1. (a) General Rules.

   1. (1) Leases will not be granted on areas determined to be natural oyster beds or that have been publicly fished within eight years of the lease application.

   2. (2) No permit will be issued for a lease on:

      1. (A) a natural oyster bed;
      2. (B) a bay shore area within 100 yards of the shore;
      3. (C) an area subject to an exclusive riparian right as provided under Parks and Wildlife Code, §76.004 and §76.005;
      4. (D) an area already under certification as a private lease; or
      5. (E) an area within 1,000 feet of an established lease not owned or controlled by the applicant.
   3. (3) The failure to pay any rental when due terminates the lease.

2. (b) Application For Oyster Lease.

   1. (1) All applications for private oyster leases will be submitted to the department for consideration and shall be accompanied by a nonrefundable application fee of $20.
   2. (2) The applicant shall mark the proposed lease 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. (3) Each application shall contain:

      1. (A) applicant's name and address;
      2. (B) affirmation that applicant is a United States citizen;
      3. (C) a description of the lease, including a plat showing approximate size and location in relation to state land tracts; and
      4. (D) signed letters each from the U.S. Army Corps of Engineers, General Land Office, and the Seafood Safety Division of the Texas Department of Health indicating approval for the proposed lease site.

   4. (4) An authorized employee(s) of the department shall inspect the proposed lease site or sites to determine its location with respect to:

      1. (A) natural oyster reefs;
      2. (B) shoreline;
      3. (C) areas restricted or prohibited by the Texas Department of Health;
      4. (D) spoil disposal areas;
      5. (E) other private leases; and
      6. (F) riparian rights.
   5. (5) An authorized employee(s) of the department shall inspect the proposed lease site or sites to determine the presence of exposed shell.
   6. (6) If exposed shell is found within the proposed lease site or sites, an authorized employee(s) of the department shall determine the presence of live oysters.

3. (c) Public Hearing on Application.

   1. (1) After having determined the proposed lease site meets location and exposed shell requirements, the department shall:

      1. (A) hold a public hearing to determine if the site has been publicly fished within eight years of the lease application;
      2. (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 in which the proposed lease site is located;
      3. (C) publish the notification between ten and 20 days prior to the public hearing;
      4. (D) make available to the public information about the proposed lease site ten days prior to the date of the hearing; and
      5. (E) present the investigation report at the public hearing.
   2. (2) Persons objecting to the proposed lease must submit a sworn affidavit or testify under oath at the public hearing stating reasons for the objection.
   3. (3) The department shall review findings of the public hearing and submit recommendations to the Coastal Fisheries Division Director for approval.
   4. (4) The applicant will be notified within ten days after the hearing of either approval or denial of lease application.
   5. (5) The application approved by the department will be forwarded to the Coastal Coordination Council for final approval.

4. (d) Approved Lease Procedures for Applicant.

   1. (1) Applicant shall be responsible for having a final survey of the approved lease conducted by a registered surveyor who will furnish the department with survey notes and a plat of the lease showing:

      1. (A) the location of the lease in relation to state land tract boundaries; and
      2. (B) Loran coordinates for all lease markers.

   2. (2) The applicant shall mark the boundaries of the lease with buoys at the time of the final survey and maintain buoys until lease termination. Supplemental markers may be required along the lease boundaries if one corner marker is not clearly visible from another corner marker.

      1. (A) All marker buoys must be:

         1. (i) at least six inches in diameter;
         2. (ii) at least three feet out of the water at mean high tide;
         3. (iii) of a shape and color that is visible for at least 1/2 mile under normal weather conditions;
         4. (iv) marked with the lease number (Buoys common to two or more leases must be marked with all lease numbers);
         5. (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
         6. (vi) marked with all required U.S. Coast Guard markings.

      2. (B) Buoys must be anchored by:

         1. (i) A screw anchor with a minimum one-inch galvanized sucker rod and 12-inch head inserted ten feet into the bottom; or
         2. (ii) two anchors per buoy and each anchor having a minimum weight of 300 pounds.
      3. (C) If replacement of buoys is necessary, original Loran coordinates of the final survey must be used to relocate markers.
   3. (3) An authorized employee(s) of the department shall inspect and verify Loran coordinates.
   4. (4) The department shall return approved application for appropriate registration by applicant with the county clerk in the county of location as prescribed in Parks and Wildlife Code, §76.014.

   5. (5) Rental Fee.

      1. (A) No rental fee is owed on any lease when oysters are not sold or marketed from the lease for a period of five years after the date of the establishment of the lease.
      2. (B) When oysters are sold or marketed from the lease and thereafter, the holder of the certificate shall pay to the department $3.00 per acre of lease per year.
      3. (C) Rental fees are due annually by March 1.
      4. (D) Failure to pay any rental when due terminates the lease.
      5. (E) If oysters from the lease are not sold or marketed within five years from the date of establishment of the lease, the lease is void.

Source Note:The provisions of this §58.30 adopted to be effective October 3, 1996, 21 TexReg 9172.