Presenter: John Herron

Commission Agenda Item No. 7
Action
Threatened and Endangered Species Regulations
August 2000

I. Discussion: Prior to 1997, Parks and Wildlife Code, Chapter 68 (Endangered Species) contained no provision to prevent the take of endangered species. The provisions of Chapters 67 and 68 originally were codified at Article 913a, Penal Code. Revisions enacted by the Sixty-fourth Texas Legislature in 1975 split Article 913a into the present Chapters 67 and 68; however, no effort was made to ensure that each was able to function fully independently of the other. A consequence of this was that Chapter 68 contained no authority to prevent the take of species of fish or wildlife listed as endangered. In response to this problem, the state list of endangered species in 1996 was modified to include only those species designated by the federal government as endangered. All species that appeared on the state list but not on the federal list were re-designated as state-threatened to afford them more protection against take, because Chapter 67 of the Code authorizes the Commission to establish limitations on the take, possession, propagation, transportation, importation, exportation, sale, and offering for sale of nongame fish and wildlife.

As a result of that action, confusion has arisen concerning persons possessing animals under Endangered Species Propagation permits. ESP permits are established by statute in Chapter 68 of the Code. When state-endangered species were transferred to the protection of Chapter 67, specimens possessed under Endangered Species Propagation permits were grandfathered. Persons who possessed specimens under ESP permits were allowed to continue in possession so long as they renewed their permits at $550 every three years, submitted annual reports, and had facility inspections performed by a licensed veterinarian. Permittees were also prohibited from propagating or acquiring additional specimens. Currently, five individuals are holding black bears under the grandfather clause; there are not other species reported in possession. The problem that has arisen is that a person could move to Texas with a black bear and would be under no regulatory obligation other than producing a valid permit from the state of origin.

Staff has concluded that the most effective solution would be simply to eliminate permits, inspections and reporting requirements, and instead allow any person to possess a species listed as threatened or endangered, provided that person can prove the specimen was legally acquired, and in the case of specimens entering Texas, lawfully possessed in the state of origin at the time of transport into this state. This should resolve current concern over the regulation of black bears. Persons possessing threatened or endangered species would be, however, required to permanently tag or mark any specimens, and would be prohibited from propagation except as specifically provided for by Chapter 68 of the Code. Staff has recommended the department continue to prohibit propagation and sale of threatened species, since this is consistent with the protection offered these species by law. There should be no direct impact on collectors and businesses, since TPW rules currently prohibit propagation and sale of all threatened species, except for captive-bred coatimundis and certain raptors.

Staff has also determined that because House Bill 2542, enacted by the 75th Texas Legislature, amended Chapter 68 to prohibit the take, capture, or killing of endangered species, the provisions of 31 TAC §§65.180 and 65.181 are superfluous and may be repealed without any diminution of protections for endangered species. Section 65.180 lists the species declared by the federal government to be endangered, and §65.181 simply reiterates the penalties provided by statute for violations.

The lists of state endangered and threatened species have also been modified to reflect the following changes:

Staff received authorization from the Regulations Committee at it's June 2000 meeting to publish proposed regulations in the Texas Register for public comment. The regulations appeared in the July 21, 2000 issue of the Texas Register (25 TexReg 6939). Staff will present a summary of public comment at the time of the meeting.

II. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts the repeal of 31 TAC §§65.171-65.174; new §§65.171-65.176; the repeal of §65.180 and §65.181, and the amendment to §69.8, concerning Threatened and Endangered Nongame Species, and Endangered, Threatened, and Protected Native Plants, with changes to the proposed text as published in the July 21, 2000 issue of the Texas Register (25 TexReg 6939)."

Attachments – 3

  1. Exhibit A – Proposed Regulations – Threatened and Endangered Species
  2. Exhibit B – Proposed Regulations – Engangered, Threatened & Protected Native Plants
  3. Exhibit C – Fiscal Note (available upon request)

Commission Agenda Item No. 7
Exhibit A

Threatened and Endangered Species
Proposed Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §§65.171-65.174, 65.180, and 65.181, and new §§65.171-65.176, concerning Threatened and Endangered Species. The repeals and new sections are necessary to reorganize existing provisions, eliminate regulatory inconsistency with respect to threatened and endangered species, to provide for documentation of lawfully held specimens, to remove unnecessary and redundant regulations, and to modify the lists of threatened and endangered species to reflect listing actions taken by the federal government and the executive director concerning the jaguar, the Arkansas River shiner, the Concho water snake, and the Cagle's map turtle . The repeals and new sections will function to provide uniform regulations governing the possession of threatened and endangered species, set forth identification standards, and establish penalties for violations.

