1. (a) General Rules.

   1. (1) No lease will be issued for:

      1. (A) a natural oyster bed as prescribed in Parks and Wildlife Code, §76.001;
      2. (B) an area that has been fished as a public reef within eight years of the lease application as prescribed in Parks and Wildlife Code, §76.003;
      3. (C) a bay shore area within 100 yards of the shore as prescribed in Parks and Wildlife Code, §76.004;
      4. (D) an area subject to an exclusive riparian right as provided under Parks and Wildlife Code, §76.004 and §76.005;
      5. (E) an area already under certification as a private lease; or
      6. (F) an area within 1,000 feet of an established lease not owned or controlled by the applicant.
   2. (2) The term of the lease is 15 years as prescribed in Parks and Wildlife Code, §76.018.
   3. (3) In accordance with the Oyster Fishery Management Plan the Department may accept oyster lease applications.

2. (b) Application For Oyster Lease.

   1. (1) If applications for private oyster leases are being accepted by the department, they shall be accompanied by a nonrefundable application fee of $200.
   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 as prescribed in Parks and Wildlife Code, §76.006;
      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;
      6. (F) riparian rights;
      7. (G) presence of exposed shell; and
      8. (H) 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) latitude and longitude 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 latitude and longitude coordinates of the final survey must be used to relocate markers.
   3. (3) An authorized employee(s) of the department shall inspect and verify latitude and longitude coordinates.
   4. (4) The department shall return approved application for appropriate registration by applicant with the county clerk in the county of location.

   5. (5) Rental Fee.

      1. (A) The holder of a certificate of location shall pay to the department $6.00 per acre of location per year.
      2. (B) Rental fees are due annually by March 1 as prescribed in Parks and Wildlife Code, §76.017.
      3. (C) The holder of a certificate shall pay the department a late penalty fee equal to 10 percent of the amount due for any rental, transfer, sale, or renewal fee that is not paid when due as prescribed in Parks and Wildlife Code, §76.017.
      4. (D) Failure to pay any rental, transfer, sale, renewal, or late penalty fee within 90 days of the due date terminates the lease as prescribed in Parks and Wildlife Code, §76.017.

   6. (6) Lease Renewal.

      1. (A) As prescribed in Parks and Wildlife Code, §76.018, at the end of a lease term the department shall determine the need for continuation of the lease based on:

         1. (i) the need for depuration of oysters from non-approved areas; and
         2. (ii) other considerations as specified in §58.12 of this title (relating to Oyster Fishery Management Plan).
      2. (B) If the lease is to be renewed under the conditions of the department as prescribed in Parks and Wildlife Code, §76.018, the lease-holder of record shall be offered the first right of refusal for renewal as prescribed in Parks and Wildlife Code, §76.018.
      3. (C) A payment of $200 will be due upon renewal of the lease as prescribed in Parks and Wildlife Code, §76.018.

      4. (D) The holder of a renewed certificate of location shall be responsible for having the lease resurveyed by a registered surveyor who will provide the department with survey notes and a plat of the lease showing:

         1. (i) the location of the lease in relation to state land tract boundaries; and
         2. (ii) latitude and longitude coordinates for all lease markers.
      5. (E) The survey will be conducted and provided to the department within one year of the lease renewal;

   7. (7) Lease Auction Procedures

      1. (A) The department may auction a lease that is not renewed as prescribed by Parks and Wildlife Code, §76.018.

      2. (B) The department may determine a minimum acceptable bid based on:

         1. (i) bid offers from previous auctions;
         2. (ii) established open market prices; and
         3. (iii) other relevant factors.
      3. (C) The department may refuse all bids below the minimum acceptable bid.
      4. (D) The department must follow prescribed bid guidelines for state agencies.

   8. (8) Lease Transfers or Sale as prescribed in Parks and Wildlife Code, §76.019.

      1. (A) A transfer or sale of a lease does not change the terms of a lease.
      2. (B) A payment of $200 will be due upon transfer or sale of a lease.
      3. (C) A transfer fee will not be required when a lease is inherited.
      4. (D) A completed transfer form prescribed by the department will be required at time of transfer.

Source Note:The provisions of this §58.30 adopted to be effective October 3, 1996, 21 TexReg 9172; amended to be effective February 28, 2002, 27 TexReg 1330.