Regulations Committee

Wednesday, 9:00 a.m., May 26, 2004

Commission Hearing Room
4200 Smith School Road
Austin, TX 78744
Item
No.
Subject Public Hearing
Agenda Item No.
  Approve previous Committee Meeting minutes.  
1. Chairman's Charges (Oral Presentation) Committee Only
2. Proposed Civil Restitution Proclamation
Staff: Kris Bishop
Committee Only
3. Proposed Cormorant Control Permit
Staff: John Herron
Committee Only
4. Proposed Rule Review
Chapter 51 – Executive
Chapter 52 – Wildlife and Fisheries
Chapter 55 – Law Enforcement
Chapter 58 – Oysters and Shrimp
Chapter 61 – Design and Construction
Staff: Ann Bright
Committee Only
5.

Governing Body TCLEOSE Resolution
Staff: Randy Odom

5
6. Gear Tag Requirement for Minnow Traps
Staff: Jerry Cooke
7
7.

Public Hunting – 2004-2005

  • Establish Open Season
  • Designate State Parks

Staff: Vickie Fite

8
8. Raptor Proclamation
Staff: John Herron
9
9. Fur-bearing Animal Proclamation
Staff: Mike Berger
10
10. Other Business  

Committee Agenda Item No. 2
Presenter: Kris Bishop

Regulations Committee
Proposed Civil Restitution Proclamation
May 2004

I. Executive Summary: This item presents a proposed amendment that would increase the recovery values of wildlife taken in violation of the Parks and Wildlife Code or department regulations.

II. Discussion: Under Chapter 12 of the Parks and Wildlife Code, the Commission is required to adopt rules to establish guidelines for determining the value of fish, shellfish, reptiles, amphibians, birds, and animals injured or destroyed in violation of the Code or regulations adopted by the Commission. By statute, the recovery value of injured or destroyed wildlife is determined on a per animal basis. For each animal, a value is assigned for each of eight scoring criteria. Those scores are summed to create a total criteria score, which is then multiplied by a weighting factor to adjust for variance in public demand and/or perception of value. The adjusted criteria score has a corresponding recovery value, which the violator is then assessed. The value of trophy wildlife species is determined by a formula based on the animal’s Boone and Crockett score. The department created recovery values for trophy animals in 1996.

The current values for reptiles, amphibians, birds, and animals were established in 1985 and have not been adjusted since that time. Staff proposes to increase the values to be consistent with changes in economic factors since 1985. Research indicates that the Consumer Price Index has increased 1.677 points between 1986 and 2003. The proposed amendment would increase the criteria score values to reflect the change in the CPI, which is necessary to maintain recovery values that are consistent with the effect of the original values. In the case of trophy animals, the proposal reflects the change in the Consumer Price Index since 1996, which is 1.17 points.

Attachments - 1

  1. Exhibit A - Proposed Amendments

Commission Agenda Item No. 2
Exhibit A

Proposed 2005–2006 Migratory Game Bird Proclamation
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §69.22 and §69.30, concerning the department’s rules for recovering monetary damages from persons convicted of taking wildlife or fisheries resources in violation of the law. In 1985, the Texas Legislature amended the Parks and Wildlife Code to provide that a person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of the code or a proclamation or regulation adopted under the code is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured. Since that time, the department has actively sought full restitution for and/or restoration of fish, wildlife and habitat loss occurring as a result of unlawful activities. The current values by which restitution amounts for wildlife species are calculated have not been changed since 1985, with the exception of the rules governing the value of trophy wildlife species, which were adopted in 1996. During the intervening time, economic factors such as inflation and real dollar equivalence (relative to the values established in 1985 and 1996) have eroded the deterrent power of the current restitution values for wildlife species. In addition, the cost to the department of administering and enforcing the rules has increased for the same economic reasons. Therefore, the department intends to adjust the basic recovery values (upon which the calculations of civil recovery are based) for wildlife species. By statute, the recovery value of injured or destroyed wildlife is determined on a per animal basis. For each animal, a value is assigned for each of eight scoring criteria. Those scores are summed to create a total criteria score, which is then multiplied by a weighting factor to adjust for variance in public demand and/or perception of value. The adjusted criteria score has a corresponding recovery value, which the violator is then assessed. The value of trophy wildlife species is determined by a formula based on the animal’s Boone and Crockett score. The department created recovery values for trophy animals in 1996.

