Commission Agenda Item No. 14
Action
Seagrass Protection in Redfish Bay State Scientific Area
November 2005

31 TAC §57.921

The Texas Parks and Wildlife Department (TPWD) proposes an amendment to §57.921, concerning the Redfish Bay State Scientific Area (RFBSSA). At its August 25, 2005, public meeting, the Texas Parks and Wildlife Commission directed staff to propose two different, but complementary, regulatory approaches to conservation of seagrasses within the RFBSSA. The approach proposed in §57.921(e) and (f) would prohibit the uprooting of seagrasses throughout the entire area of the RFBSSA, and would define seagrass to include the five species prevalent within the RFBSSA. The approach proposed in §57.921(d), (g), and (h) would designate three vulnerable seagrass meadows within the RFBSSA where operation of a vessel driven by a submerged propeller would be prohibited, subject to certain exceptions.

Submerged seagrass meadows are a dominant, unique subtropical habitat in many Texas bays and estuaries. These highly evolved marine flowering plants play critical roles in the coastal environment, including nursery habitat for estuarine fisheries, as a major source of organic biomass for coastal food webs, effective agents for stabilizing coastal erosion and sedimentation, and major biological agents in nutrient cycling and water quality processes. Recent studies show that seagrasses are sensitive to nutrient enrichment and water quality problems, as well as physical stress from human disturbances. As a result, many Texas scientists, resource managers and environmentally aware citizens have concerns about the ecosystem health of these seagrass resources.

In January 1999, the Texas Parks and Wildlife Department (TPWD), the Texas General Land Office and the Texas Natural Resource Conservation Commission (now, the Texas Commission on Environmental Quality) published 'The Seagrass Conservation Plan for Texas.' The Seagrass Conservation Plan recommends that these three agencies take measures within their jurisdictions to conserve this critical coastal resource. The Seagrass Conservation Plan identified propeller scarring as a factor in seagrass destruction. TPWD created the RFBSSA by rule in 2000 to study seagrass resources and protect them from the effects of boat propellers.

The rule TPWD adopted for the RFBSSA in 2000 focused on education and voluntary compliance as the principal means of protecting seagrass resources. Unfortunately, despite extensive and costly efforts by TPWD over the past five years, the voluntary approach has proven ineffective. Accordingly, TPWD is now proposing mandatory measures to deal with the problem.

The proposed provisions of §57.921(e) - (f) would define ‘seagrass plant’ by identifying the five marine flowering plant species that are prevalent in the RFBSSA. The proposed amendment also would prohibit uprooting or digging out seagrasses except as allowed under a General Land Office coastal lease or otherwise permitted under state law. The prohibition would apply throughout the entire RFBSSA (32,144 acres) as delineated in proposed §57.921(c).

The proposed provisions of §57.921(d), (g), and (h) would designate three areas within the RFBSSA where the operation of a vessel driven by a submerged propeller (other than an electric trolling motor propeller) would be prohibited, except under specific situations. Other types of vessels that do not utilize submerged propellers (e.g., jet-driven vessels and airboats) would still be lawful within the no-prop areas. The three areas and the condition of the areas are described generally as follows:

1. The area of Estes Flats called Redfish Cove (623 acres). This consists of two smaller sub-coves, Trout Bayou and Turtle Bayou. This flat is one of the most severely impacted by propeller scarring in this system. Turtle Bayou has a navigable channel that connects the Gulf Intracoastal Waterway (GIWW) and eastern side of Traylor Island, which would remain outside the no-prop zone;

2. The Terminal Flats area (704 acres), which represents one of the most extensive and fragmented turtle grass beds in Aransas Bay and one of the most frequently used areas for shortcutting between the GIWW and the Aransas Pass to Port Aransas Boat Channel. Turtlegrass is a climax species that takes up to five years to regenerate when affected.

