SECTION 58.30. Certificate of Location

(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.

Source Note: The provisions of this §58.30 adopted to be effective October 3, 1996, 21 TexReg 9172; amended to be effective February 28, 2002, 27 TexReg 1330; amended to be effective June 12, 2013, 38 TexReg 3649; amended to be effective January 18, 2017, 42 TexReg 80