Texas House Bill 1300, which gave the Texas Parks & Wildlife Department (TPWD) authority to regulate cultivated oyster mariculture (growing oysters in captivity) was passed on May 24, 2019, and went into effect on September 1, 2019. With this bill, Texas joined the rest of the Gulf Coast states in legalizing oyster farming.
Texas mariculture is regulated under the Texas Administrative Code, Title 31, Part 2, Chapter 58 Subchapter E, which became effective on August 24, 2020. The provisions of Subchapter E are summarized below. Notes in italics are additional explanations from Texas Sea Grant (TXSG).
Jump to Sections
§58.350 Applicability │ §58.351 Application of Shellfish Sanitation Rules of DSHS │ §58.352 Definitions │ §58.353 General Provisions │ §58.354 Oyster Seed Hatchery │ §58.355 Permit Application │ §58.356 Renewal │ §58.357 Amendment │ §58.358 Reporting and Recordkeeping │ §58.359 Agency Decision to Refuse to Issue or Renew Permit; Review of Agency Decision │ §58.360 Prohibited Acts │ §58.361 Violations and Penalties
§58.351 Application of Shellfish Sanitation Rules of DSHS
All mariculture activities must comply with relevant provisions of the rules of the Department of State Health Services (DSHS) Chapter 241, Subchapter B. TPWD and DSHS jointly regulate shellfish sanitation in Texas.
§58.352 Definitions
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Administratively complete: An application for a permit or permit renewal that contains all information requested by the department, as indicated on the application form, without omissions.
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Container: Any bag, sack, box, crate, tray, conveyance, or receptacle used to hold, store, or transport oysters possessed under a permit issued for oyster mariculture.
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Cultured oyster mariculture facility (facility): Any building, cage, or other infrastructure within a permitted area.
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Gear tag: A tag composed of material as durable as the device to which it is attached.
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Infrastructure: A building, platform, dock, vessel, cage, nursery structure, or any other apparatus or equipment within a permitted area.
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Larvae: The free-swimming, planktonic life stage of an oyster.
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National Shellfish Sanitation Program (NSSP): The cooperative program administered by the United States Food and Drug Administration for the sanitary control of shellfish produced and sold for human consumption in the United States and adopted by rule of the DSHS.
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Nursery structure: A tank or chamber or system of tanks or chambers or other, similar devices in which a cultivated oyster is grown.
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Oyster seed: Shellstock of less than legal size.
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Permitted area: The geophysical and/or geographical area identified in a permit where cultivated oyster mariculture activities are authorized.
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Permit identifier (permit ID): A unique alphanumeric identifier issued by the department to a permittee holding a Cultivated Oyster Mariculture permit.
TXSG Note: The permit ID identifies a specific area where cultivated oyster mariculture activities are authorized to take place. It must be attached to tags, labels, and equipment. -
Permittee: A person who holds a permit issued for cultivated oyster mariculture under this subchapter.
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Prohibited area: Defined by Texas Health and Safety Code, §436.002(27) as an “area where the department finds, according to a sanitary, chemical, or bacteriological survey, that the area contains aquatic life that is unfit for human consumption. A prohibited area for molluscan shellfish means a molluscan shellfish growing area determined to be unacceptable for transplanting, gathering for depuration, or harvesting of molluscan shellfish. The only molluscan shellfish removal permitted from a prohibited area is for the purpose of depletion.”
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Restricted area: Defined by Texas Health and Safety Code, §436.002(30) as a “molluscan shellfish growing area that is determined to be unacceptable for harvesting of molluscan shellfish for direct marketing but that is acceptable for transplanting or gathering for depuration. A restricted area may be closed for transplanting or gathering for depuration when the area does not meet the restricted area criteria established by the NSSP.”
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Restricted visibility: Any condition in which visibility is restricted by fog, mist, falling snow, heavy rainstorm, sandstorms, or any other similar causes. TXSG Note: Standard for the visual markers that mark a permitted area.
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Shellstock (stock): Live eastern oysters (Crassotrea virginica) in the shell.
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Wild-caught oyster: An oyster harvested from natural oyster beds.
§58.353 General Provisions
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The only people who may participate in cultivated oyster mariculture are those who physically possess an approved permit or a person acting as a subpermittee. It is illegal to engage in any oyster cultivation without an appropriate authorization from TPWD.
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A Cultivated Oyster Mariculture Permit (COMP) allows a person to purchase, receive, grow, and sell cultivated oysters.
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A COMP – Nursery Only (nursery permit) allows a person to purchase, receive, and grow oyster seed and larvae, and sell oyster seed to a COMP permittee.
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Permittees may only grow oysters in the location specified in authorized permit.
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Permits are valid for 10 years, under specific limitations established by these rules.
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Unless otherwise authorized in writing from TPWD, the permittee must provide evidence that they have planted at least 100,000 oyster seed per acre of permitted area within one year from the date of COMP.