Research indicates that the Consumer Price Index (CPI) has increased 1.677 points between 1986 and 2003. The proposed amendment would increase the criteria score values to reflect the change in the CPI, which is necessary to maintain recovery values that are similar to the original values relative to current economic factors. In the case of trophy animals, the proposal reflects the change in the CPI since 1996 (the last time the values were changed), which is 1.17 points.

The amendment to §69.22, concerning Wildlife—Recovery Values, changes the various monetary values across the continuum of the scoring range used to determine the value of wildlife species. The proposed values were produced by multiplying the current values by 1.677, which is the amount that the Consumer Price Index has increased since 1985, the last year in which wildlife values were adjusted.

The amendment to §69.30, concerning Trophy Wildlife Species, changes the dollar-value coefficient used to calculate the final restitution value for trophy white-tailed or mule deer, pronghorn antelope, and desert bighorn sheep. The proposed dollar-value coefficient was derived by multiplying the current coefficient for each species by 1.17, which is the amount that the Consumer Price Index has increased since 1996, the last year in which wildlife trophy values were adjusted. The amendment also removes references to elk, because the Texas Legislature in 1997 designated elk as an exotic species and the department no longer possesses any regulatory authority with respect to that species. In addition, the department wishes to note that when the original adoption was published, the software of the time was unable to reproduce the superscript notation to indicate the squaring function was to be applied. The proposed changes rectify that situation.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rules are in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. The department anticipates that it will realize an additional $70,393 per year as a result of the increased restitution values for wildlife species, and $10,510 for trophy species. The estimates were derived by taking the average dollar value of the wildlife restitution recovered by the department per year over the last five years ($103,683) and multiplying that number by 1.677 (the factor by which the current values are being raised). The same technique was employed to arrive at an estimate for trophy species, multiplying the five-year average yearly recovery for trophy species ($8,983) by 1.17 (again, the factor by which the current values are being raised). There will be no fiscal implications to other units of state or local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

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

(A) The public benefit expected as a result of the proposed rules will be twofold: first, the increased recovery of costs related to loss of wildlife as a result of illegal take of those species, and second, the continued protection of those resources as a result of the department’s willingness and ability to impose significant financial punishments on violators as a deterrent to future illegal acts.

(B) There will be economic costs for persons required to comply with the rules as proposed; however, those costs are dependent on the type and number of wildlife that a person has been convicted of illegally taking, so the department is unable to provide a specific quantification.

(C) The department has determined that the rules will not affect local economies; accordingly, no local employment impact statement has been prepared.

(D) The department has determined that Government Code, § 2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rules.

(E) The department has determined that the rules will not have an adverse economic effect on small or micro-businesses.

(F) The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rules.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Kris Bishop, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4630; e-mail: kris.bishop@tpwd.state.tx.us.

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, §12.302, which requires the commission to adopt rules to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds, and animals.

The proposed new rule affects Parks and Wildlife Code, Chapter 12.

§69.22 Wildlife--Recovery Values.

(a) Each species of bird, reptile, amphibian, or animal shall be assigned a score of 0-3 for each of eight scoring criteria. The sum of the scores for the eight criteria (subsection (b) of this section) shall be multiplied by a weighting factor (subsection (c) of this section), and the resulting adjusted criteria score is compared to the monetary scale (subsection (d) of this section) to obtain a monetary value.

(b) For scoring criteria listed in paragraphs (1)-(8) of this subsection, a species which is not sought at all shall be scored as 0, while a highly sought species shall be scored 3.

(1) Recreation. The extent to which a species is actively sought by users with wildlife interests. Scoring considers both harvest and nonharvest use of a species.

