the month of November, lawful means are restricted to pole-and-line only and the bag and possession limit for flounder is two. For the first 14 days in December, the bag and possession limit is two, and flounder may be taken by any legal means.
Gar, alligator.* 1 No limit No limit
*Special Regulation: Between May 1 and May 31 no person shall take alligator gar in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge.
Grouper, gag. 2 22 No limit
Grouper, goliath. 0
Mackerel, king. 2 27 No limit
Mackerel, Spanish. 15 14 No limit
Mullet: all species, their hybrids, and subspecies. No limit No limit *
*Special regulation: During the period October through January, no mullet more than 12 inches in length may be taken from public waters or possessed on board a vessel.
Shad: gizzard and threadfin. No limit No limit No limit*
*In the Trinity River below Lake Livingston in Polk and San Jacinto counties, the daily bag for shad is 500 and the possession limit is 1,000 fish in any combination.
Shark: all species, their hybrids, and subspecies other than Atlantic sharpnose, blacktip, and bonnethead sharks. 1* 64 No limit
Atlantic sharpnose, blacktip, and bonnethead sharks. 1* 24 No limit
*Special Regulation: The take of the following species of sharks from the waters of this state is prohibited and they may not be possessed on board a vessel at any time: Atlantic angel, Basking, Bigeye sand tiger, Bigeye sixgill, Bigeye thresher, Bignose, Caribbean reef, Caribbean sharpnose, Dusky, Galapagos, Longfin mako, Narrowtooth, Night, Sandbar, Sand tiger, Sevengill, Silky, Sixgill, Smalltail, Whale, and White.
Sheepshead. No limit 15 No limit
Snapper, lane. No limit 8 No limit
Snapper, red. 4* 15 No limit
*Special Regulation: Red snapper may be taken using pole and line, but it is unlawful to use any kind of hook other than a circle hook baited with natural bait.
Snapper, vermilion. No limit 10 No limit
Triggerfish, gray. 20 16 No limit
Tripletail. 3 17 No limit

         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.

         Issued in Austin, Texas on


Commission Agenda Item No. 5
Exhibit B

STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules. The proposed new rule would close approximately 434 acres to oyster harvesting in the East Bay Approved Area in Galveston Bay and a 54-acre area encompassing Half-Moon Reef in Matagorda Bay for two harvest seasons, which will allow for scheduled oyster cultch plantings to repopulate these areas with oysters and for those oysters to reach market size. Oyster cultch is the material to which oyster spat (juvenile oysters) attach in order to create an oyster bed. Private oyster leases in East Galveston Bay would not be affected by the closure.

         Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked. When Hurricane Ike made landfall on the upper Texas coast on September 13, 2008, it caused extensive damage to the oyster reef habitat in Galveston Bay and especially East Bay. The damage was mainly caused by siltation on the reefs and the deposition of sediment on reef substrate.  This siltation does not allow for spat to set on the reef and begin the process of oyster reef repopulation. Sidescan sonar surveys conducted by the department indicated an approximately 50-60% loss of oyster habitat in Galveston Bay due to heavy sedimentation/siltation and debris over consolidated reefs. The impact was greatest in East Bay, where over 80% of oyster habitat was lost.

         The department’s oyster habitat restoration efforts to date in East Bay have resulted in approximately 640 acres of sediment/silt-covered oyster habitat returned to productive habitat within the bay. Approximately $4 million in grants and other funding has been secured by the department to conduct cultch planting on approximately 170 acres of additional sediment/silt-covered oyster habitat in East Bay.

         The Half-Moon reef complex lies off Palacios Point in Matagorda County between Tres Palacios Bay and the eastern arm of Matagorda Bay and was formerly a highly productive oyster reef within the Lavaca-Matagorda Estuary.  The reef has been degraded due to a variety of stressors and as a result The Nature Conservancy (TNC) has secured funding to restore up to 40 acres within the historical reef footprint and within the 54-acre area proposed for temporary closure.  The proposed closure area will provide a small buffer around the restoration site.

         The project will consist of the emplacement of three-dimensional structures utilizing graded limestone that will function as cultch for oyster populations and is completed funded by TNC.

          The department has determined that the 434-acres encompassing the oyster restoration sites in the East Bay Approved Area in Galveston Bay and the 54-acre area encompassing Half-Moon Reef in Matagorda Bay must be closed to oyster harvest for at least two years in order to repopulate these reefs, allow for post-construction monitoring for success, and to allow oysters to reach market size.

2. Fiscal Note.

         Lance Robinson, Coastal Fisheries Division, Regional Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state or local governments as a result of enforcing or administering the rule.  The department will incur costs associated with the installation and maintenance of corner marker buoys used to delineate the closure boundaries. Over the two-year closure period the department estimates an expense of approximately $30,000 to $35,000.  The initial cost of installation is estimated to be $27,000 ($1,500 per buoy, plus anchors and corners).

