31 Tex. Admin. Code § 58.30 - Certificate of Location
(a) General Rules.
(1) No certificate of location will be issued
for:
(A) a natural oyster bed unless the
department has determined that it is degraded, consistent with the provisions
of Parks and Wildlife Code, §
76.003(b);
(B) a bay shore area within 100 yards of the
shore as prescribed in Parks and Wildlife Code, §
76.004;
(C) an area subject to an exclusive riparian
right as provided under Parks and Wildlife Code, §
76.004 and §
76.005;
(D) an area already under location;
or
(E) an area within 1,000 feet of
a location not owned or controlled by the applicant unless the applicant
secures written permission.
(2) The term of a certificate of location for
purposes of harvest is 15 years, as prescribed in Parks and Wildlife Code, §
76.018.
(3) The term of a certificate of location for
purposes of restoration is 15 years.
(4) In accordance with the Oyster Fishery
Management Plan required by Parks and Wildlife Code, §
76.301, the
department may accept applications for certificates of location.
(5) No harvest of oysters is permitted from
an area for which a certificate of location has been issued for restoration
purposes.
(6) It is an offense for
any person to move oysters from or cause oysters to be moved from an area for
which a certificate of location has been issued except as provided by §
58.40 of this title (relating to
Oyster Transplant Permits) or §
58.50 of this title (relating to
Oyster Harvest Permits)
(7) A
locator may conduct non-harvest activities after potentially damaging events,
such as extreme weather events, on locations otherwise closed by DSHS, provided
the locator has received prior authorization of the activity from the
department in writing.
(b) Application for Certificate of Location
(Harvest or Restoration).
(1) An application
for a certificate of location shall be accompanied by a nonrefundable
application fee of $200.
(2) The
department shall designate specific times and dates during which applications
will be accepted and shall make such information publicly available.
(3) Prior to the submission of an
application, the applicant shall consult with an authorized employee(s) of the
department to enable the department to determine necessary survey requirements
and evaluate the prospective location with respect to:
(A) natural oyster reefs;
(B) shoreline;
(C) areas restricted or prohibited by
TDSHS;
(D) spoil disposal
areas;
(E) other areas subject to a
certificate of location;
(F)
riparian rights;
(G) presence of
exposed shell;
(H) presence of live
oysters;
(I) sediment overburden;
and
(J) other habitats.
(4) An application must specify
the purpose of the prospective certificate of location (for harvest or
restoration purposes).
(5) An
application shall consist of, at a minimum:
(A) the applicant's name and
address;
(B) signed affirmation
that the applicant is a United States citizen or a domestic
corporation;
(C) a description of
the acreage for which the certificate of location is sought, including:
(i) a map showing approximate size and
location in relation to state land tracts;
(ii) the corner coordinates of the proposed
site; and
(D) a cultch
placement plan for the site, including reasonable estimates of:
(i) the nature or composition of materials to
be used;
(ii) the quantity of
materials to be used; and
(iii) the
time of placement or deployment.
(6) The department shall approve or
disapprove an application based on the totality of factors involved, including
the suitability of the location with respect to the purpose and size of the
area.
(c) Public Hearing
on Application.
(1) If the department
determines that the proposed location site meets all siting requirements of
this subchapter and Parks and Wildlife Code, Chapter 76, the department shall:
(A) hold a public hearing to provide
opportunity for public comment;
(B)
publish a notification of the date, time, and purpose of the public hearing on
the department website and any other outlet deemed appropriate;
(C) publish the notification between ten and
20 days prior to the public hearing; and
(D) make information about the proposed
certificate of location available to the public at the hearing.
(2) The department will consider
all public comment relevant to the application.
(3) The department shall review findings of
the public hearing and submit recommendations to the Coastal Fisheries Division
Director for approval.
(4) The
applicant will be notified within 14 days after the hearing of either approval
or denial of the application for a certificate of location.
(d) Responsibilities of Approved
Locator.
