Permitting Process Overview

Step 1: Site Review and Consultation

Once you have identified the site you would like to use for your cultivated oyster mariculture (COM) farm or nursery, the first step is to consult with the Texas Parks & Wildlife Department (TPWD) to do an initial review of the site that could help identify red flags that could prevent you from being approved for a permit. This step is optional but strongly encouraged to save you time and money.

At this time, TPWD will check to make sure your site meets minimum requirements:

• Grow-Out (farm) locations must be in Conditionally Approved or Approved waters as designated by Texas Department of State Health Services (https://www.dshs.texas.gov/seafood-aquatic-life-group/information-on-consumption-advisories-possession-bans-rescinded-orders-seafood-aquatic-life/shellfish-harvest-map)

• Farm boundaries minimum requirements:

  • 200 feet from seagrass habitat

  • 500 feet from wild oyster habitat

  • 2,000 feet from rookeries (bird breeding colonies)

  • Minimum water depth of 2.5 feet

  • 1,000 feet from shoreline (or you have landowner permission to be closer)

  • 1,000 feet from oil and gas infrastructure OR leases (final ruling determined by Texas General Land Office)

• Inform you of potential public use conflicts (e.g., popular fishing area, visible nuisance to waterfront property owners)

Please note that consultation with TPWD does not guarantee that your permit will be accepted as factors such as findings during the natural resource survey or other agencies denying authorizations may come into play. This step is intended to identify early red flags before you invest too much time or money in a proposed site.

Step 2: Coordinate with Texas General Land Office

Check with the Texas General Land Office (GLO) for that site buffers oil and gas structures by 1,000 feet, other conflicts/concerns from the GLO, or that there are no existing applications or leases on your proposed farm site. Although not required, this will expedite the GLO leasing process and avoid investing in a site that is unavailable for lease.

You can do a preliminary check for leases or applications on the GLO Land and Lease Viewer, but for the most up-to-date information, email Danielle DeVacque at Danielle.DeVacque@glo.Texas.gov.

Step 3: Natural Resource Survey

Next, you must do a natural resource survey to create a detailed map and assessment of the habitats on your proposed site. The survey is an intensive process, so TPWD strongly encourages you to do a preliminary field visit first. This can be as simple as taking your boat out and exploring the site, using a pole to feel for oyster beds, seagrass or other barriers that might make you decide you need to move your site.

Once you’re satisfied with your proposed site boundaries, you should begin your survey. All surveys must contain ground-truthing sediment samples of the site and buffers around the site. If you opt to include a sidescan sonar survey of the site, fewer sediment samples are required. See TPWD’s Natural Resources Survey for Cultivated Oyster Mariculture Sites for detailed requirements.

Side-Scan Sonar

This method works best for larger sites (5 – 10 acres) because you don’t have to take as many samples per acre. However, the equipment is more expensive and has seasonal limitations; the technique can only be used for surveys conducted from May 1 to November 30 to ensure any potential sea grass is detected. Sonar surveys must be “ground-truthed” (verified) with sediment grabs:

• 16 samples per acre in permit area (usually 69-foot spacing)

• 9 samples per acre in 200-foot buffer (usually 104-foot spacing)

You may conduct side scan surveys using recreational sonar equipment. For more information and TPWD guidance on recreational sonar use for these surveys, please contact the Cultivated Oyster Mariculture Program coordinator.

Sediment Sample Only Survey

For smaller sites, only sediment grab sample surveying might be more cost effective. It can be performed year-round, making it a good option for winter surveys.

• 49 samples per acre in permit area (usually 35-foot spacing)

• 16 samples per acre in 500-foot buffer (usually 69-foot spacing)

All grab samples (for both types of surveys) should be collected with a tool that samples a minimum area of 4 to 6 inches (e.g., a 4-inch-diameter PVC pole, a post-holer, etc.).

Required Documents

You must provide the following documents to TPWD:

• Side-scan sonar files, if applicable

• Excel or shapefile of sampling locations (GPS coordinates) and substrate description

• Photos of each sample

• Word or PDF summary of findings. Briefly describe what you did and what you found.

  • Survey metadata (who, what, where, when and how)

  • Summary of any habitats detected (including the depth of each habitat and percent of samples that contained sensitive habitat)

  • Maps showing site boundaries, buffer zone, and all samples taken

Email oyster.mariculture@tpwd.Texas.gov to ask for a file-sharing service link to submit survey documents.

What Counts as a Sensitive Habitat?

