Texas 2015 - 84th Regular

Texas House Bill HB3335 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R6266 SLB-F
2	2	By: Deshotel H.B. No. 3335
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the regulation of oyster resources.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 76.001, Parks and Wildlife Code, is
10	10	amended by adding Subdivisions (1-a), (1-b), (1-c), (2-a), (4), and
11	11	(5) and amending Subdivision (2) to read as follows:
12	12	(1-a) "Cultivated oyster bed" means an oyster bed that
13	13	is planted by a person for the purpose of oyster resources
14	14	management, including the growing, transplanting, or harvesting of
15	15	oysters.
16	16	(1-b) "Location by the department" means the issuance
17	17	by the department of a certificate that authorizes a locator to
18	18	plant or cultivate an oyster bed on state-owned submerged land.
19	19	(1-c) "Locator" means a person who holds a certificate
20	20	of location issued by the department under Section 76.012.
21	21	(2) "Natural oyster bed" means an area that is not a
22	22	cultivated oyster bed where at least five barrels of oysters are
23	23	found within 2,500 square feet of any position on a reef or bed.
24	24	(2-a) "Non-state-owned submerged land" means submerged
25	25	land that has been conveyed to another person and to which the state
26	26	does not hold title, including land described by Sections 76.004(a)
27	27	and 76.022.
28	28	(4) "Private oyster bed" means an oyster bed that is:
29	29	(A) located on land that is non-state-owned
30	30	submerged land;
31	31	(B) located on state-owned submerged land leased
32	32	by a locator; or
33	33	(C) a cultivated oyster bed, including a
34	34	cultivated oyster bed on land subject to riparian rights under
35	35	Section 76.004(b) or (c).
36	36	(5) "State-owned submerged land" has the meaning
37	37	assigned by Section 11.0131(a), Natural Resources Code. The term
38	38	does not include non-state-owned submerged land.
39	39	SECTION 2. Section 76.002, Parks and Wildlife Code, is
40	40	amended to read as follows:
41	41	Sec. 76.002. [DESIGNATION OF] PUBLIC OYSTER [AND PRIVATE]
42	42	BEDS. [(a)] All natural oyster beds that are not private oyster
43	43	beds are public.
44	44	[(b) All oyster beds not designated as private are public.]
45	45	SECTION 3. Section 76.003, Parks and Wildlife Code, is
46	46	amended to read as follows:
47	47	Sec. 76.003. BEDS SUBJECT TO LOCATION BY DEPARTMENT. (a)
48	48	Except as otherwise provided by this section [in Section 76.004 of
49	49	this code], an oyster bed or reef, other than a natural oyster bed,
50	50	is subject to location by the department. This section does not
51	51	apply to a bed or reef that has been exhausted within an eight-year
52	52	period.
53	53	(b) An oyster bed or reef that is located on non-state-owned
54	54	submerged land or on submerged land that is subject to the rights of
55	55	a riparian owner under Section 76.004, is not subject to location by
56	56	the department.
57	57	SECTION 4. Section 76.004, Parks and Wildlife Code, is
58	58	amended by adding Subsection (d) to read as follows:
59	59	(d) A person who is a riparian owner with exclusive rights
60	60	with respect to the use of a creek, bayou, lake, or cove under
61	61	Subsection (a) or (b) is protected against trespass in the same
62	62	manner as a freeholder. This subsection applies only as long as the
63	63	owner clearly and distinctly marks the boundaries of the private
64	64	oyster bed with buoys or other permanent markers easily visible
65	65	above the surface of the water and maintains those markers in their
66	66	correct positions.
67	67	SECTION 5. The heading to Section 76.006, Parks and
68	68	Wildlife Code, is amended to read as follows:
69	69	Sec. 76.006. APPLICATION FOR LOCATION BY THE DEPARTMENT;
70	70	FEE.