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Unless otherwise authorized in writing from TPWD, the only oysters that may be raised in Texas are seed and larvae from native eastern oyster (Crassostrea virginica) broodstock collected in Texas waters and spawned in a Texas hatchery.
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TPWD may authorize a permittee to import the following on or before December 31, 2027:
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Triploid, tetraploid seed, larvae, or semen/eggs produced at a permitted out-of-state hatchery along the Gulf of Mexico
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Seed, larvae, or semen/egg produced from Texas broodstock at a permitted out-of-state hatchery
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TPWD authorization for importing oysters must be made in writing and provide for any permit conditions the department deems necessary.
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The TPWD will not permit the possession of any oyster, larvae, or seed that represents a threat to the native oyster population, including to genetic identity.
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The department may inspect any permitted area, facility, infrastructure, container, vessel, or vehicle used to engage in cultured oyster mariculture; sample oysters contained therein to determine genetic lineage; and specify any permit provisions deemed necessary.
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The COMP permittee must notify TPWD within 24 hours of discovering any disease or condition, either natural or manmade, that creates a threat to stock or larvae. Discovery of dermo (Perkinosis, Perkinsus marinus) does not apply to this subsection.
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The department may take any action it considers appropriate, including ordering the removal or all stock and larvae and/or halting the permitted activities, if:
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it is determined that a disease condition other than dermo (Perkinosis, Perkinsus marinus) exists; or
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a federal or state entity revokes or suspends a permit under section §58.355.
TXSG Note: Permits can be revoked or suspended if a permit holder fails to comply with permit conditions.
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The TWPD may suspend any or all cultivated mariculture permitted activities, including removal of stock and larvae, if the department determines that a permittee has not complied with any provision of this subchapter. The suspension will remain in effect until the provisions are met and the TPWD provides written authorization that activities may resume.
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Size limit:
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Oysters less than 2.5 inches in length may not be removed from a COMP-permitted area.
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Oysters greater than 1 inch in length produced under a nursery permit in a Prohibited or Restricted Area must be transferred to an DSHS-approved depuration (purification) area for a minimum of 120 days before harvest.
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No person may remove or cause the removal of oysters obtained by a COMP from a nursery facility located in waters classified as a Prohibited or Restricted Area until a minimum of 120 days after transfer to the COMP.
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Oyster harvesting is illegal from sunset to 30 minutes after sunrise.
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Permitted mariculture activities may only be conducted by the permittee named on the permit or a subpermittee as specifically outlined below:
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A permittee may designate subpermittees to perform tasks in the permittee’s absence.
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At all times a subpermittee is conducting permitted activities, they must have on their person (a) a legible copy of the COMP, and (b) a completed subpermittee authorization form issued by TPWD that is signed and dated by both the permittee and subpermittee.
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It is illegal for a permittee to allow anyone who is not listed as a subpermittee with the department to perform COMP-permitted activities
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The permittee and subpermittee are jointly liable for COMP violations.
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Before installing any infrastructure within the permitted area, the permittee must install boundary markers (buoys or permanent markers) and safety lights and signals. These must be maintained until the permit is terminated.
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Boundary markers must be at least 6 inches in diameter; extend at least 3 feet above the water at mean high tide; be visible in shape and color for at least a half-mile under normal navigable conditions; and be marked with the permit ID assigned by the department, with characters at least 2 inches in height that will not be obscured by water of marine growth. Plat #551
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Safety lights and signals must be installed as required by federal regulations and the United States Coast Guard (USCG) and shall be repaired or restored within 24 hours of notification from either USCG or TPWD.
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Permits cannot be transferred or sold.
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Permittees must remove all equipment and infrastructure within 60 days of permit expiration or revocation, at their own expense.
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Valid gear tags must be attached to all pieces of infrastructure (e.g., containers, cages, bags, sacks, totes, trays, nursery structures) within the COMP area. All gear tags must be legible and show the permittee’s name, address, and permit ID.
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Oysters bound for sale from the COMP area must be tagged in accordance with NSSP and DSHS regulations concerning shellstock identification. All oyster containers must be tagged with the delivery destination by permit ID, business name, or physical address. It is illegal to remove or cause the removal of oysters without proper tagging.
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When transporting oyster seed or larvae outside of the COMP area, the person must possess a completed Oyster Seed Transport Document (OSTD) provided by the department. The OSTD must contain the name, address, and permit ID of each person from whom the oysters were obtained and/or delivered and precisely account for and describe all containers in possession. Each OSTD must contain a unique, sequential ID for each transport, and no ID may be used more than once.
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A vessel used to engage in COMP activities must prominently display an ID plate supplied by the department.
§58.354 Oyster Seed Hatchery
All oyster seed or larvae produced from and leaving a hatchery that is permitted to produce seed and larvae from wild-caught oysters must be accompanied by a completed OSTD under provisions of Chapter 57, Subchapter F.
