|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to the regulation of oyster resources. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Section 76.001, Parks and Wildlife Code, is |
|
amended by adding Subdivisions (1-a), (1-b), (1-c), (2-a), (4), and |
|
(5) and amending Subdivision (2) to read as follows: |
|
(1-a) "Cultivated oyster bed" means an oyster bed that |
|
is planted by a person for the purpose of oyster resources |
|
management, including the growing, transplanting, or harvesting of |
|
oysters. |
|
(1-b) "Location by the department" means the issuance |
|
by the department of a certificate that authorizes a locator to |
|
plant or cultivate an oyster bed on state-owned submerged land. |
|
(1-c) "Locator" means a person who holds a certificate |
|
of location issued by the department under Section 76.012. |
|
(2) "Natural oyster bed" means an area that is not a |
|
cultivated oyster bed where at least five barrels of oysters are |
|
found within 2,500 square feet of any position on a reef or bed. |
|
(2-a) "Non-state-owned submerged land" means submerged |
|
land that has been conveyed to another person and to which the state |
|
does not hold title, including land described by Sections 76.004(a) |
|
and 76.022. |
|
(4) "Private oyster bed" means an oyster bed that is: |
|
(A) located on land that is non-state-owned |
|
submerged land; |
|
(B) located on state-owned submerged land leased |
|
by a locator; or |
|
(C) a cultivated oyster bed, including a |
|
cultivated oyster bed on land subject to riparian rights under |
|
Section 76.004(b) or (c). |
|
(5) "State-owned submerged land" has the meaning |
|
assigned by Section 11.0131(a), Natural Resources Code. The term |
|
does not include non-state-owned submerged land. |
|
SECTION 2. Section 76.002, Parks and Wildlife Code, is |
|
amended to read as follows: |
|
Sec. 76.002. [DESIGNATION OF] PUBLIC OYSTER [AND PRIVATE] |
|
BEDS. [(a)] All natural oyster beds that are not private oyster |
|
beds are public. |
|
[(b) All oyster beds not designated as private are public.] |
|
SECTION 3. Section 76.003, Parks and Wildlife Code, is |
|
amended to read as follows: |
|
Sec. 76.003. BEDS SUBJECT TO LOCATION BY DEPARTMENT. (a) |
|
Except as otherwise provided by this section [in Section 76.004 of
|
|
this code], an oyster bed or reef, other than a natural oyster bed, |
|
is subject to location by the department. This section does not |
|
apply to a bed or reef that has been exhausted within an eight-year |
|
period. |
|
(b) An oyster bed or reef that is located on non-state-owned |
|
submerged land or on submerged land that is subject to the rights of |
|
a riparian owner under Section 76.004, is not subject to location by |
|
the department. |
|
SECTION 4. Section 76.004, Parks and Wildlife Code, is |
|
amended by adding Subsection (d) to read as follows: |
|
(d) A person who is a riparian owner with exclusive rights |
|
with respect to the use of a creek, bayou, lake, or cove under |
|
Subsection (a) or (b) is protected against trespass in the same |
|
manner as a freeholder. This subsection applies only as long as the |
|
owner clearly and distinctly marks the boundaries of the private |
|
oyster bed with buoys or other permanent markers easily visible |
|
above the surface of the water and maintains those markers in their |
|
correct positions. |
|
SECTION 5. The heading to Section 76.006, Parks and |
|
Wildlife Code, is amended to read as follows: |
|
Sec. 76.006. APPLICATION FOR LOCATION BY THE DEPARTMENT; |
|
FEE. |
|
SECTION 6. Section 76.006(a), Parks and Wildlife Code, is |
|
amended to read as follows: |
|
(a) An individual who is a [Any] citizen of the United |
|
States and a resident of this state or a domestic entity as that |
|
term is defined by the Business Organizations Code [any domestic
|
|
corporation] may file a written application with the department for |
|
a certificate authorizing the applicant to [plant oysters and] make |
|
a private oyster bed in the public water of the state. |
|
SECTION 7. Section 76.009(b), Parks and Wildlife Code, is |
|
amended to read as follows: |
|
(b) If the location is subject to certification, the |
|
applicant [department] shall have the metes and bounds of the |
|
location surveyed by a competent surveyor. |
|
SECTION 8. Section 76.015, Parks and Wildlife Code, is |
|
amended to read as follows: |
|
Sec. 76.015. RIGHTS OF LOCATOR. (a) A person who is the |
|
[The] holder of a certificate of location under [as provided for in] |
|
Section 76.012 [of this code] is protected in the person's [his] |
|
possession of the location described by the certificate against |
|
trespass in the same manner as are freeholders. |
|
(b) This section applies only as long as the stakes or pipes |
|
and buoys required by this chapter are maintained in the [their] |
|
correct positions, easily visible above the surface of the water to |
|
mark the boundaries of the location as described by the certificate |
|
issued by the department under Section 76.012 [and the locator
|
|
