CHAPTER 86. MARL, SAND, GRAVEL, SHELL, AND MUDSHELL
PARKS AND WILDLIFE CODE
TITLE 5. WILDLIFE AND PLANT CONSERVATION
SUBTITLE F. MARL, SAND, GRAVEL, SHELL, AND MUDSHELL
CHAPTER 86. MARL, SAND, GRAVEL, SHELL, AND MUDSHELL
Sec. 86.001. MANAGEMENT AND PROTECTION. The commission shall
manage, control, and protect marl and sand of commercial value
and all gravel, shell, and mudshell located within the tidewater
limits of the state, and on islands within those limits, and
within the freshwater areas of the state not embraced by a survey
of private land, and on islands within those areas.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.002. PERMIT REQUIRED; PENALTY. (a) No person may
disturb or take marl, sand, gravel, shell, or mudshell under the
management and protection of the commission or operate in or
disturb any oyster bed or fishing water for any purpose other
than that necessary or incidental to navigation or dredging under
state or federal authority without first having acquired from the
commission a permit authorizing the activity.
(b) Each day's operation in violation of this section
constitutes a separate offense.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 105,
eff. Sept. 1, 1985.
Sec. 86.003. APPLICATION FOR PERMIT. (a) A person desiring a
permit may apply to the commission.
(b) The application must be in writing and must describe the
area in which authorization to operate is sought.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.004. GRANTING OF PERMIT. The commission may grant a
permit to an applicant who has complied with all requirements of
the commission if the commission finds that the disturbing,
taking, and carrying away of marl, sand, gravel, shell, or
mudshell will not:
(1) damage or injuriously affect any island, reef, bar, channel,
river, creek, or bayou used for navigation, or any oysters,
oyster beds, fish, or wildlife in or near the water used in the
operation;
(2) change or injuriously affect any current that would affect
navigation;
(3) significantly and injuriously change the hydrology of the
river;
(4) significantly increase downstream nonpoint source pollution;
and
(5) significantly accelerate erosion upstream or downstream from
the place where the taking occurs.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1995, 74th Leg., ch. 923, Sec. 1, eff.
Sept. 1, 1995.
Sec. 86.005. ECONOMIC CONSIDERATIONS. In determining whether or
not a permit should be granted, the commission shall consider the
injurious effect on oysters, oyster beds, and fish in or near the
water used in the operation as well as the needs of industry for
marl, sand, gravel, shell, and mudshell and its relative value to
the state for commercial use.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.006. PERMIT. (a) The permit shall identify the person
authorized to disturb, take, or carry away marl, sand, gravel,
shell, or mudshell and shall describe the nature of the material
that may be disturbed, taken, or carried away.
(b) The permit shall describe the area where the operation may
occur and shall state the purpose of the operation.
(c) The permit may contain other terms and conditions.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.007. PERMIT BY RULE. (a) The commission by rule may
establish conditions under which specified activities are
authorized without the requirement of individual permits under
this chapter. An activity conducted in accordance with those
conditions is considered to be under a permit.
(b) Rules adopted under this section shall require a person
proposing to rely on the authorization provided for by this
section to notify the department and, as appropriate, to report
to the department during and after the activity. The rules may
provide for a waiver of the requirement for advance notification
in an emergency. The commission may require a nonrefundable
processing fee to be submitted with the notification.
(c) The department, under rules adopted under this section, may
require an individual permit for any proposed activity.
(d) In addition to the requirements under Subchapter B, Chapter
2001, Government Code, the rules shall require public
notification of the proposed activity to provide the public with
an opportunity to comment on the appropriateness of requiring an
individual permit.
(e) The rules must establish best management practices that must
be followed to minimize potential adverse effects on resources
under the commission's jurisdiction.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1995, 74th Leg., ch. 923, Sec. 2, eff.
Sept. 1, 1995.
Sec. 86.008. DENIAL OF PERMIT. If the commission refuses to
grant a permit to an applicant, it shall make a full written
finding of facts explaining the reason for the refusal.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.009. TERMINATION AND REVOCATION. The failure or refusal
by the holder of a permit to comply with any term or condition of
the permit operates as an immediate termination and revocation of
all rights conferred or claimed under the permit.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.010. REMOVAL AND REPLANTING OF OYSTERS AND OYSTER BEDS.