§58.355 Permit Application
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The applicant must submit a complete application for the department to review. Incomplete applications will not be reviewed.
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The department will publish a notice of permit application for public comment, and all relevant public comments will be taken into consideration.
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For proposed facilities within or partially within public waters, the department will hold a public meeting in the city or municipality closest to the proposed COMP area to take public comment. The department will publish notice of the meeting two weeks before the meeting, either in print or electronically, in the closest daily newspaper to the COMP area. The applicant is responsible for the cost of the newspaper notice and no permit will be issued until the department receives the payment.
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Each COMP application will require an applicable permit fee as specified under Texas Administrative Code §53.13 Business License and Permits (Fishing) (currently $200).
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An annual nonrefundable fee will be required by the department based on the size of the permitted area (currently $450 per acre per year in public water or $170 per acre per year on private property).
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For nursery structures in public waters, the department will require an additional surcharge to the annual fee described above (currently $170 per acre per year plus $0.01 per square foot per year if the nursery facility is located in public water).
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Fees shall be recalculated at three-year intervals on the effective date of the COMP and adjusted to any change in the Consumer Price Index.
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Fees will be due annually on the anniversary date of COMP.
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§58.357 Permit Amendments
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The department may amend an issued permit (if, for instance, the applicant wants to expand or intensify some aspect of production) if the permittee:
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has submitted a completed department-approved amendment application; and
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possesses all the necessary authorizations and permits required by other state and federal agencies.
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The department will not approve amendments to increase COMP area. To increase COMP area, permittee must apply for a new COMP (starting over at §58.355 Permit Application)
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An expired COMP is not eligible for permit amendment.
§58.358 Reporting and Recordkeeping
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A permittee shall:
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Maintain current and accurate records of shellstock and larvae acquired, introduced, removed, or harvested from the permitted facility.
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Submit monthly harvest reports on or before the 10th day of each month as required by Texas Parks & Wildlife Code §66.019
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Complete and submit an annual report no later than January 31 of each year.
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The permittee must continuously maintain these records and reports for two years from the date of the record or report.
TXSG Note: Violations of records or reports are a Class C misdemeanor.
§58.359 Agency Decision to Refuse to Issue or Renew Permit; Review of Agency Decision
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The department may refuse to issue or renew a permit to any person convicted of, pleaded no contest to, received deferred adjudication, or assessed an administrative penalty for a violation of:
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This subchapter;
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Parks & Wildlife Code, Chapters 47 (Commercial Fishing Licenses), 66 (Fish and Aquatic Plants), 76 (Oysters), 77 (Shrimp), 78 (Mussels, Clams, and Crabs), or 75 (Cultivated Oyster Mariculture) for which a commercial license or permit is required;
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Provisions of the Parks & Wildlife Code punishable as a Class A or B misdemeanor, state jail felony, felony, or offense under Parks & Wildlife Code §63.002 (Possession of Live Game Animals); or
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The Lacey Act (illegal possession of plants and wildlife) in 16 U.S.C. §§3371-3378.
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The department may refuse a permit if there is evidence that someone is acting on behalf of another person who is prohibited from obtaining a COMP under this chapter.
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The department may refuse a permit to anyone who does not meet the criteria of this subchapter, including failure to submit a complete COMP application.
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An applicant for permit, renewal, or amendment may request a review of the department’s decision.
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The applicant must request review within ten working days of being notified that the application has been denied.
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Within ten working days of receiving the request for review, the department will establish a date and time for the review.
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The department shall conduct the review within 30 days of receipt of request, unless another date has been established in writing mutually between the department and requester.
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The request for review shall be presented to a review panel consisting of three department managers with understanding of oyster mariculture requirements of other permits issued by the department, approved by the executive director or designee.
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The review panel decision is final.
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§58.360 Prohibited Acts
Except as specified in this subchapter, it is an offense for a person holding a COMP to:
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possess a commercial dredge or oyster tongs in the COMP area or aboard a vessel transporting oysters;
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commingle or allow commingling of wild-caught oysters possessed under Parks & Wildlife Code Chapter 75 and this subchapter;<
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fail to notify the department of a discovery of disease condition within the COMP area within 24 hours;
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fail to notify the department of a discovery of potential release of unintentional shellstock or larvae within 24 hours;
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fail to maintain corner markers of COMP area in public waters;
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fail to remove all infrastructure from COMP area in public waters within 60 days of permit expiration or revocation;
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operate a COMP or nursery facility except as specified in the provisions of the permit; or
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operate a COMP or nursery facility without all authorizations and permits from required federal, state, or local government authorities.
§58.361 Violations and Penalties
Any person that violates provisions of the permit commits an offense that is punishable by penalty prescribed by Parks & Wildlife Code, §58.360. A permit issued under this section is not a defense to prosecution for any conduct not specifically authorized by the permit.