3. The Brown and Root Flat area (2,992 acres), which lies just south of the Port Aransas to Aransas Pass causeway. The southernmost area of this flat is home to another large, substantially intact turtlegrass flat. This very shallow area has less boating traffic than other areas but is particularly susceptible to scarring.

There will be ingress and egress lanes or zones in all three no-prop zones, which will facilitate boaters using the areas by drifting, wading, poling, or use of a trolling motor.

Mr. Robin Riechers, Director of Science and Policy, has determined that for each of the first five years that §57.921(d) - (h) as proposed are in effect, there should be no additional costs, reductions in costs, or increases in or loss of revenue to state or local governments as a result of enforcing or administering proposed §57.921(d) - (h).

Mr. Riechers also has determined that for each of the first five years §57.921(d) - (h) as proposed is in effect, the public benefit anticipated as a result of enforcing or administering §57.921(d) - (h) as proposed will be the protection of an important ecosystem enjoyed by the public. Seagrasses are an important Texas resource on their own; moreover, they contribute to estuarine productivity for key recreational and commercial species of fish and shellfish. Destruction of seagrasses in the RFBSSA by boat propellers has been well documented. See, e.g., Montagna, Holt et al., Characterization of Anthropogenic and Natural Disturbance on Vegetated and Unvegetated Bay Bottom Habitats in the Corpus Christi Bay Natural Estuary Program Study Area (1998); Pulich et al., Current Status and Historical Trends of Seagrass in the Corpus Christi Bay National Estuary Program Study Area (1997). Proposed §57.921(d) - (h) will protect seagrasses within the RFBSSA and the ecosystem that seagrasses support. This will in turn benefit commercial and recreational anglers and all those who use biological resources in the RFBSSA for income or recreation.

There may be minimal adverse economic effect on small businesses, microbusinesses, or persons required to comply with §57.921(d) - (h) as proposed. Section §57.921(d) - (h) as proposed would affect recreational anglers, boaters, and commercial fishermen or guides who use or traverse the area; however, proposed §57.921(d), (g), and (h) would affect users somewhat differently than proposed §57.921(e) - (f).

The potential additional costs of proposed §57.921(d), (g), and (h) would be associated with traversing the no-prop areas within the RFBSSA (if a person chooses to go around a no-prop area rather than traversing it, the additional cost will be three to seven minutes at 30 mph and less than one gallon of fuel for a 120 hp motor).

For purposes of explanation, the department examines a worst-case scenario involving a hypothetical user traversing a no-prop zone. The worst-case scenario does not consider the availability of ingress and egress lanes or zones (which would be encountered if one were attempting to traverse the area and where propeller use would be allowed). Using the worst-case scenario approach, if a user entered the Estes Cove area on one boundary edge with the intention of reaching the boundary edge farthest from the point of entry, the distance traversed would be approximately 0.75 nautical miles. Under current rules (i.e., voluntary no-prop zone), if the user chose to traverse the zone by means of a submerged propeller at typical/conservative run speeds for vessels routinely used in these areas (e.g., 30 mph), the crossing would take approximately 1.8 minutes. At a typical electric trolling-motor speed of 2 mph, the same crossing would take approximately 25 minutes. At a typical poling speed of 1 mph, the same crossing would take approximately 52 minutes. Applying the same scenario to Terminal Flats would yield the following: the distance traversed from boundary to boundary would be approximately one nautical mile. By submerged propeller, the crossing would take approximately 2.3 minutes; by trolling motor, approximately 35 minutes; and by pole, approximately 69 minutes. For Brown and Root Flats, the boundary-to-boundary distance is approximately three nautical miles, and the crossing by submerged propeller would take approximately 6.9 minutes; by trolling speed, approximately 103 minutes (i.e., one hour and 43 minutes), and by pole, approximately 3 hours and 26 minutes. Of course, the slow-speed traverse of all three areas can be avoided by using neighboring deep-water channels at high speeds, meaning boaters can skirt the areas at the cost of only a few minutes of time and fuel. There would be a large zone in the middle of Brown and Root Flats where submerged propellers would be lawful (see §57.921(h)(3)(E)). If a user chooses to invest in a trolling motor and/or a pole in order to traverse a no-prop zone, the incurred cost would be approximately $100 for a pole and $350 for a trolling motor (depending on make and model); however, the department notes that trolling motors and push poles are common pieces of equipment and currently may be found on board some vessels.