When you’re looking for sensitive habitats (i.e., those with oysters or seagrass), you may not find live oysters or actively growing seagrass. However, that doesn’t mean you haven’t found oyster or seagrass habitats. At times, the only evidence will be shells or the underground living part of the seagrass plant (the rhizome). Texas uses the following definitions for oyster and seagrass habitats:

Oyster Habitat

The presence of live oysters OR the presence of consolidated oyster shell substrates OR shells greater than 25 mm.

In a grab-sample, this would be any sample that is dominated by shell pieces or contains shell fragments greater than 25 mm. In a side-scan sonar survey, this would be any visible feature where sediment samples confirm the presence of shell material. You would have to avoid the entire oyster feature using a 500-foot buffer.

Seagrass Habitat

The presence of above-ground or below-ground (rhizome) biomass of any of the five species of seagrasses that occur in Texas.

In a sediment sample, this would be any sample that has rooted seagrass material. In a side-scan survey, this would be any visible feature that sediment samples confirm the presence of rooted seagrass. You would need to avoid the entire seagrass feature using a 200-foot buffer.

Step 4. Texas Parks & Wildlife Department Application

Now that you have completed the natural resource survey, it’s time to complete and submit the TPWD Cultivated Oyster Mariculture permit application. Much of the information you provide for this application is also required for the other authorizations you must receive The process in now done through the online TPWD permitting portal (instructions), but you can find the application questions for a Grow-Out (farm) site or a Nursery-Hatchery site on their website to compose your answers ahead of time. This process often involves back-and-forth communication with TPWD as they request clarification or more information. To make that process easier, we have listed below the application questions and what TPWD is looking for in each answer. Once you receive your permit, the answers to this application will serve as your operations plan and guide TPWD’s annual inspections of your COM operation.

TPWD Application Questions

Question 1 – Describe how the gear presented in the Gear Table and layout diagrams is configured and operated. Make sure your text description matches and describes the diagrams. This information can be supplemented by product brochures describing the operation of the gear, if so please indicate. Descriptions should answer:

• How is gear anchored?

• How does the mainline attach to anchors and how does gear attach to mainline?

• How are the closures of cages and bags secured?

• Are buoys used to mark gear (anchors, lines, etc.), if so, how?

• How do you anticipate marking corner points and site boundary (pending approval and any additional requirements requested by U.S. Coast Guard)?

Question 2 – Describe your proposed tending/maintenance and harvesting activities (i.e., elevating or flipping cages, methods for cleaning gear, tumbling, sorting, and harvesting, etc.). Indicate if gear will be tended from boat or by wading.

Question 3 – Texas Administrative Code §58.353 (r) requires a valid gear tag be attached to each piece of gear. One of the purposes of tagging gear is so it can be identified and retrieved if lost. At a minimum, tags must have the name and address or phone number of the permittee and the permit number.

• Describe how gear will be tagged. What material will be used and how will tags be affixed to the gear?

• A requirement of permit provisions is that you report lost gear to the Department on a provided form. Give written acknowledgement that you understand this requirement.

Question 4 – Site access:

• How far is the proposed site from the emergent shoreline?

• How will you access the proposed site? (This description should be consistent with your Access Route Map.)

• How often do you anticipate visiting the site?

• If accessing from the adjacent shore, please describe how you will avoid negative impacts to sensitive shoreline habitats (if present).

• Will your proposed activities affect ingress and egress of adjacent property owners?

Question 5 – Provide a detailed Hurricane/Tropical Storm Plan. Plan should include management details for the protection of all equipment and oysters within permitted area beginning 72-hours before projected landfall through the steps taken after a storm passes. Plan should include what specific factors will be considered when deciding to execute the plan (e.g., what triggers will be used for sinking the cages? Hurricane Category? Cone of Impact?). How will you ensure you can execute your plan?

Question 6 – If birds become a sufficient problem, such that their waste presents a human health risk, you will be required to have bird deterrent measures. Describe how you would plan to mitigate or minimize the potential pollution impact of birds, if needed. Predator deterrents should also be included in the Gear Table and gear drawings.

Note – only deterrents that are listed and approved in the operations plan will be allowed; a permit amendment will be required for additional predator deterrents.

Question 7 – All COM permit holders must comply with all health and safety regulations required by Texas Department of State Health Services (TDSHS) in the harvest and sell of your product. This includes adhering to a 14-day minimum re-submergence prior to harvest and keeping of records on re-submergence dates (after desiccation, tumbling, or when oysters are out of the water for significant periods of time). Product must be sold to a licensed Wholesale Fish Dealer with oyster certification. COM permit holders may conduct direct sales of your product if certified by TDSHS. Select below if you plan on selling to a certified dealer or will you be seeking a certification from TDSHS. Also, please give written acknowledgement that you understand the above sanitation requirements.