complies with the law and the regulations governing the fish and
|
|
oyster industries]. |
|
SECTION 9. Sections 76.017(a) and (c), Parks and Wildlife |
|
Code, are amended to read as follows: |
|
(a) A locator [The holder of a certificate of location] |
|
shall pay to the department the greater of $6 per acre of location |
|
per year or an amount set by the commission to rent the location |
|
under the certificate. [In lieu of that payment, the commission may
|
|
set the required payment under this section in a greater amount.] |
|
(c) A locator [The holder of a certificate] shall pay the |
|
department a late penalty fee equal to 10 percent of the amount due |
|
for any rental, transfer, sale, or renewal fee that is not paid when |
|
due. |
|
SECTION 10. Section 76.018(b), Parks and Wildlife Code, is |
|
amended to read as follows: |
|
(b) The commission shall determine renewal procedures to |
|
follow at the end of each lease term. The procedures must include: |
|
(1) a determination that the lease renewal will be |
|
based on: |
|
(A) the need for depuration of polluted oysters; |
|
(B) consideration of whether the effect of the |
|
cultivated oyster bed on the habitat and ecosystem is beneficial; |
|
and |
|
(C) other considerations specified in the oyster |
|
management plan; |
|
(2) payment of a $200 fee due on renewal of the lease; |
|
(3) a condition that the current leaseholder will be |
|
offered a first right of refusal if the lease is renewed under this |
|
chapter; and |
|
(4) any other conditions for the lease renewal that do |
|
not conflict with this chapter. |
|
SECTION 11. Sections 76.021(a) and (f), Parks and Wildlife |
|
Code, are amended to read as follows: |
|
(a) The oyster shell recovery and replacement program |
|
account is a separate interest-bearing account in the game, fish, |
|
and water safety account. The account consists of money deposited |
|
to the account under this section. The account is exempt from the |
|
application of Section 403.095, Government Code. |
|
(f) The department shall consult with members of the oyster |
|
industry regarding the cultivation and management of oysters and |
|
oyster beds in this state. |
|
SECTION 12. Subchapter A, Chapter 76, Parks and Wildlife |
|
Code, is amended by adding Sections 76.022 and 76.023 to read as |
|
follows: |
|
Sec. 76.022. NAVIGATION DISTRICT LEASES FOR CREATION OF |
|
PRIVATE OYSTER BEDS. (a) In this section: |
|
(1) "District-owned submerged land" means submerged |
|
land or flats conveyed to a navigation district, including by a |
|
conveyance under Article 8225, Revised Statutes. |
|
(2) "Navigation district" has the meaning assigned to |
|
"district" by Section 60.001(1), Water Code. |
|
(b) A navigation district may lease district-owned |
|
submerged land for the creation of cultivated oyster beds and for |
|
the protection of natural oyster beds. |
|
(c) The holder of a lease of submerged land under this |
|
section is protected against trespass in the same manner as a |
|
freeholder. This subsection applies only as long the lease holder |
|
clearly and distinctly marks the boundaries of the private oyster |
|
bed with buoys or other permanent markers easily visible above the |
|
surface of the water and maintains those markers in their correct |
|
positions. |
|
(d) The holder of a lease under this section must obtain a |
|
permit under Subchapter B. |
|
(e) Not later than the 30th day after the date a lease under |
|
this section is executed, the lease holder must provide the |
|
department with notice of the lease. |
|
Sec. 76.023. NON-STATE-OWNED SUBMERGED LAND. (a) The |
|
commission shall adopt rules to: |
|
(1) promote the use of non-state-owned submerged land |
|
for oyster resource management; and |
|
(2) in accordance with Nationwide Permit 48 issued by |
|
the United States Army Corps of Engineers or a substantially |
|
similar federal requirement, allow the discharge of dredged or fill |
|
material, the placement of structures, and any activities necessary |
|
for commercial shellfish aquaculture operations in authorized |
|
project areas, including restricted areas closed by the Department |
|
of State Health Services. |
|
(b) The department may not collect a land lease fee for |
|
non-state-owned submerged land. |
|
(c) The department may set fees for the administration of |
|
this section in an amount not to exceed the administrative costs |
|
directly associated with administering this section. The |
|
department may reduce the amount of a fee to account for the habitat |
|
and ecosystem benefits provided by cultivated oyster beds on |
|
non-state-owned submerged land. |
|
SECTION 13. Sections 76.031(b) and (c), Parks and Wildlife |
|
Code, are amended to read as follows: |
|
(b) Only an individual [those persons] who is a citizen of |
|
the United States and a resident [are citizens] of this state |
|
[Texas] or a domestic entity as that term is defined by the Business |
|
Organizations Code [corporations composed of American citizens and
|
|
chartered by this state to engage in the culture of oysters or to