71	71	SECTION 6. Section 76.006(a), Parks and Wildlife Code, is
72	72	amended to read as follows:
73	73	(a) An individual who is a [Any] citizen of the United
74	74	States and a resident of this state or a domestic entity as that
75	75	term is defined by the Business Organizations Code [any domestic
76	76	corporation] may file a written application with the department for
77	77	a certificate authorizing the applicant to [plant oysters and] make
78	78	a private oyster bed in the public water of the state.
79	79	SECTION 7. Section 76.009(b), Parks and Wildlife Code, is
80	80	amended to read as follows:
81	81	(b) If the location is subject to certification, the
82	82	applicant [department] shall have the metes and bounds of the
83	83	location surveyed by a competent surveyor.
84	84	SECTION 8. Section 76.015, Parks and Wildlife Code, is
85	85	amended to read as follows:
86	86	Sec. 76.015. RIGHTS OF LOCATOR. (a) A person who is the
87	87	[The] holder of a certificate of location under [as provided for in]
88	88	Section 76.012 [of this code] is protected in the person's [his]
89	89	possession of the location described by the certificate against
90	90	trespass in the same manner as are freeholders.
91	91	(b) This section applies only as long as the stakes or pipes
92	92	and buoys required by this chapter are maintained in the [their]
93	93	correct positions, easily visible above the surface of the water to
94	94	mark the boundaries of the location as described by the certificate
95	95	issued by the department under Section 76.012 [and the locator
96	96	complies with the law and the regulations governing the fish and
97	97	oyster industries].
98	98	SECTION 9. Sections 76.017(a) and (c), Parks and Wildlife
99	99	Code, are amended to read as follows:
100	100	(a) A locator [The holder of a certificate of location]
101	101	shall pay to the department the greater of $6 per acre of location
102	102	per year or an amount set by the commission to rent the location
103	103	under the certificate. [In lieu of that payment, the commission may
104	104	set the required payment under this section in a greater amount.]
105	105	(c) A locator [The holder of a certificate] shall pay the
106	106	department a late penalty fee equal to 10 percent of the amount due
107	107	for any rental, transfer, sale, or renewal fee that is not paid when
108	108	due.
109	109	SECTION 10. Section 76.018(b), Parks and Wildlife Code, is
110	110	amended to read as follows:
111	111	(b) The commission shall determine renewal procedures to
112	112	follow at the end of each lease term. The procedures must include:
113	113	(1) a determination that the lease renewal will be
114	114	based on:
115	115	(A) the need for depuration of polluted oysters;
116	116	(B) consideration of whether the effect of the
117	117	cultivated oyster bed on the habitat and ecosystem is beneficial;
118	118	and
119	119	(C) other considerations specified in the oyster
120	120	management plan;
121	121	(2) payment of a $200 fee due on renewal of the lease;
122	122	(3) a condition that the current leaseholder will be
123	123	offered a first right of refusal if the lease is renewed under this
124	124	chapter; and
125	125	(4) any other conditions for the lease renewal that do
126	126	not conflict with this chapter.
127	127	SECTION 11. Sections 76.021(a) and (f), Parks and Wildlife
128	128	Code, are amended to read as follows:
129	129	(a) The oyster shell recovery and replacement program
130	130	account is a separate interest-bearing account in the game, fish,
131	131	and water safety account. The account consists of money deposited
132	132	to the account under this section. The account is exempt from the
133	133	application of Section 403.095, Government Code.
134	134	(f) The department shall consult with members of the oyster
135	135	industry regarding the cultivation and management of oysters and
136	136	oyster beds in this state.
137	137	SECTION 12. Subchapter A, Chapter 76, Parks and Wildlife
138	138	Code, is amended by adding Sections 76.022 and 76.023 to read as
139	139	follows:
140	140	Sec. 76.022. NAVIGATION DISTRICT LEASES FOR CREATION OF
141	141	PRIVATE OYSTER BEDS. (a) In this section:
142	142	(1) "District-owned submerged land" means submerged
143	143	land or flats conveyed to a navigation district, including by a
144	144	conveyance under Article 8225, Revised Statutes.