2. Fiscal Note.

Robert Macdonald, Wildlife Division regulations coordinator, has determined that for each of the first five years that the proposed repeals and new sections are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the proposed rules.

3. Public Benefit - Cost Note.

Mr. Macdonald also has determined that for each of the first five years the proposed repeals and new sections are in effect:

(A) The public benefit anticipated as a result of enforcing the rules as proposed will be simpler regulations that are less burdensome to the public while executing the commission’s statutory obligations to manage the wildlife resources of this state.

(B) There will be no adverse economic effect on microbusinesses or small businesses. There are no economic costs to persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as this agency has determined that the rules as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

4. Request for Public Comments.

Comments on the proposed rules may be submitted to Peggy Horner, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 912-7047 or 1-800-792-1112.

5. Statutory Authority.

The repeals and new sections are proposed under Parks and Wildlife Code, Chapter 67, which give the commission the authority to establish any limitations on the take, possession, propagation, transportation, importation, exportation, sale, and offering for sale of nongame fish and wildlife necessary to manage those species, and Parks and Wildlife Code, Chapter 68, which provides the Commission with the authority to establish regulations governing the capture, trap, take, kill, possession, transportation, exportation, sale, and offering for sale of endangered fish and wildlife.

The repeals new sections affect Parks and Wildlife Code, Chapters 67, and 68.

§65.171. Closed Seasons.

§65.172. Threatened Species.

§65.173. Permit Exceptions.

§65.174. Exceptions.

§65.180. Endangered Species.

§65.181. Penalties.

This agency hereby certifies that the repeals are within the agency's authority to adopt.

Issued in Austin, Texas, on

THREATENED AND ENDANGERED SPECIES PROCLAMATION

§65.171. General Provisions.

(a) Except as otherwise provided in this subchapter or Parks and Wildlife Code, Chapters 67 or 68, no person may:

(1) take, possess, propagate, transport, export, sell or offer for sale, or ship any species of fish or wildlife listed by the department as endangered; or

(2) take, possess, propagate, transport, import, export, sell, or offer for sale any species of fish or wildlife listed in this subchapter as threatened.

(3) sell or propagate for sale any species of fish or wildlife listed by the depeartment as endangered, unless that person also possesses an endangered species propagation permit.

(b) Any person may possess, transport, import, export, sell, or offer for sale goods made from fish or wildlife listed in this subchapter as threatened, provided the person possesses:

(1) a copy of an out-of-state permit authorizing the possession of the specimens in the state of origin, valid at the time the specimen enters Texas;

(2) a bill of sale identifying the source of the specimen; or

(3) a notarized affidavit stating the source of the specimen and that the specimen(s) was legally obtained.

(c) Any person may possess or transport lawfully obtained live, mounted, or preserved specimens of threatened or endangered species, including specimens acquired in another state, provided the person also possesses one of the forms of documentation described in subsection (b)(1)-(3) of this subsection.

§65.172. Exceptions.

(a) Any person may transport threatened or endangered species to the nearest Department of Health or medical facility if the species poses an immediate threat to human safety or welfare.

(b) An enrolled member of a Indian tribe recognized by the Bureau of Indian Affairs may possess parts of birds listed as threatened or endangered, provided the person also possesses a federal permit authorizing such possession.

§65.173. Special Provisions. No person may release a threatened or endangered species except as specifically provided by the department in a letter of authorization issued prior to release.

§65.174. Permanent Identification. Every specimen possessed under the provisions of this subchapter or the provisions of Parks and Wildlife Code, Chapter 68, shall be identified with the owner’s name and telephone number by means of a permanent tag, tattoo, band, or passive inductive transponder (PIT) tag.