(2) Aesthetic. The social value of wildlife species. These values represent wildlife species' beauty or unique natural history. Aesthetic values for these species exist whether or not a person ever would encounter one in its natural habitat.

(3) Educational. The educational value of a species arising from, for example, published materials and other audio-visual media about the species, displays in zoos, or the relative frequency with which the species is used to exemplify important curricula principles.

(4) Scarcity. The relative population of a species within the range of its habitat, from abundant to scarce.

(5) Environmental Tolerance. The ability of a species to tolerate normal changes in climate, topography, water regimes or other ecological factors which may limit range and population.

(6) Economics. The direct or indirect economic benefit attributable to the species as a result of recreational or legal transactions.

(7) Recruitment. Reproductive and survival potential of a species as it relates to the capability for replacement of its population following decrease or loss.

(8) Ecological role. A species' relationships with other life forms--and the species contribution to a healthful and stable balance of nature. Widely-consumed forage species score high, as do predators which control prey species populations. Forage species that are not widely consumed score low, as do predators which contribute little to regulation of prey populations.

(c) The individual scores for the criteria are summed to derive a total criteria score. The total criteria score is multiplied by a weighting factor which adjusts the summed criteria score for variance in public demand and/or perception of value for a species. The weighting factor relates the overall demand for a species to its existing supply and to future opportunity for public use. The weighting factors are:

(1) 1.0--Abundant. No additional public demand or perception of value exists beyond that reflected by the eight criteria in subsection (b) of this section;

(2) 1.1--Frequent. Minor disparity exists between resource availability and public interest and the public demand fluctuates periodically around an equilibrium point;

(3) 1.3--Rare. Substantial disparity exists between available supply and identified public interest in species that are subject to ongoing management programs;

(4) 1.5--Scarce. The species populations are never expected to meet identified demands or needs, or management programs for a limited species are not fully developed with respect to planned recreational opportunity and economic contribution.

(d) The total criteria score multiplied by the weighting factor in subsections (a)-(c) of this section, provides an adjusted criteria score and corresponding recovery value for each species.

Score Range Monetary Value
1 – 5.9 $5.00[$3.00]
6 – 8.9 $13.50[$8.00]
9 – 10.9 $26.00[$15.50]
11 – 12.9 $59.50[$35.50]
13 – 14.9 $105.50[$63.00]
15 – 16.9 $273.50[$163.00]
17 – 18.9 $881.50[$525.50]
19 – 20.9 $1,929.50[$1,150.50]
21 – 23.9 $4,780.50[$2,850.50]
24 – 36.9 $11,907.50[$7,100.50]

§69.30 Trophy Wildlife Species.

(a) The recovery value for each individual white-tailed or mule deer, [elk,] pronghorn antelope, and bighorn sheep shall be derived from the gross Boone and Crockett score of the horns or antlers plus the value derived for wildlife species in §69.22 of this title (relating to Wildlife—Recovery Values), using the following formulae:

(1) White-tailed and mule deer—The formula for white-tailed and mule deer shall be applied to all individuals whose gross score exceeds 100 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 100)2 [((gross score - 100)2] x $1.17[$1.00]) plus the value derived in §69.22 of this title.

[(2) Elk—The formula for elk shall be applied to all individuals whose gross score exceeds 200 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 200)2 x $.50) plus the value derived in §69.22 of this title.]

(3) Pronghorn antelope—The formula for pronghorn antelope shall be applied to all individuals whose gross score exceeds 40 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 40)2 [((gross score - 40)2] x $5.85[$5.00]) plus the value derived in §69.22 of this title.

(4) Bighorn sheep—The formula for bighorn sheep shall be applied to all individuals whose gross score exceeds 100 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 100)2 [((gross score - 100)2] x $11.70[$10]) plus the value derived in §69.22 of this title.

(b) The measurement procedure for obtaining the Boone and Crockett gross score shall follow: Nesbitt, W.H. and P.L. Wright. 1985. Measuring and Scoring North American Big Game Trophies. Boone and Crockett Club. 176 pp.