(a) The commission may remove oysters and oyster beds and
replant them in other natural or artificial reefs if the
commission finds that the removal and replanting will benefit the
growth and propagation or the betterment of oysters and oyster
beds or fishing conditions.
(b) The removal and replanting of oysters and oyster beds shall
be at the expense of the person holding a permit or of an
applicant for a permit and not the state.
(c) Before authorizing the removal and replanting of oysters or
oyster beds the commission shall give notice to interested
parties and hold a hearing on the subject.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.011. DELEGATION OF AUTHORITY. (a) The commission may
delegate to the director authority to grant uncontested permits
under this section if:
(1) the application meets all statutory and administrative
criteria;
(2) no new issues affecting commission policy are presented;
(3) no objection is raised by department staff; and
(4) no timely written requests for hearing are filed or all
requests for hearing have been withdrawn.
(b) On request by the applicant or a concerned person with a
justiciable interest, the commission shall review an application.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1995, 74th Leg., ch. 923, Sec. 3, eff.
Sept. 1, 1995.
Sec. 86.012. SALES OF MATERIALS. (a) The commission, with the
approval of the governor, may sell marl, sand, gravel, shell, and
mudshell for not less than four cents a ton.
(b) The commission may require other terms and conditions for
the sale of marl, sand, gravel, shell, and mudshell.
(c) Payment for sales shall be made to the commission.
(d) Marl, sand, gravel, shell, and mudshell may be removed
without payment to the commission if removed from land or flats
patented to a navigation district by the state for any use on the
land or flats or on any adjoining land or flats for any purpose
for which the land or flats may be used under the authority of
the patent to the district, or if removed to provide access to a
boat ramp under Section 31.141(c) of this code.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1979, 66th Leg., p. 1069, ch. 499, Sec. 2,
eff. Aug. 27, 1979.
Sec. 86.013. USE ON ROADS. (a) A county, subdivision of a
county, city, or town that has a permit to take marl, sand,
gravel, shell, or mudshell is not required to purchase marl,
sand, gravel, shell, or mudshell taken and used for roads and
streets.
(b) A county, subdivision of a county, city, or town that
purchases marl, sand, gravel, shell, or mudshell for use on roads
and streets from a holder of a permit who has purchased the
material from the commission may receive a refund of the amount
paid by the permit holder by submitting a sworn itemized account
of an official of the county, subdivision of the county, city, or
town. All refunds under this subsection must be approved by the
commission and be paid by the comptroller by warrant.
(c) The Texas Transportation Commission may receive a refund of
the amount paid to the commission for the purchase of marl, sand,
gravel, shell, or mudshell used by the transportation commission
on public roads.
(d) The commission may make regulations for the payment of
refunds under this section.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1995, 74th Leg., ch. 165, Sec. 22(67), eff.
Sept. 1, 1995.
Sec. 86.014. USE FOR SEAWALLS, ETC. (a) The commission shall
grant to any county, city, or town that is authorized under
Subchapter A, Chapter 571, Local Government Code, to build and
maintain seawalls a permit for the taking of marl, sand, gravel,
shell, or mudshell to be used for the building, extending,
protecting, maintaining, or improving any seawall, breakwater,
levee, dike, floodway, or drainway.
(b) Permits under this section shall be issued under regulations
established by the commission.
(c) A county, city, or town taking marl, sand, gravel, shell, or
mudshell under this section is not required to purchase the marl,
sand, gravel, shell, or mudshell.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 8.364, eff.
Sept. 1, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 3.77(21), eff. April 1, 2009.
Sec. 86.015. SAND FROM CORPUS CHRISTI AND NUECES BAYS. Sand and
other deposits having no commercial value may be taken from
Corpus Christi and Nueces bays for filling and raising the grade
of the salt flats in the northern part of the city of Corpus
Christi and the lowlands lying north of the north boundary line
of the city of Corpus Christi, in Nueces County, and south of the
south boundary line of the city of Portland, in San Patricio
County, without making payments for it to the commission.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.0151. USE TO OPEN BROWN CEDAR CUT. (a) A nonprofit
corporation, fund, or foundation exempted from federal income
taxes under Section 503(c)(3), Internal Revenue Code of 1954, as
amended (26 U.S.C. Sec. 503(c)(3)), may take sand, gravel, marl,
shell, and mudshell from Brown Cedar Cut in Matagorda County for
the sole purpose of opening and reopening that passage between
the Gulf of Mexico and East Matagorda Bay.
