Texas Administrative Code › Title 31 - NATURAL RESOURCES AND CONSERVATION › Part 2 - TEXAS PARKS AND WILDLIFE DEPARTMENT › Chapter 69 - RESOURCE PROTECTION › Subchapter I - SHELL DREDGING ON THE TEXAS GULF COAST › Section 69.204 - Permit Applications

Current through Reg. 49, No. 28; July 12, 2024
(a) The
				  following procedures will be followed for the issuance of general permits.
(1) All requests for shell dredging permits
				  will be made in writing to the director.
(2) The applicant must give notice by
				  publication simultaneously with its application for three consecutive days in
				  the daily newspaper of greatest circulation in each county or counties to be
				  affected by the issuance of the permit. The publication will set forth in full
				  the application and be subscribed by the person making the application and
				  shall contain any trade or corporate name used by the person.
(3) Upon receipt of an application setting
				  forth the proposed location, quantity and kind of material present, quantities
				  and kinds of materials to be removed, exposed reefs within the area, equipment
				  to be used, detailed plans for removal of material, period of time, and such
				  other information as may be required, and an affidavit that paragraph (2) of
				  this subsection has been complied with, the director will set a time and place
				  for hearing to consider whether a permit will be granted and shall release that
				  information to the press and mail that information to any person who has
				  requested the information in writing and will notify the applicant.
(4) The director, or any employee of the
				  department authorized by the director, may hold any hearing pursuant to these
				  rules in the office of the department in Austin, Texas, or at such place as the
				  director may designate.
(5) At the
				  hearing, the hearing officer shall preside and hear any relevant evidence
				  offered by the applicant or any other interested person. The applicant shall
				  first show that paragraph (2) of this subsection has been complied with. Any
				  person may appear in person or by counsel. Evidence or testimony may be
				  presented orally or in writing by affidavit or deposition. Such written
				  evidence should be filed in the office of the department prior to the hearing
				  date.
(6) The director may consider
				  the following criteria in determining whether to grant or deny a permit:
(A) the past performance of the applicant
				  with respect to obedience and strict observance of the terms of past
				  permits;
(B) whether the applicant
				  shows evidence of financial responsibility;
(C) the ability of the applicant to operate,
				  including facilities for operation;
(D) the existence of shell deposits in the
				  area of the application;
(E)
				  whether the granting of the permit would have a material adverse effect on
				  recreational activity in the general area affected by the permit;
(F) whether the granting of the permit would
				  have a material adverse effect on shrimping, oystering, fishing, or any part of
				  the seafood industry in the general area affected by the permit;
(G) the effect, if any, on navigation in the
				  general area affected by the permit.
(7) The director will consider the following
				  criteria in determining whether to grant or deny a permit:
(A) whether operation under the proposed
				  permit would damage or injuriously affect any oysters, oyster beds, or
				  fish-inhabited waters thereof or adjacent thereto;
(B) whether such operation would damage or
				  injuriously affect any island, reef, bar, channel, river, creek, or bayou used
				  for frequent or occasional navigation or change or otherwise injuriously affect
				  any current that would affect navigation;
(C) the requirements of industry for such
				  shell materials and the relative value thereof to the State of Texas for
				  commercial use.
(8)
				  Within a reasonable time after the conclusion of the hearing, the director will
				  make findings of fact and determine whether the permit is granted or
				  denied.
(9) In addition, the
				  director may make such reasonable requirements of the permittee as deemed
				  necessary to effectuate Chapter 86 of the Parks and Wildlife Code. The director
				  will require that the permittee make a good and sufficient bond payable to the
				  department and conditioned upon the prompt payment of charges for shell removed
				  and any damage done to property under the ownership of the state.
(10) The director will require the permittee
				  to make a sworn report not later than the tenth day of each month on all
				  materials removed from the public waters during the preceding month at the
				  approved location or locations and to maintain permanent records of all such
				  materials removed, stockpiled or sold and that such records be made available
				  to representatives of the department at any time. (A report each month will be
				  required whether any materials are removed or not.)
(11) The director will require the permittee
				  to remit to the department the established price on shell removed during the
				  month for which each report is made. (Prices are subject to change by the
				  commission with the approval of the governor.)
(12) The director will require that the
				  permittee not interfere with any state or federal improvements, navigation,
				  fish life, or riparian rights of landowners in or along any navigable stream or
				  public body of water.
(13) No
				  special privilege or exclusive right will be granted to any person; however, if
				  it is determined that the use of excessive equipment is causing siltation or
				  other damage to oysters, oyster beds, or fish-inhabited waters thereof, or
				  adjacent thereto, the director may limit the quantity and/or type of equipment
				  used by permittee in any particular area.
(14) No permit will be assignable.
(15) Prior to issuing a permit under this
				  section for shell dredging within the Coastal Management Program boundary as
				  defined in §
											503.1
				  of this title (relating to Coastal Management Program Boundary) the department
				  shall comply with the requirements of §
											69.91 and
				  §
											69.93 of
				  this title (relating to Consistency; Thresholds for Referral) and §
											505.30
				  of this title (relating to Agency Consistency Determination). Grant or denial
				  of an application for a permit under this section is not a final agency action
				  appealable for purposes of judicial review under the Texas Administrative
				  Procedure Act, Texas Government Code, Title 10, Subtitle A, §2001.171,
				  until the jurisdiction of the Coastal Coordination Council to review that
				  action has lapsed.