(1) The department will not make a
final decision to approve an application for a certificate of location until:
(A) the applicant has provided the department
with:
(i) a map of the location showing the
relation of the location with respect to surrounding or nearby state land tract
boundaries;
(ii) the latitude and
longitude coordinates of the location; and
(iii) evidence to satisfy the department that
all applicable permits and authorizations required by other state and federal
governmental entities have been secured; and
(B) the department has inspected the location
and verified the latitude and longitude coordinates required under subparagraph
(A) of this paragraph.
(2) Prior to any placement of cultch or other
materials, the locator shall mark the boundaries of the location with buoys or
other permanent markers in accordance with United States Coast Guard
regulations and maintain buoys or other permanent markers for the duration of
the period of validity of the certificate. Supplemental markers may be required
along the boundaries if one corner marker is not clearly visible from another
corner marker.
(A) All marker buoys or other
permanent markers must be:
(i) at least six
inches in diameter;
(ii) at least
three feet out of the water at mean high tide;
(iii) of a shape and color that is visible
for at least 1/2 mile under normal weather conditions;
(iv) marked with the certificate of location
number (Buoys or other permanent markers common to two or more locations must
be marked with all numbers of the certificate of location);
(v) marked with at least two-inch high
letters in plain Arabic block letters in a location where it will not be
obscured by water or marine growth; and
(vi) marked with all required U.S. Coast
Guard markings.
(B)
Buoys must be anchored by:
(i) A screw anchor
with a minimum one-inch galvanized sucker rod and 12-inch head inserted ten
feet into the bottom; or
(ii) two
anchors per buoy and each anchor having a minimum weight of 300
pounds.
(C) When
replacement of buoys or other permanent markers is necessary, original latitude
and longitude coordinates of the final survey must be used to relocate
markers.
(3) An
authorized employee(s) of the department shall inspect and verify latitude and
longitude coordinates.
(4) A
locator shall submit proposed amendments to a placement plan to the department
for review. The department must approve amendments to a placement plan prior to
any activities under a prospective amendment.
(5) In the event that unavoidable or
unforeseeable developments or extenuating circumstances make the attainment of
the benchmarks in this paragraph impractical or impossible, the department may,
on a case-by-case basis, waive, defer, or amend a benchmark. Beginning on the
date of issuance of certificate of location for purposes of restoration, the
locator shall submit documentation of project progress to the department as
follows:
(A) placement initiated--within the
first 24 months;
(B) 50% of the
plan completed--within five years;
(C) 60% of the plan completed--within 10
years; and
(D) 80% of the plan
completed--by time of renewal.
(6) Rental Fee.
(A) The holder of a certificate of location
for harvest shall pay to the department $20 per acre of location per year. The
fee established by this subparagraph shall be recalculated at three-year
intervals beginning on the effective date of this section and proportionally
adjusted to any change in the Consumer Price Index, the department's
cost-recovery needs, or both.
(B)
Rental fees for certificates of location for harvest are due annually by March
1 as prescribed in Parks and Wildlife Code, §
76.017.
(C) The holder of a certificate of location
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 as
prescribed in Parks and Wildlife Code, §
76.017.
(D) Failure to pay any rental, transfer,
sale, renewal, or late penalty fee within 90 days of the due date terminates
the (certification of location) as prescribed in Parks and Wildlife Code, §
76.017.
(E) There is no rental fee for certificates
of location for restoration.
(7) Renewal of Certificate of Location.
(A) As prescribed in Parks and Wildlife Code,
§
76.018, at
the end of the term of a certificate of location for harvest the department
shall determine the need for continuation of the certificate of location based
on:
(i) considerations as specified in §
58.12 of this title (relating to
Oyster Fishery Management Plan); and
(ii) any other consideration the department
deems significant enough to warrant continuation.
(B) If the certificate of location for
harvest is to be renewed under the conditions of the department as prescribed
in Parks and Wildlife Code, §
76.018, the
holder of the certificate of location shall be offered the first right of
refusal for renewal as prescribed in Parks and Wildlife Code, §
76.018.
(C) Certificates of location for restoration
will be renewed at the request of the locator
(8) Alteration of Boundaries
(A) The department must approve all boundary
alterations prior to any alteration of boundaries of a certificate of
location.