Select:          __Sell to a Certified Dealer          __Direct sale

Question 8 – How do you plan to minimize entanglement or entrapment of other species (with emphasis on Threatened and Endangered species) in your gear?

Describe efforts to keep lines taught, stay appropriate distances from any threatened and endangered species, and monitor gear on a regular basis. Describe if you will comply with the NOAA Fisheries Protected Species Construction Conditions and Vessel Strike Avoidance Measures.

Question 9 – How do you plan to keep your gear and any non-organic waste produced in mariculture activities (zip ties, old line, floats, etc.) from becoming marine debris?

Question 10 – Texas Administrative Code §58.353 (f) requires a minimum of 100,000 oyster seed per acre of permitted area be stocked each year. For example, if your permitted area is 10 acres you must stock 1 million oyster seed per year, even if you only have gear in a smaller portion of that area. Please give written acknowledgement that you understand this requirement.

Question 11 – Biosecurity and genetic integrity of cultivated oysters is of the upmost importance. Review the Biosecurity and Genetic Integrity Plan (link). Only hatcheries and nurseries that have been vetted by TPWD can be used as suppliers (a current list of approved facilities can be supplied upon request). Broodstock for your product must comply with the oyster region where your site is located. Before seed is stocked at your site you must submit an Oyster Transport Request form and the appropriate disease screenings and be given an Oyster Transport Authorization document. Records must be kept for 2-years on the broodstock origin and source of oyster seed (including water sources status: Approved, Conditionally Approved, Restricted, Prohibited).

• Identify below from which region(s) the broodstock producing seed oysters for your site can originate.

• Please give written acknowledgement that you understand you must follow biosecurity and genetic integrity guidance and submit all appropriate forms and documents when transporting oysters.

Question 12 – Texas Administrative Code §58.353 (i) requires you to notify the department within 24 hours of discovery of any disease condition within a permitted area. Notifications should be to the Ecosystem lead (of the system your site is located) by phone and email and the Oyster Mariculture Program Coordinator by phone and email; if you are unable to reach those individuals call the Texas Game Warden dispatch by phone (512-389-4848). The department may take any action it considers appropriate (TAC §58.353 (j)) upon determination of a disease condition. Please give written acknowledgement that you understand this requirement and willingness to comply with TPWD instructions given in the situation.

Clearly explain how all gear is connected and operated to assure TPWD that gear is securely attached, and marine debris will not be a problem. Detail the number and location of gear (e.g., buoys). TPWD will check for these details on their annual site inspections.

What will you be doing, when, and how often? This should give TPWD an idea of frequency and intensity of disturbances at site caused by your farming activities. It also shows that you will be properly maintaining gear. You should show that you will comply with the FDA’s desiccation and resubmersion requirements by resubmerging gear for at least two weeks before selling your oysters.

This answer shows TPWD that you read their requirements and will be tagging gear appropriately. Explain what kind of tags you will be using, how you will waterproof and secure them, and how often you will inspect and replace/maintain tags. TPWD wants to make sure that tags will not come loose and become marine debris.

TPWD staff is making sure that your access route does not disturb nesting birds or sensitive habitats. For instance, you should show that you will avoid walking through seagrass habitats, sensitive wetlands (i.e., marshes or tidal flats) or wild oyster beds.

TPWD wants to ensure that your gear will not block public access to the shoreline for wadefishing or other activities. Additionally, if the site is less than 1000’ from shore, you must show that you have landowner permission for your operation. Although the waters are public, your gear is still private, so although other people are not allowed to touch or interfere with your gear, they can access the site. You cannot put up “No Trespassing” signs.

Be as detailed as possible describing what you will do in the event of a tropical storm. Since your plan should include a tiered response (see Hurricane Preparedness page), be sure to include what events trigger tiers of the plan (e.g., as soon as a tropical storm forms in the Gulf of Mexico, you will begin tier 1).

The FDA’s National Shellfish Sanitation Program requires COMs to use bird deterrents as a public health safeguard to minimize feces contaminating oysters. Overhead netting is not allowed.

Maps Required for TPWD Application

Vicinity Map

Overhead, “zoomed-out” view showing corner coordinates and location within bay

Access Route Map

Can be combined with the vicinity map. This map shows TPWD that your access plan has no negative impacts to sensitive habitats.

Overhead Site Layout

“Zoomed-in” view showing details of gear layout within the permitted area. If you repeat the same layout in different sections, you can draw one detailed example of the layout (including spacing) and specify where it will be repeated. TPWD is looking for access lanes so that COM workers or, if applicable, the public can get through the site.