(b) The fee required by Section 86.012 of this code does not
apply to sand, gravel, marl, shell, or mudshell taken under
Subsection (a) of this section, and that sand, gravel, marl,
shell, and mudshell may be deposited on private land.
Added by Acts 1979, 66th Leg., p. 911, ch. 419, Sec. 1, eff. Aug.
27, 1979.
Sec. 86.0152. USE TO OPEN CEDAR BAYOU. (a) A nonprofit
corporation, fund, or foundation exempted from federal income
taxes under Section 501(c)(3), Internal Revenue Code of 1954, as
amended (26 U.S.C. Sec. 501(c)(3)), or a political subdivision of
the state may take sand, gravel, marl, shell, and mudshell from
Cedar Bayou in Aransas County for the sole purpose of opening and
reopening that passage between the Gulf of Mexico and Mesquite
Bay.
(b) The fee required by Section 86.012 of this code does not
apply to sand, gravel, marl, shell, or mudshell taken under
Subsection (a) of this section, and that sand, gravel, marl,
shell, and mudshell may be deposited on private land.
Added by Acts 1985, 69th Leg., ch. 771, Sec. 1, eff. June 14,
1985.
Sec. 86.016. DEPOSIT OF FUNDS. The proceeds from the sale of
marl, sand, gravel, shell, and mudshell shall be deposited in the
special game, fish, and water safety account.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1993, 73rd Leg., ch. 679, Sec. 57, eff.
Sept. 1, 1993.
Sec. 86.017. USE OF FUNDS. Funds collected by the commission
from the sale of marl, sand, gravel, shell, and mudshell may be
used for the enforcement of the provisions of this chapter, the
payment of refunds, and the construction and maintenance of fish
hatcheries. No less than three-fourths of the proceeds from the
sale of marl, sand, gravel, shell, and mudshell, after the
payment of refunds, shall be used for the construction and
maintenance of fish hatcheries.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.018. TAKING FROM CERTAIN AREAS PROHIBITED. No person
may take marl, sand, gravel, shell, or other material from any
place between a seawall and the water's edge, from a beach or
shoreline within 300 feet of the mean low tide, or within
one-half mile of the end of any seawall, for any purpose other
than that necessary or incidental to navigation or dredging under
state or federal authority.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 106,
eff. Sept. 1, 1985.
Sec. 86.019. OIL AND GAS LESSEES. This chapter does not require
the holder of an oil and gas lease executed by the state to
obtain a permit from the commission to exercise any right granted
under the lease or other laws of this state.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 86.0191. EXEMPTION. (a) The commission shall, by rule,
exempt entities from the requirements of this chapter regarding
permits and fees required for disturbing or taking marl, sand,
gravel, shell, and mudshell for noncommercial purposes when such
disturbances or takings occur for maintenance projects or
construction of new utility lines carried out by public
utilities.
(b) Public utilities shall make every reasonable effort to use
best management practices established by the commission.
Added by Acts 1995, 74th Leg., ch. 61, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 596, Sec. 1, eff.
Sept. 1, 1999.
Sec. 86.020. RULES. The commission may adopt rules to govern:
(1) consideration of applications;
(2) setting and collection of application fees;
(3) assessment of transcript costs in contested cases;
(4) permit conditions;
(5) issuance of permits by rule;
(6) pricing of and terms for payment for substrate materials;
(7) assignability of permits;
(8) payment of refunds;
(9) permit renewal; and
(10) any other matter necessary for the administration of this
chapter.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 107, eff.
Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 923, Sec. 4,
eff. Sept. 1, 1995.
Sec. 86.021. EXEMPTIONS. (a) The commission by rule shall
exempt the projects listed in Subsection (b) from any permit
requirement or payment to the department for materials removed if
the commission finds that the state will not be deprived of
significant revenue and there will be no significant adverse
effects on navigation, the coastal sediment budget, riverine
hydrology, erosion, or fish and wildlife resources or their
habitat.