The potential additional costs of proposed §57.921(e) and (f) would be associated with avoiding the uprooting of seagrasses within the RFBSSA. If a person is attempting to traverse an area within the RFBSSA where the use of a propeller would uproot seagrasses, that person must do so by use of a trolling motor, pole, or some means other than a submerged propeller. If a user chooses to invest in a trolling motor and/or a pole, the incurred cost would be approximately $100 for a pole and $350 for a trolling motor (depending on make and model); however, the department notes that trolling motors and push poles are common pieces of equipment and currently may be found on board some vessels. The average maximum cost in order to comply is estimated to be $350 per person (vessel), which is based on the average cost of $350 per trolling motor (the amount of time and expense required to go around rather than traverse areas where seagrasses would be uprooted cannot be quantified because that calculation depends upon variables such as tide, the depth at which a propeller is operated, specialized equipment, and operator experience).

Small and microbusiness effects. There should be no difference between the largest and smallest businesses affected by §57.921(d) - (h) on a per-vessel cost basis. If a business owns multiple vessels then they may incur the cost multiple times but it would be equal to the cost of compliance times the number of vessels owned. For example, the maximum cost of compliance to an owner of two vessels would be $700. There is no feasible way to reduce the effect on small or micro-businesses, and it is likely that all businesses potentially affected meet the definition of a small or micro-business in Government Code, §2006.002.

Although the department has determined that the requirements of Government Code, §2001.0225, do not apply to this rulemaking, a regulatory impact analysis is nonetheless provided as follows:

The problem that proposed §57.921(d) - (h) is intended to address is seagrass destruction and is necessary because years of efforts to achieve voluntary compliance have not worked and the problem continues to exist. The benefits and costs of the proposed §57.921(d) - (h) are discussed elsewhere in this preamble. Alternative Measures Considered - The previous educational effort regarding seagrass protection along the Texas coast and specifically the RFBSSA combined with the voluntary no-prop zones were considered as an alternative to continue in the area. Based on public input and the compliance rate observed in the local area there is a need for measures to ensure greater protection of seagrass. The department is considering two different regulatory approaches: the prohibition of seagrass uprooting (proposed §57.921(e) and (f)) and establishment of mandatory no-propeller zones (proposed §57.921(d), (g), and (h)). The data and methodology used were various scientific studies, Coastal Fisheries Division data, and consideration of public comment.

The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed (§57.921(d) - (h)) will not impact local economies.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule (§57.921(d) - (h)).

Comments on the proposed amendment (§57.921(d) - (h)) may be submitted to Jerry L. Cooke, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4492; e-mail: jerry.cooke@tpwd.state.tx.us.

The amendment (§57.921(d) - (h)) is proposed under Parks and Wildlife Code, §81.501, which authorizes the commission to create state scientific areas for the purposes of education, scientific research, and preservation of flora and fauna of scientific or educational value. Section 81.502(c) authorizes adoption of rules and regulations necessary for the management and protection of scientific areas. Parks and Wildlife Code, Chapter 13, Subchapter B, authorizes the commission to adopt regulations governing state scientific areas.

The proposed amendment (§57.921(d) - (h)) affects Parks and Wildlife Code, Chapter 13, Subchapter B, and Chapter 81, Subchapter F.

§57.921.Redfish Bay State Scientific Area.

(a) Purpose: The Redfish Bay State Scientific Area is established for the purpose of education, scientific research, and preservation of flora and fauna of scientific or educational value.