Cross-section Site Map

Diagram of gear in all potential configurations (e.g., floating for desiccation, feeding position, sunken for hurricane, etc.). Be sure to note the depth in each position and both high- and low-water lines. Your diagram should show how and where gear are attached.

Gear Information Required for TPWD Application

The gear table should list all gear you plan to use on the farm. Write the maximum number of each type and describe dimensions, material, etc. If you’re using commercial gear, sending a brochure with the make and model number of each piece you plan to use is a sufficient description. Include photos of all gear types, especially hand-made gear. TPWD will want to see what types of buoys, anchors, chains, and lines (e.g., braided or monofilament) you will use.

Step 5. Public Meeting

The law requires TPWD to host a public meeting for planned activities in public waters to provide information and allow for public comments. Applicants are required to post (and pay for) a public notice at least two weeks before the meeting. Notices can be in print or electronic format in the daily newspaper of general circulation nearest to the proposed site. TPWD will provide applicants with draft language for the advertisement. You must give TPWD proof (a receipt) of the advertisement.

Next, TPWD will post a meeting link on the TPWD website so that the public can attend via Zoom or in person, where applicable. During the meeting, TPWD will present information on the proposed site and planned activities using figures and maps you provided during the application progress. Anyone can request to see your application; TPWD will redact your personal information, but the location of the site and plans for the COM are on public record.

The public may ask questions and give comments during the meeting. For Zoom meetings, they must submit their official comments via email to oyster.mariculture@tpwd.Texas.gov. TPWD reviews comments and responds as needed.

Step 6. Get Conditional Permit

At this stage, TPWD will issue a conditional COM permit that will allow you to proceed with the required paperwork for other regulatory agencies. TPWD will include in the permit all the information the other agencies need, including operations plan, natural resource survey, public comments, and TPWD approval for the other agencies to proceed. Include this permit in your application to the agencies listed in step 7.

Step 7. Get Other Agency Permits

Depending on your COM operation, you may need the following authorizations from other regulatory agencies.

Surface Lease from the Texas General Land Office

The Texas GLO oversees the leasing process for coastal land and surface waters. Contact the GLO Permitting Service Center (PSC) to request a Surface Lease application or for assistance navigating their permitting process and USACE permitting.

Corpus Christi PSC

602 N. Staples St., Suite 240
Corpus Christi, Texas 78401
361-886-1630
361-888-9305 (fax)
permitting.assistance@glo.texas.gov

Galveston PSC

Texas A&M University Galveston Campus
1001 Texas Clipper Road, Building 3026, Room 912
Galveston, Texas 77553
409-741-4057
409-741-4010 (fax)
866-894-7664 (toll free)
permitting.assistance@glo.texas.gov

 

NWP 48 Verification from the US Army Corps of Engineers

The US Army Corps of Engineers (USACE) Nationwide Permit 48 generally authorizes mariculture activities in coastal waters. You should submit a Pre-Construction Notification (USACE form 6082) for a review of your plans and verification from USACE. Texas is in the “Galveston” district, so use the Galveston district website to access the application form.

Authorization from the Texas Commission of Environmental Quality

The Texas Commission on Environmental Quality is responsible for protecting Texas water resources. They have divisions for water intake and water discharge. To determine the appropriate form for your operation, visit the Aquaculture General Permit website.

Marking Determination and Paton from the US Coast Guard

You must comply with the US Coast Guard (USCG) marking requirements for site boundaries. A Private Aids to Navigation (PATON) permit will be required to install the required permanent navigation aids in public waters.

Email the USCG District Eight at D8oanPATON@uscg.mil and request a marking determination. They will tell you what markings are required and whether you need to fill out a PATON permit application. The Marking Determination and documentation of further PATON process is required by TPWD before a final COM permit can be issued.

Texas Department of State Health Services

The Texas Department of State Health Services (DSHS) jointly regulates shellfish sanitation with TPWD. If you are selling your oysters directly to a restaurant or for public consumption, you must apply for a Shellfish Certificate of Compliance from DSHS. If you have DSHS certification, you can directly sell your oysters without a TPWD Wholesale Fish Dealer’s permit. If you opt to not get a certification you must sell your oysters to permitted Wholesale Fish Dealer that also has DSHS oyster certification.

Texas Administrative Code Title 25, Part 1, Chapter 241, Subchapter B: Molluscan Shellfish

Step 8: Get Final Permit

Finally, submit documentation of your other agency authorizations through the online permitting portals. Once all these authorizations are received, TPWD will send you a bill for your first year’s Annual Fee, which you must pay before TPWD can issue a final permit to authorize farming activities.

Annual reports will be due in January, regardless of when you received your permit in the previous year.