145	145	(2) "Navigation district" has the meaning assigned to
146	146	"district" by Section 60.001(1), Water Code.
147	147	(b) A navigation district may lease district-owned
148	148	submerged land for the creation of cultivated oyster beds and for
149	149	the protection of natural oyster beds.
150	150	(c) The holder of a lease of submerged land under this
151	151	section is protected against trespass in the same manner as a
152	152	freeholder. This subsection applies only as long the lease holder
153	153	clearly and distinctly marks the boundaries of the private oyster
154	154	bed with buoys or other permanent markers easily visible above the
155	155	surface of the water and maintains those markers in their correct
156	156	positions.
157	157	(d) The holder of a lease under this section must obtain a
158	158	permit under Subchapter B.
159	159	(e) Not later than the 30th day after the date a lease under
160	160	this section is executed, the lease holder must provide the
161	161	department with notice of the lease.
162	162	Sec. 76.023. NON-STATE-OWNED SUBMERGED LAND. (a) The
163	163	commission shall adopt rules to:
164	164	(1) promote the use of non-state-owned submerged land
165	165	for oyster resource management; and
166	166	(2) in accordance with Nationwide Permit 48 issued by
167	167	the United States Army Corps of Engineers or a substantially
168	168	similar federal requirement, allow the discharge of dredged or fill
169	169	material, the placement of structures, and any activities necessary
170	170	for commercial shellfish aquaculture operations in authorized
171	171	project areas, including restricted areas closed by the Department
172	172	of State Health Services.
173	173	(b) The department may not collect a land lease fee for
174	174	non-state-owned submerged land.
175	175	(c) The department may set fees for the administration of
176	176	this section in an amount not to exceed the administrative costs
177	177	directly associated with administering this section. The
178	178	department may reduce the amount of a fee to account for the habitat
179	179	and ecosystem benefits provided by cultivated oyster beds on
180	180	non-state-owned submerged land.
181	181	SECTION 13. Sections 76.031(b) and (c), Parks and Wildlife
182	182	Code, are amended to read as follows:
183	183	(b) Only an individual [those persons] who is a citizen of
184	184	the United States and a resident [are citizens] of this state
185	185	[Texas] or a domestic entity as that term is defined by the Business
186	186	Organizations Code [corporations composed of American citizens and
187	187	chartered by this state to engage in the culture of oysters or to
188	188	transact business in the purchase and sale of fish and oysters] may
189	189	apply for a permit.
190	190	(c) The application must:
191	191	(1) state the purpose for taking oysters; and
192	192	(2) specify:
193	193	(A) [give] the quantity of oysters to be taken
194	194	from specified [designated] areas;
195	195	(B) the start and end dates for the taking and
196	196	transplanting of oysters;
197	197	(C) the areas from which the oysters will be
198	198	taken; and
199	199	(D) the area where the oysters will be deposited
200	200	as described:
201	201	(i) by a certificate of location issued
202	202	under Section 76.012; or
203	203	(ii) in writing by a person who owns or
204	204	leases a private oyster bed.
205	205	SECTION 14. Section 76.032, Parks and Wildlife Code, is
206	206	amended to read as follows:
207	207	Sec. 76.032. DISCRETION TO ISSUE PERMIT. The department
208	208	may issue or refuse to issue a permit to any applicant. If the
209	209	department refuses to issue a permit, the department must show good
210	210	cause for the refusal in a written order that demonstrates using
211	211	sound biological data that the issuance of the permit would cause
212	212	harm to human health, the environment, or natural resources.