|
|
transact business in the purchase and sale of fish and oysters] may |
|
apply for a permit. |
|
(c) The application must: |
|
(1) state the purpose for taking oysters; and |
|
(2) specify: |
|
(A) [give] the quantity of oysters to be taken |
|
from specified [designated] areas; |
|
(B) the start and end dates for the taking and |
|
transplanting of oysters; |
|
(C) the areas from which the oysters will be |
|
taken; and |
|
(D) the area where the oysters will be deposited |
|
as described: |
|
(i) by a certificate of location issued |
|
under Section 76.012; or |
|
(ii) in writing by a person who owns or |
|
leases a private oyster bed. |
|
SECTION 14. Section 76.032, Parks and Wildlife Code, is |
|
amended to read as follows: |
|
Sec. 76.032. DISCRETION TO ISSUE PERMIT. The department |
|
may issue or refuse to issue a permit to any applicant. If the |
|
department refuses to issue a permit, the department must show good |
|
cause for the refusal in a written order that demonstrates using |
|
sound biological data that the issuance of the permit would cause |
|
harm to human health, the environment, or natural resources. |
|
SECTION 15. Section 76.033(b), Parks and Wildlife Code, is |
|
amended to read as follows: |
|
(b) The department shall: |
|
(1) mark off the exact area of beds or reefs from which |
|
oysters may be taken; |
|
(2) designate the bottoms on which oysters may be |
|
deposited if they are taken to be prepared for market; |
|
(3) require the permittee to cull the oysters on the |
|
grounds from which [where] they are taken [to be located]; and |
|
(4) specify what implements may be used in taking |
|
oysters from oyster beds that are not private oyster beds. |
|
SECTION 16. Section 76.035, Parks and Wildlife Code, is |
|
amended to read as follows: |
|
Sec. 76.035. OYSTERS PROPERTY OF PERMITTEE. All oysters |
|
taken, [or] deposited, or cultivated in public water by the holder |
|
of an oyster permit under the terms of a permit are the personal |
|
property of the permit holder. |
|
SECTION 17. Section 76.037, Parks and Wildlife Code, is |
|
amended to read as follows: |
|
Sec. 76.037. THEFT OF OYSTERS FROM PRIVATE BED. No person |
|
may [fraudulently] take oysters from a [placed on] private oyster |
|
bed [beds] without the consent of the owner of the private bed or |
|
from an oyster bed [beds] or deposit [deposits] made for the purpose |
|
of preparing oysters for market without the consent of the owner of |
|
the oysters who lawfully deposited them. |
|
SECTION 18. Section 76.039, Parks and Wildlife Code, is |
|
amended by adding Subsection (c) to read as follows: |
|
(c) Subsection (a) applies only to the gathering of oysters |
|
from an area declared prohibited under Section 436.091, Health and |
|
Safety Code. |
|
SECTION 19. Section 76.116(b), Parks and Wildlife Code, is |
|
amended to read as follows: |
|
(b) The department may authorize by permit the |
|
transplanting of oysters from restricted areas or other areas |
|
designated by the department to private oyster beds [leases]. |
|
SECTION 20. Section 76.301, Parks and Wildlife Code, is |
|
amended by amending Subsections (a) and (d) and adding Subsection |
|
(h) to read as follows: |
|
(a) Except as provided by Subsection (h), the [The] |
|
commission by proclamation may regulate the taking, possession, |
|
purchase, and sale of oysters. A proclamation issued under this |
|
section must contain findings by the commission that support the |
|
need for the proclamation. |
|
(d) Except as provided by Subsection (h), a [A] proclamation |
|
of the commission under this section prevails over: |
|
(1) any conflicting provision of Subchapter A, B, or C |
|
of this chapter to the extent of the conflict; and |
|
(2) a proclamation of the commission issued under the |
|
Wildlife Conservation Act of 1983 (Chapter 61 of this code). |
|
(h) The commission may not make a proclamation regulating |
|
the taking from or possession, purchase, or sale of oysters taken |
|
from non-state-owned submerged land that conflicts with Subchapter |
|
A, B, or C. |
|
SECTION 21. (a) The change in law made by this Act applies |
|
only to an offense committed on or after the effective date of this |
|
Act. An offense committed before the effective date of this Act is |
|
governed by the law in effect on the date the offense was committed, |
|
and the former law is continued in effect for that purpose. For |
|
purposes of this section, an offense was committed before the |
|
effective date of this Act if any element of the offense occurred |
|
before that date. |
|
(b) Section 76.022, Parks and Wildlife Code, as added by |
|
this Act, applies to a lease for district-owned submerged land for |
|
the creation of cultivated oyster beds or for the protection of |
|
natural oyster beds, regardless of when the lease was executed. |
|
SECTION 22. This Act takes effect immediately if it |
|
receives a vote of two-thirds of all the members elected to each |
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2015. |