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RULE §69.204Permit Applications

(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.

(b) In addition to the requirements specified under subsection (a) of this section, the following will be required for the issuance of special permits.

  (1) Exposed reef may not be dredged without written permission of the department.

  (2) When the exposed reef area is less than 1/2 acre in size, the director may give permission in writing to the permittee to dredge the exposed reef provided the permittee agrees in writing to construct an artificial replacement reef at its sole expense at least one acre in area at a location designated by the department.

  (3) The artificial replacement reef required by paragraph (2) of this subsection will be at least one foot thick. The location designated by the director will be of sufficient water depth to allow permittee to deliver and spread the replacement shell. The director will designate the period of time when the shell will be furnished to the department. Permittee will not be required to pay for the shell used for construction of an artificial replacement reef. The quantity of shell referred to in this paragraph is in addition to the shell permittee is required to furnish for reef enhancement by §69.121 of this title (relating to Prices).

  (4) An exposed reef which has been covered with silt as a result of dredging activities or operations will continue to be considered an exposed reef. The director, and only the director, after having received ample justification from the shell management biologist in charge of dredging activities, that a reef, previously covered by silt and remaining covered, is beyond recovery and damages have been mitigated, may determine that the reef in question no longer qualifies to fit the definition of an exposed reef.

Source Note: The provisions of this §69.204 adopted to be effective February 4, 1997, 22 TexReg 959.

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