213	213	SECTION 15. Section 76.033(b), Parks and Wildlife Code, is
214	214	amended to read as follows:
215	215	(b) The department shall:
216	216	(1) mark off the exact area of beds or reefs from which
217	217	oysters may be taken;
218	218	(2) designate the bottoms on which oysters may be
219	219	deposited if they are taken to be prepared for market;
220	220	(3) require the permittee to cull the oysters on the
221	221	grounds from which [where] they are taken [to be located]; and
222	222	(4) specify what implements may be used in taking
223	223	oysters from oyster beds that are not private oyster beds.
224	224	SECTION 16. Section 76.035, Parks and Wildlife Code, is
225	225	amended to read as follows:
226	226	Sec. 76.035. OYSTERS PROPERTY OF PERMITTEE. All oysters
227	227	taken, [or] deposited, or cultivated in public water by the holder
228	228	of an oyster permit under the terms of a permit are the personal
229	229	property of the permit holder.
230	230	SECTION 17. Section 76.037, Parks and Wildlife Code, is
231	231	amended to read as follows:
232	232	Sec. 76.037. THEFT OF OYSTERS FROM PRIVATE BED. No person
233	233	may [fraudulently] take oysters from a [placed on] private oyster
234	234	bed [beds] without the consent of the owner of the private bed or
235	235	from an oyster bed [beds] or deposit [deposits] made for the purpose
236	236	of preparing oysters for market without the consent of the owner of
237	237	the oysters who lawfully deposited them.
238	238	SECTION 18. Section 76.039, Parks and Wildlife Code, is
239	239	amended by adding Subsection (c) to read as follows:
240	240	(c) Subsection (a) applies only to the gathering of oysters
241	241	from an area declared prohibited under Section 436.091, Health and
242	242	Safety Code.
243	243	SECTION 19. Section 76.116(b), Parks and Wildlife Code, is
244	244	amended to read as follows:
245	245	(b) The department may authorize by permit the
246	246	transplanting of oysters from restricted areas or other areas
247	247	designated by the department to private oyster beds [leases].
248	248	SECTION 20. Section 76.301, Parks and Wildlife Code, is
249	249	amended by amending Subsections (a) and (d) and adding Subsection
250	250	(h) to read as follows:
251	251	(a) Except as provided by Subsection (h), the [The]
252	252	commission by proclamation may regulate the taking, possession,
253	253	purchase, and sale of oysters. A proclamation issued under this
254	254	section must contain findings by the commission that support the
255	255	need for the proclamation.
256	256	(d) Except as provided by Subsection (h), a [A] proclamation
257	257	of the commission under this section prevails over:
258	258	(1) any conflicting provision of Subchapter A, B, or C
259	259	of this chapter to the extent of the conflict; and
260	260	(2) a proclamation of the commission issued under the
261	261	Wildlife Conservation Act of 1983 (Chapter 61 of this code).
262	262	(h) The commission may not make a proclamation regulating
263	263	the taking from or possession, purchase, or sale of oysters taken
264	264	from non-state-owned submerged land that conflicts with Subchapter
265	265	A, B, or C.
266	266	SECTION 21. (a) The change in law made by this Act applies
267	267	only to an offense committed on or after the effective date of this
268	268	Act. An offense committed before the effective date of this Act is
269	269	governed by the law in effect on the date the offense was committed,
270	270	and the former law is continued in effect for that purpose. For
271	271	purposes of this section, an offense was committed before the
272	272	effective date of this Act if any element of the offense occurred
273	273	before that date.
274	274	(b) Section 76.022, Parks and Wildlife Code, as added by
275	275	this Act, applies to a lease for district-owned submerged land for
276	276	the creation of cultivated oyster beds or for the protection of
277	277	natural oyster beds, regardless of when the lease was executed.
278	278	SECTION 22. This Act takes effect immediately if it
279	279	receives a vote of two-thirds of all the members elected to each
280	280	house, as provided by Section 39, Article III, Texas Constitution.
281	281	If this Act does not receive the vote necessary for immediate
282	282	effect, this Act takes effect September 1, 2015.