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

Issued in Austin, Texas, on


Committee Agenda Item No. 3
Presenter: John Herron

Regulations Committee
Proposed Cormorant control Permits
May 2004

I. Executive Summary: This item requests permission to publish a proposal for public comment in the Texas Register. The proposed new rules would establish a permit authorizing the control of cormorants and a fee for that permit.

II. Discussion: In November 2003, in response to concerns expressed by anglers and fisheries departments in the U.S., the U.S. Fish and Wildlife Service released a Final Rule and Record of Decision (located at Exhibit A) that will allow more flexibility in the control of double-crested cormorants (Phalacrocorax auritus) in areas where they are causing damage to aquaculture and public fisheries resources.

The rule allows state wildlife agencies to conduct cormorant control for the protection of public resources in 24 States (Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, New York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Vermont, West Virginia, and Wisconsin).

The department plans to implement a program that would allow the control of double-crested cormorants by authorizing persons to act as agents of the department on private lands and waters associated with those lands. This will be accomplished by the issuance of permits to authorize control activities on specific properties by named permittees. Staff feels that it is necessary for TPWD to specifically authorize individuals to control cormorants, consistent with the Service’s rule stipulating that control activities be conducted by agents authorized by the state fish and game agency. An application and reporting regime will provide TPWD the information it needs to gather the data from individuals involved in the program for purposes of furnishing required data to the Service.

Staff anticipates that there may be several thousand requests for permits, so there will be costs associated with issuing permits and compiling data, necessitating a fee to recover those costs. Staff wants to keep the fee small, sufficient to cover actual costs. A fee should also serve as a filter for applicants with only a casual interest, who is not likely to conduct any control activities or to submit reports. The staff seeks permission to publish the proposed fee in the Texas Register for public comment.

Attachments - 1

  1. Exhibit A - USFWS News Release
  2. Exhibit B - USFWS Cormorant Q&A
  3. Exhibit C - Proposed Rules

Commission Agenda Item No. 3
Exhibit A

U.S. Fish and Wildlife Service News Release

I. EXECUTIVE SUMMARY: This item requests permission to publish a proposal for public comment in the Texas Register. The proposed new rules would establish a permit authorizing the control of cormorants and a fee for that permit.

II. DISCUSSION: The U.S. Fish and Wildlife Service today released a Final Rule and Record of Decision that will allow more flexibility in the control of double-crested cormorants in areas where they are causing damage to aquaculture and public resources such as fisheries, vegetation, and other birds.

The rule expands the aquaculture depredation order, which has been in place in 13 States since 1998, to allow USDA Wildlife Services to conduct winter roost control. It also establishes a public resource depredation order to allow State wildlife agencies, Tribes, and U.S. Department of Agriculture’s Wildlife Services, to conduct cormorant control for the protection of public resources in 24 States (Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, New York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Vermont, West Virginia, and Wisconsin). Without these depredation orders, agencies and individuals would need a Federal permit to control cormorants.

Double-crested cormorants are colonial waterbirds whose numbers have increased substantially in the past 30 years. They can cause localized, but sometimes significant, negative impacts on resources such as commercial aquaculture, recreational fisheries, vegetation, and the habitat of other colonial nesting birds.

“Since cormorants cause localized impacts to natural and economic resources, we believe local management is the best approach to reduce conflicts,” said Service Director Steve Williams.

Agencies acting under the depredation order must have landowner permission, may not adversely affect other migratory bird species or threatened and endangered species, and must satisfy annual reporting and evaluation requirements. The Service will ensure the long-term conservation of cormorant populations through annual assessments of agency reports and regular population monitoring.

The rule also modifies the 1998 aquaculture depredation order to allow control of cormorants at winter roosts near fish farms and to allow fish hatcheries to protect their stock from cormorant predation. This added authority applies only to the original 13 States (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Minnesota, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas) and, in the case of roost control, may be conducted only by officials of U.S. Department of Agriculture’s Wildlife Services.

