84R6266 SLB-F
By: Deshotel H.B. No. 3335
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.