(b) Projects that may be exempted under Subsection (a) include:
(1) projects resulting in insignificant takings or disturbances
of marl, sand, gravel, shell, or mudshell;
(2) projects to restore or maintain the storage capacity of
existing public water supplies;
(3) maintenance projects carried out by public utilities for
noncommercial purposes; and
(4) public road projects contracted by the Texas Department of
Transportation.
(c) The commission may require the performance of scientific
studies as needed to determine the cumulative effect of permitted
operations in a watershed on natural resources using the criteria
described by Section 86.004 and may provide for permit holders to
participate in the performance of those studies. The commission
may reimburse a participating permit holder for costs incurred by
the permit holder in performing the study in an amount equal to
not more than one-fourth of all royalty fees paid by the permit
holder to the commission. Total reimbursements to all
participating permit holders may not exceed one-half the total
cost of the study.
Added by Acts 1995, 74th Leg., ch. 923, Sec. 5, eff. Sept. 1,
1995.
Sec. 86.022. PENALTY. A person who violates Section 86.002 or
86.018 commits an offense that is a Class C Parks and Wildlife
Code misdemeanor.
Added by Acts 1995, 74th Leg., ch. 923, Sec. 5, eff. Sept. 1,
1995.
Sec. 86.023. LIABILITY FOR VALUE OF MATERIAL TAKEN. A person
who takes marl, sand, gravel, shell, or mudshell under the
jurisdiction of the commission in violation of this chapter or a
rule adopted under this chapter is liable to the state for the
value of:
(1) the material taken; and
(2) any other natural resource under the department's
jurisdiction that is damaged or diminished in value.
Added by Acts 1995, 74th Leg., ch. 923, Sec. 5, eff. Sept. 1,
1995.
Sec. 86.024. CIVIL PENALTY. A person who violates this chapter
or a rule, permit, or order of the department issued or adopted
under this chapter is subject to a civil penalty of not less than
$100 or more than $10,000 for each act of violation and for each
day of violation, to be recovered as provided in this chapter.
Added by Acts 1995, 74th Leg., ch. 923, Sec. 5, eff. Sept. 1,
1995.
Sec. 86.025. ENFORCEMENT. (a) If a person has violated, is
violating, or is threatening to violate this chapter or a rule,
permit, or order of the department issued, adopted, or entered
into under this chapter, the director may bring suit to restrain
the person from continuing the violation or threat of violation,
to recover the civil penalty under Section 86.024, to recover the
value of material taken in violation of this chapter, or for any
appropriate combination of these remedies.
(b) On application for injunctive relief and a finding that a
person is violating or threatening to violate a provision of this
chapter or a rule, permit, or order of the department under this
chapter, a court shall grant the injunctive relief the facts may
warrant, without requirement for bond.
(c) At the request of the director, the attorney general or the
county attorney of the county in which the violation or threat of
violation occurred shall bring suit for injunctive relief, to
recover a civil penalty, to recover the value of material taken
in violation of this chapter, or for any appropriate combination
of these remedies. Amounts recovered under this section shall be
credited to the game, fish, and water safety fund. The actual
cost of investigation, reasonable attorney's fees, and reasonable
expert witness fees also may be recovered, and those recovered
amounts shall be credited to the same operating funds from which
expenditures occurred.
Added by Acts 1995, 74th Leg., ch. 923, Sec. 5, eff. Sept. 1,
1995.
Sec. 86.026. MORE THAN ONE DEFENDANT. If more than one
defendant is named in an action under this chapter, each
defendant against whom judgment is rendered is jointly and
severally liable for recovery provided by this chapter.
Added by Acts 1995, 74th Leg., ch. 923, Sec. 5, eff. Sept. 1,
1995.
Sec. 86.027. CIVIL SUIT AND CRIMINAL PROSECUTION PERMISSIBLE.
The pendency or determination of a civil action brought under
this chapter or a criminal prosecution for the same violation
does not bar the other action.
Added by Acts 1995, 74th Leg., ch. 923, Sec. 5, eff. Sept. 1,
1995.