(b) Term: July 1, 2005 through June 30, 2010.

(c) Boundaries:

(1) 27 59.538N; 097 3.858W (Northern extremity of island forming northern boundary of Estes Cove);

(2) 27 59.232N; 097 4.434W (Intersection of Gulf Intracoastal Waterway (GIWW) and Mouth of Cove Harbor);

(3) 27 55.986N; 097 6.804W (GIWW at Rocky Ridge);

(4) 27 53.88N; 097 8.088W (intersection of GIWW and Aransas Pass Shrimp Boat Channel);

(5) 27 53.058N; 097 8.502W (Intersection of GIWW and Brown and Root Channel);

(6) 27 52.32N; 097 9.486W (Intersection of GIWW and mouth of Redfish Bay Terminal);

(7) 27 49.092N; 097 11.46W (Near the southern extremity of Dagger Island where the Corpus Christi Ship Channel and the GIWW intersect);

(8) 27 50.40 N; 097 3.32 W (Intersection of Lydia Ann Channel and Corpus Christi Ship Channel);

(9) 27 52.42 N; 097 2.47 W (A point in Lydia Ann Channel);

(10) 27 55.02 N; 097 03.46 W (East of the mouth of Corpus Christi Bayou).

(d) No person may move, remove, deface, alter, or destroy any sign, depth marker or other informational signage placed by the department [ within, or ] to delineate boundaries[ , ] of the Redfish Bay State Scientific Area or to designate specific zones within the area .

(e) In this section, "seagrass plant" means individuals from the following marine flowering plant species: Clover Grass (Halophila engelmanni), Manatee Grass (Syringodium filiformis), Shoalgrass (Halodule beaudettei), Turtle Grass (Thalassia testudinum), and Widgeon Grass (Ruppia maritima).

(f) No person shall cause or allow any rooted seagrass plant to be uprooted or dug out from the bay bottom within the Redfish Bay State Scientific Area, except as may be permitted by a coastal lease issued by the Texas General Land Office or otherwise permitted under state law.

(g) Within the zones described in subsection (h) of this section, no person may operate any vessel driven by a submerged propeller, except:

(1) in the event of an emergency which threatens human health and safety and which necessitates immediate entrance to or exit from the area;

(2) electric trolling motors;

(3) within ingress and egress lanes or zones marked by the department;

(4) for law enforcement activities;

(5) for permitted scientific research activities; or

(6) as provided in Parks and Wildlife Code, §81.504.

(h) The provisions of subsection (g) of this section apply to the zones described in paragraphs (1) - (3) of this subsection.

(1) Estes Cove. Other than the two ingress and egress lanes described in subparagraphs (A) and (B) of this paragraph, all waters enclosed by a boundary beginning at a point on the edge of the GIWW 27-58-10.67N 097-05-12.10W, southeasterly to a point at the Junction of Big Cut (Yucca Cut) and Traylor Island 27-57-9.47N 097-04-21.32W, northerly along Traylor Island to Turtle Bayou 27-58-25.46N 097-04-3.60W, westerly to the junction with a man-made channel at 27-58-24.48N 097-04-40.47W, northerly along the southern edge the man-made channel to 27-58-37.44N 097-04-51.30W, then southerly along the GIWW to the point of beginning.

(A) An ingress and egress lane within the mandatory no-propeller zone beginning at a point on a man-made channel 27-58-24.48N 097-04-40.47W southwesterly to a point on the southern boundary of the mandatory no-propeller zone 27-57-58.96N 097-05-02.57W.

(B) An ingress and egress lane within the mandatory no-propeller zone beginning on the southern boundary at a point 27-57-44.60N 097-04-50.77W thence extending generally northeasterly along the eastern edge of Talley Island to a point 27-57-51.78N 097-04-33.78W, northeasterly to a point 27-58-00.12N 097-04-23.15W, and northeasterly to a point of ending at 27-58-06.68N 097-04-19.54W.