3. Public Benefit/Cost Note.

         Mr. Robinson also has determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach market size and subsequent recreational and commercial harvest.

         (B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendment as proposed because there has been no commercial harvest of oysters occurring in the areas affected by the proposed rule since at least 2008.

         (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 rules.

         (E) The department has determined that the proposed rules are in compliance with Government Code §505.11 (Actions and Rules Subject to the Coastal Management Program) and §505.22 (Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program).

3. Request for Public Comment.

         Comments on the proposal may be submitted to Jeremy Leitz, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4333; email: jeremy.leitz@tpwd.texas.gov.

4. Statutory Authority

         These new rules are proposed under Parks and Wildlife Code, §76.115, which authorizes the commission to close an area to the taking of oysters when the area is to be reseeded or restocked.

         The proposed rules affect Parks and Wildlife Administrative Code, Chapter 58.

         §58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

                 (a) – (b) (No change.)

                 (c) Area Closures.

                         (1) There is no open public season for oysters from areas declared to be restricted or prohibited by the Department of State Health Services or areas closed by the commission.

                                  (A)[(1)] The director may close an area to the taking of oysters upon finding that the area is being overworked or damaged or the area is to be reseeded or restocked, and may re-open the areas as provided in Parks and Wildlife Code, §76.115.

                                  (B)[(2)] An order to close an area shall state the criteria used by the director to determine that the closure is warranted.

                                  (C)[(3)] The department shall consult with members of the oyster industry regarding the management of oyster beds in the state.

                                  (D)[(4)] For the purposes of this section an area will include those designated by the Department of State Health Services as "Approved" and "Conditionally Approved" or other areas based on evaluation by the department.

                                  (E)[(5)] No person may harvest oysters in an area closed by order of the commission or the executive director.

                         (2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of this paragraph cease effect on November 1, 2016.

                                  (A) Galveston Bay.

                                          (i) Hannah Reef. The area within the boundaries of a line beginning  at 29° 29’ 17.7”N, 94° 42’ 43.9”W (corner marker buoy A); to 29° 29’ 2.9”N, 94° 42’ 9.7”W (corner marker buoy B); thence to 29° 28’ 44.3”N, 94° 42’ 16.8”W (corner marker buoy C); thence to (29° 29’ 0.6”N, 94° 42’ 52.8”W (corner marker buoy D); and thence back to corner marker buoy A.

                                          (ii) Middle Reef (CCA). The area within the boundaries of a line beginning  at 29° 30’ 49.3”N, 94° 39’ 53.2”W (corner marker buoy A); thence , to 29° 30’ 39.3”N, 94° 39’ 40.9”W (corner marker buoy B ); thence to 29° 30’ 35.0”N, 94° 39’ 46.1”W (corner marker buoy C); thence to 29° 30’ 45.1”N, 94° 39’ 58.2”W (corner marker buoy D); and thence and back to corner marker buoy A.

                                          (iii) Middle Reef. The area of Middle Reef contained area within the boundaries of a line beginning  at 29° 30’ 13.5”N, 94° 39’ 22.4”W (corner marker buoy A); thence to 29° 30’ 2.3”N, 94° 39’ 10.8”W (corner marker buoy B); thence to 29° 29’ 58.2”N, 94° 39’ 15.8”W (corner marker buoy C); thence to 29 ° 30’ 10.0”N, 94° 39’ 27.9”W (corner marker buoy D); and thence back to corner marker buoy A.

                                          (iv) Pepper Grove Reef. The area within the boundaries of a line beginning at 29° 29’ 49.6”N, 94° 40’ 4.4”W (corner marker buoy A); thence to 29° 29’ 50.0”N, 94° 39’ 27.8”W (corner marker buoy B); thence to 29° 29’ 21.8”N, 94° 39’ 27.3”W (corner marker buoy C); thence to 29° 29’ 21.4”N, 94° 39’ 42.6”W (corner marker buoy D); thence to 29° 29’ 15.6”N, 94° 39’ 42.5”W (corner marker buoy E); thence to 29° 29’ 15.4”N, 94° 40’ 4.0”W (corner marker buoy F); and thence back to corner marker buoy A.

                                 (B) Matagorda Bay — Half-Moon Reef. The area within the boundaries of a line beginning at 28° 34’ 18.8”N, 96° 14’ 08.4”W (corner marker buoy A); thence to 28° 34’ 15.7N, 96° 13’ 59.4”W (corner marker buoy B); thence to 28° 33’ 53.8”N, 96° 14’ 19.5W (corner marker buoy C); thence to 28° 33’ 57.0”N, 96° 14’ 28.5”W (corner marker buoy D); and thence to 28° 34’ 18.8”N, 96° 14’ 08.4”W (corner marker buoy A).

         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.

         Issued in Austin, Texas, on


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