(B) If there is any
alteration to the boundaries of a location, the locator shall be responsible
for having the location resurveyed and providing the department with survey
notes and a map of the location showing:
(i)
the location in relation to state land tract boundaries; and
(ii) latitude and longitude coordinates for
all corner markers.
(C)
The department will not approve any alteration of the boundaries of a
certificate of location until the survey required by this paragraph has been
conducted and provided to the department.
(9) Auction Procedures.
(A) A certificate of location for harvest may
be auctioned by the department if it is not renewed as prescribed by this
subchapter and Parks and Wildlife Code, §
76.018.
(B) Auction procedures do not apply to
certificates of location for restoration; if certificates of location for
restoration are not renewed, the location automatically reverts to the public
domain.
(C) The department may
determine a minimum acceptable bid based on:
(i) bid offers from previous
auctions;
(ii) established open
market prices; and
(iii) other
relevant factors.
(D)
The department may refuse all bids below the minimum acceptable bid.
(E) The department must follow prescribed bid
guidelines for state agencies.
(10) Transfers or Sale.
(A) A transfer or sale of a certificate of
location does not change location terms.
(B) A payment of $200 will be due upon
transfer or sale of a certificate of location.
(C) A transfer fee will not be required when
a certificate of location is inherited.
(D) A completed transfer form prescribed by
the department is required at time of transfer.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
(a) General Rules.
(1) No certificate of location will be issued for:
(A) a natural oyster bed as prescribed in Parks and Wildlife Code, § 76.001;
(B) an area that has been fished as a public reef within eight years of an application of a certificate of location as prescribed in Parks and Wildlife Code, § 76.003;
(C) a bay shore area within 100 yards of the shore as prescribed in Parks and Wildlife Code, § 76.004;
(D) an area subject to an exclusive riparian right as provided under Parks and Wildlife Code, § 76.004 and § 76.005;
(E) an area already under location ; or
(F) an area within 1,000 feet of a location not owned or controlled by the applicant.
(2) The term of a certificate of location is 15 years as prescribed in Parks and Wildlife Code, § 76.018.
(3) In accordance with the Oyster Fishery Management Plan the Department may accept applications for certificates of location .
(b) Application For Certificate of Location .
(1) If applications for certificates of location are being accepted by the department , they shall be accompanied by a nonrefundable application fee of $200.
(2) The applicant shall mark the proposed location site or sites with temporary poles and/or buoys in such a manner that the outline of the site or sites can be clearly determined.
(3) Each application shall contain:
(A) applicant's name and address;
(B) affirmation that applicant is a United States citizen as prescribed in Parks and Wildlife Code, § 76.006;
(C) a description of the acreage to be authorized by the certificate of location , including a plat showing approximate size and location in relation to state land tracts; and
(D) signed letters each from the U.S. Army Corps of Engineers, General Land Office, and TDSHS indicating approval for the proposed location site.
(4) An authorized employee(s) of the department shall inspect the proposed location site or sites to determine its location with respect to:
(A) natural oyster reefs;
(B) shoreline;
(C) areas restricted or prohibited by the TSDHS;
(D) spoil disposal areas;
(E) other areas subject to a certificate of location ;
(F) riparian rights;
(G) presence of exposed shell; and
(H) presence of live oysters.
(c) Public Hearing on Application.
(1) After having determined the proposed location site meets location and exposed shell requirements, the department shall:
(A) hold a public hearing to determine if the site has been publicly fished within eight years of the application for a certificate of location ;
(B) publish a notification of the date, time, and purpose of the public hearing at least once in a newspaper of general circulation in the county closest to the proposed location ;
(C) publish the notification between ten and 20 days prior to the public hearing;
(D) make available to the public information about the proposed application for a certificate of location ten days prior to the date of the hearing; and
(E) present the investigation report at the public hearing.
(2) Persons objecting to the proposed certificate of location must submit a sworn affidavit or testify under oath at the public hearing stating reasons for the objection.
(3) The department shall review findings of the public hearing and submit recommendations to the Coastal Fisheries Division Director for approval.
(4) The applicant will be notified within ten days after the hearing of either approval or denial of the application for a certificate of location .