(2) Terminal Flat. Other than the two ingress and egress lanes described in subparagraphs (A) and (B) of this paragraph, all waters enclosed by a boundary beginning at a point on the edge of the Gulf Intra-Coastal Water Way (GIWW) 27-54-52.80N 097-07-24.80W, southerly to a point on the GIWW 27-53-55.00N 097-07-58.30W, easterly to a point on the Aransas Shrimp Channel 27-53-39.80N 097-07-01.80W, northerly to a point just south of the Terminal Causeway 27-54-53.00N 097-06-43.70W, then westerly and parallel to the Terminal Causeway to the point of beginning on the GIWW.

(A) An ingress and egress lane within the mandatory no-propeller zone beginning at a point just south of the Terminal Causeway 27-54-53.40N 097-07-13.95W, south to point 27-54-26.13N 097-07-13.46W, thence southeasterly to a point on the Aransas Shrimp Channel 27-53-50.54N 097-07-40.70W.

(B) An ingress and egress lane within the mandatory no-propeller zone beginning on the eastern boundary at a point 27-54-15.78N 097-06-53.34W, west by northwesterly to a point 27-54-26.13N 097-07-13.46W.

(3) Brown and Root Flat. Other than the five ingress and egress lanes or zones described in subparagraphs (A) - (E) of this paragraph, all waters enclosed by a boundary beginning at a point off the southeastern tip of Harbor Island 27-50-19.36N 097-07-47.78W, northeasterly to a point on the edge of the Sailboat Channel which runs parallel to Highway 361 27-52-46.60N 097-06-06.6W, southeasterly along the southern edge of the Sailboat Channel to a point 27-51-47.64N 097-05-06.59W, south to a point on the edge of the Corpus Christi Ship Channel 27-50-32.17N 097-04-58.46W, westerly to a point on Harbor Island 27-50-19.33N 097-06-11.08W then west to the point of beginning at the southeastern tip of Harbor Island.

(A) A ingress and egress lane within the mandatory no-propeller zone beginning at a point on a man-made channel 27-51-09.06N 097-07-13.48W, easterly to an endpoint on the man-made channel at 27-50-58.87N 097-06-49.46W.

(B) An ingress and egress lane within the mandatory no-propeller zone beginning at a point on a man-made channel 27-51-04.09N 097-07-1.80W, southeasterly to a point on the man-made channel 27-50-32.01N 097-06-43.98W.

(C) An ingress and egress lane within the mandatory no-propeller zone beginning at a point on a Sailboat channel 27-52-10.11N 097-05-30.24W southeasterly to a point on the man-made channel 27-51-54.79N 097-05-39.40W, southeasterly to a point near the end of the man-made channel 27-51-30.81N 097-05-52.39W.

(D) An ingress and egress lane within the mandatory no-propeller zone beginning at a point on a man-made channel 27-51-42.70N 097-05-46.01W, westerly to an endpoint on the man-made channel 27-51-44.80N 097-06-03.86W.

(E) A zone, irregular in shape, within the mandatory no-propeller zone, all waters enclosed by a boundary beginning at a point 27-50-29.76N 097-06-42.57W, northeasterly to a point 27-50-44.61N 097-06-03.71W, northeasterly to a point 27-51-01.35N 097-05-36.02W, northerly to a point 27-51-32.92N 097-05-43.83W, southwesterly to a point 27-51-30.81N 097-05-52.39W, southwesterly to a point 27-51-16.27N 097-06-24.97W, southeasterly to a point 27-50-47.97N 097-06-06.04W, southwesterly to a point 27-50-32.01N 097-06-43.98W, then southeasterly back to the point of beginning.

(i) [ (e) ] The penalty for violation of this section is prescribed by Parks and Wildlife Code, §13.112.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 19, 2005.

TRD-200504152

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: October 30, 2005

For further information, please call: (512) 389-4775