§65.175. Threatened Species. A threatened species is any species that the department has determined is likely to become endangered in the future. The following species are hereby designated as threatened species:

Mammals

Bat, Rafinesque’s Big-eared Corynorhinus rafinesquii

Bat, Southern Yellow Lasiurus ega

Bat, Spotted Euderma maculatum

Bear, Black Ursus americanus

Coati, White-nosed Nasua narica

Dolphin, Atlantic Spotted Stenella frontalis

Dolphin, Rough-toothed Steno bredanensis

Margay Felis wiedii (extirpated)

Mouse, Palo Duro Peromyscus truei comanche

Rat, Coues’ Rice Oryzomys couesi

Rat, Texas Kangaroo Dipodomys elator

Whale, Dwarf Sperm Kogia simus

Whale, False Killer Pseudorca crassidens

Whale, Gervais’ Beaked Mesoplodon europaeus

Whale, Goose-beaked Ziphius cavirostris

Whale, Killer Orcinus orca

Whale, Short-finned Pilot Globicephala macrorhynchus

Whale, Pygmy Killer Feresa attenuata

Whale, Pygmy Sperm Kogia breviceps

Birds

Becard, Rose-throated Pachyramphus aglaiae

Eagle, Bald Haliaeetus leucocephalus

Egret, Reddish Egretta rufescens

Falcon, Arctic Peregrine Falco peregrinus tundrius

Hawk, Common Black- Buteogallus anthracinus

Hawk, Gray Buteo nitidus

Hawk, White-tailed Buteo albicaudatus

Hawk, Zone-tailed Buteo albonotatus

Ibis, White-faced Plegadis chihi

Kite, American Swallow-tailed Elanoides forficatus

Owl, Ferruginous Pygmy- Glaucidium brasilianum

Owl, Mexican Spotted Strix occidentalis lucida

Parula, Tropical Parula pitiayumi

Plover, Piping Charadrius melodus

Sparrow, Bachman’s Aimophila aestivalis

Sparrow, Botteri’s Aimophila botterii

Stork, Wood Mycteria americana

Tern, Sooty Sterna fuscata

Tyrannulet, Northern Beardless- Camptostoma imberbe

Reptiles

Gecko, Reticulated Coleonyx reticulatus

Lizard, Reticulate Collared Crotaphytus reticulatus

Lizard, Texas Horned Phrynosoma cornutum

Lizard, Mountain Short-horned Phrynosoma douglasii

Rattlesnake, Timber Crotalus horridus

Snake, Speckled Racer Drymobius margaritiferus

Snake, Northern Cat-eyed Leptodeira septentrionalis

Snake, Scarlet Cemophora coccinea

Snake, Black-striped Coniophanes imperialis

Snake, Indigo Drymarchon corais

Snake, Brazos Water Nerodia harteri

Snake, Smooth Green Liochlorophis vernalis

Snake, Louisiana Pine Pituophis melanoleucus ruthveni

Snake, Big Bend Blackhead Tantilla rubra

Snake, Texas Lyre Trimorphodon biscutatus

Turtle, Cagle's Map Graptemys caglei

Turtle, Chihuahuan Mud Kinosternon hirtipes

Turtle, Alligator Snapping Macroclemys temminckii

Turtle, Green Sea Chelonia mydas

Turtle, Loggerhead Sea Caretta caretta

Tortoise, Texas Gopherus berlandieri

Amphibians

Frog, Sheep Hypopachus variolosus

Frog, White-lipped Leptodactylus labialis

Newt, Black-spotted Notophthalmus meridionalis

Salamander, Blanco Blind Eurycea robusta

Salamander, Cascade Caverns Eurycea latitans

Salamander, San Marcos Eurycea nana

Salamander, Comal Blind Eurycea tridentifera

Siren, South Texas (Large Form) Siren sp.1

Toad, Mexican Burrowing Rhinophrynus dorsalis

Treefrog, Mexican Smilisca baudinii

Fishes

Blindcat, Toothless Trogloglanis pattersoni

Blindcat, Widemouth Satan eurystomus

Chub, Rio Grande Gila pandora

Chubsucker, Creek Erimyzon oblongus

Darter, Blackside Percina maculata

Darter, Rio Grande Etheostoma grahami

Gambusia, Blotched Gambusia senilis (extirpated)