(5) The application approved by the department will be forwarded to the Coastal Coordination Council for final approval.
(d) Approved Procedures for Applicant.
(1) Applicant shall be responsible for having a final survey of the approved location conducted by a registered surveyor who will furnish the department with survey notes and a plat showing:
(A) the location in relation to state land tract boundaries; and
(B) latitude and longitude coordinates for all location corner markers.
(2) The applicant shall mark the boundaries of the location with buoys or other permanent markers at the time of the final survey and maintain buoys or other permanent markers until termination of the certificate of location . Supplemental markers may be required along the boundaries if one corner marker is not clearly visible from another corner marker.
(A) All marker buoys or other permanent markers must be:
(i) at least six inches in diameter;
(ii) at least three feet out of the water at mean high tide;
(iii) of a shape and color that is visible for at least 1/2 mile under normal weather conditions;
(iv) marked with the certificate of location number (Buoys or other permanent markers common to two or more locations must be marked with all numbers of the certificate of location );
(v) marked with at least two-inch high letters in plain Arabic block letters in a location where it will not be obscured by water or marine growth; and
(vi) marked with all required U.S. Coast Guard markings.
(B) Buoys must be anchored by:
(i) A screw anchor with a minimum one-inch galvanized sucker rod and 12-inch head inserted ten feet into the bottom; or
(ii) two anchors per buoy and each anchor having a minimum weight of 300 pounds.
(C) If replacement of buoys or other permanent markers is necessary, original latitude and longitude coordinates of the final survey must be used to relocate markers.
(3) An authorized employee(s) of the department shall inspect and verify latitude and longitude coordinates.
(4) The department shall return approved application for appropriate registration by applicant with the county clerk in the county of location .
(5) Rental Fee.
(A) The holder of a certificate of location shall pay to the department ($20) per acre of location per year. The fee established by this subparagraph shall be recalculated at three-year intervals beginning on the effective date of this section and proportionally adjusted to any change in the Consumer Price Index, the department 's cost-recovery needs, or both.
(B) Rental fees are due annually by March 1 as prescribed in Parks and Wildlife Code, § 76.017.
(C) 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 as prescribed in Parks and Wildlife Code, § 76.017.
(D) Failure to pay any rental, transfer, sale, renewal, or late penalty fee within 90 days of the due date terminates the (certification of location ) as prescribed in Parks and Wildlife Code, § 76.017.
(6) Renewal of Certificate of Location .
(A) As prescribed in Parks and Wildlife Code, § 76.018, at the end of a location term the department shall determine the need for continuation of the certificate of location based on:
(i) the need for depuration of oysters from non-approved areas; and
(ii) other considerations as specified in § 58.12 of this title (relating to Oyster Fishery Management Plan).
(B) If the certificate of location is to be renewed under the conditions of the department as prescribed in Parks and Wildlife Code, § 76.018, the holder of the certificate of location shall be offered the first right of refusal for renewal as prescribed in Parks and Wildlife Code, § 76.018.
(C) If there is any alteration to the boundaries of a location , the holder of a certificate of location shall be responsible for having the location resurveyed by a registered surveyor who will provide the department with survey notes and a plat of the location showing:
(i) the location in relation to state land tract boundaries; and
(ii) latitude and longitude coordinates for all corner markers.
(D) The survey will be conducted and provided to the department within one year of renewal of the certificate of location ;
(7) Auction Procedures.
(A) The department may auction a location that is not renewed as prescribed by Parks and Wildlife Code, § 76.018.
(B) The department may determine a minimum acceptable bid based on:
(i) bid offers from previous auctions;
(ii) established open market prices; and
(iii) other relevant factors.
(C) The department may refuse all bids below the minimum acceptable bid.
(D) The department must follow prescribed bid guidelines for state agencies.
(8) Transfers or Sale as prescribed in Parks and Wildlife Code, § 76.019.
(A) A transfer or sale of a location does not change location terms.
(B) A payment of $200 will be due upon transfer or sale of a location .
(C) A transfer fee will not be required when a location is inherited.
(D) A completed transfer form prescribed by the department will be required at time of transfer.