Goby, Blackfin Gobionellus atripinnis

Goby, River Awaous tajasica

Minnow, Devils River Dionda diaboli

Paddlefish Polyodon spathula

Pipefish, Opossum Microphis brachyurus

Pupfish, Concho Cyprinodon eximius

Pupfish, Pecos Cyprinodon pecosensis

Shiner, Arkansas River Notropis girardi

Shiner, Bluntnose Notropis simus (extirpated)

Shiner, Bluehead Notropis hubbsi

Shiner, Chihuahua Notropis chihuahua

Shiner, Proserpine Cyprinella proserpina

Stoneroller, Mexican Campostoma ornatum

Sturgeon, Shovelnose Scaphirhynchus platorynchus

Sucker, Blue Cycleptus elongatus

§65.176. Violations and Penalties. Penalties for violations of this subchapter involving:

(a) the species listed in §65.172 of this title (relating to Threatened Species) are prescribed by Parks and Wildlife Code, Chapter 67; and

(b) species listed in accordance with Parks and Wildlife Code, Chapter 68, are prescribed by Parks and Wildlife Code, Chapter 68.


Commission Agenda Item No. 7
Exhibit B

Endangered, Threatened, and Protected Native Plants
Proposed Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes the amendment of §69.8, concerning Threatened and Endangered Plants. The amendment: adds the Zapata bladderpod to the list of endangered plants and deletes the Lloyd's hedgehog cactus from the same list, and adds the Pecos sunflower to the list of threatened plants while deleting the McKittrick pennyroyal from that list. The amendment is necessary to comply with the provisions of Parks and Wildlife Code, Chapter 88, which requires the department adopt regulations to administer the provisions of that chapter, including publication and distribution of lists of threatened, endangered, or protected plants. The amendment would function by affording statutory protection to the Zapata bladderpod and by removing the Lloyd's hedgehog cactus from the list of endangered plants.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the amendment as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the amendment.

3. Public Benefit - Cost Note.

Mr. Macdonald also has determined that for each of the first five years the amendment as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing the rule as proposed will be the protection of the state's botanical resources.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Employment Commission as required by Government Code, §2001.022, as this agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed amendment.

4. Request for Public Comments.

Comments on the proposed rule may be submitted to Peggy Horner, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 912-7047 or 1-800-792-1112.

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, Chapter 88, which requires the commission to adopt regulations to administer the provisions of Chapter 88.

The amendment affects Parks and Wildlife Code, Chapter 88.

§69.8. Endangered and threatened plants.

(a) The following plants are endangered:

Cacti

Tobusch fishhook cactus Ancistrocactus tobuschii

star cactus Astrophytum asterias

Nellie cory cactus Coryphantha minima

Sneed pincushion cactus Coryphantha sneedii var. sneedii

[Lloyd’s hedgehog cactus Echinocereus lloydii]

black lace cactus Echinocereus reichenbachii var. albertii

Davis’ green pitaya Echinocereus viridiflorus var. davisii

Trees, Shrubs, and Subshrubs

Johnston’s frankenia Frankenia johnstonii

Walker’s manioc Manihot walkerae

Texas snowbells Styrax texanus

Wildflowers

large-fruited sand verbena Abronia macrocarpa

South Texas ambrosia Ambrosia cheiranthifolia

Texas ayenia Ayenia limitaris

Texas poppy mallow Callirhoe scabriuscula

Terlingua Creek cat’s-eye Cryptantha crassipes

slender rush-pea Hoffmannseggia tenella

Texas prairie dawn Hymenoxys texana

white bladderpod Lesquerella pallida

Texas trailing phlox Phlox nivalis ssp. texensis

ashy dogweed Thymophylla tephroleuca

Zapata Bladderpod Lesquerella thamnophila

Orchids

Navasota ladies’-tresses Spiranthes parksii

Grasses and Grass-like Plants

Little Aguja pondweed Potamogeton clystocarpus

Texas wild-rice Zizania texana

(b) The following plants are threatened:

Cacti

Bunched cory cactus Coryphantha ramillosa

Chisos Mountains hedgehog cactus Echinocereus chisoensis var. chisoensis

Lloyd’s mariposa cactus Neolloydia mariposensis

Trees, Shrubs, and Subshrubs

Hinckley’s oak Quercus hinckleyi

Wildflowers

[McKittrick pennyroyal Hedeoma apiculatum]

Pecos Sunflower Helianthus paradoxus

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on


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