While cormorant populations were dramatically affected by such things as the pesticide DDT, today the population is at historic highs in many areas due in large part to the presence of ample food in their summer and winter ranges and reduced contaminant levels. The total estimated population of double-crested cormorants in North America is approximately two million birds.

Requests for copies of the final rule, Record of Decision or the FEIS should be mailed to the Division of Migratory Bird Management, 4401 N. Fairfax Drive, MBSP-4107, Arlington, Virginia 22203. The final rule and related documents can also be downloaded at ww.migratorybirds.fws.gov/issues/cormorant/cormorant. For further information, call the division at 703/358-1714.

The U.S. Fish and Wildlife Service is the principal Federal agency responsible for conserving, protecting and enhancing fish, wildlife and plants and their habitats for the continuing benefit of the American people. The Service manages the 95-million-acre National Wildlife Refuge System, which encompasses 542 national wildlife refuges, thousands of small wetlands and other special management areas. It also operates 69 national fish hatcheries, 64 fishery resources offices and 81 ecological services field stations. The agency enforces federal wildlife laws, administers the Endangered Species Act, manages migratory bird populations, restores nationally significant fisheries, conserves and restores wildlife habitat such as wetlands, and helps foreign governments with their conservation efforts. It also oversees the Federal Aid program, which distributes hundreds of millions of dollars in excise taxes on fishing and hunting equipment to state fish and wildlife agencies.


Commission Agenda Item No. 3
Exhibit B

Questions and Answers
Double-Crested Cormorant Management
Final Rule

Q. What is a double-crested cormorant?

A. The double-crested cormorant (Phalacrocorax auritus) is a long-lived, colonial-nesting waterbird native to North America. One of 38 species of cormorants worldwide, and one of six species in North America, it is usually found in flocks, and is sometimes confused with geese or loons when on the water.

Q. Where do they live?

A. Double-crested cormorants can be found in many locations throughout North America, including along the coast and inland on lakes, rivers, and other water bodies. The largest concentrations of double-crested cormorants are found on the Great Lakes and the lakes of the Canadian prairie provinces.

Q. How do they nest?

A. Cormorants breed in colonies ranging from several pairs to a few thousand. They build their nests of twigs and branches beginning in April, usually in trees or on the ground, on islands favored also by other colonial nesting birds, like great blue herons, great egrets, black-crowned night-herons, cattle egrets, gulls, and terns. Typically, at age three or four adults are ready to breed. Eggs are laid in mid-to-late April, and hatching occurs approximately 25 days later. A typical nest has two or three chicks. These chicks can fly at 5-6 weeks and will accompany adults to feed at 7 weeks. They are independent of the adult birds at 10 weeks.

Q. What about their population?

A. The double-crested cormorant is the most abundant of six species of cormorants occurring in North America. The Service estimates that the current continental population of double-crested cormorants is 2 million birds, with nearly 70 percent of this number in the Interior population centered around the Great Lakes and the prairie region of central Canada. While the total North American population increased rapidly from the 1970s into the 1990s, more recent estimates have indicated that the overall rate of growth in the U.S. and Canada slowed during the early 1990s. For the U.S. as a whole, according to Breeding Bird Survey trends, the breeding population of double-crested cormorants increased at a rate of approximately 7.9 percent per year from 1975-2000.

Q. Will the population continue to increase?

A. The total population will continue to increase in the short term although at a slower rate than in past years. In the long term, the population will likely stabilize due to factors such as disease, lack of available nesting habitat, or limitations on food resources. Because cormorants are not typically preyed upon by other species, their populations are regulated primarily by these factors rather than by predation.

Q. Are double-crested cormorants protected in the U.S.?

A. Yes, double-crested cormorants are one of approximately 800 species protected under the Migratory Bird Treaty Act of 1918, and subsequent amendments. This act was first passed to implement the terms of a treaty between the U.S. and Canada for the protection of migratory birds. Excessive market hunting of migratory birds prompted this treaty, which was later followed by treaties with Mexico, Japan, and Russia. Double-crested cormorants were first protected in 1972 through an amendment to the Mexican treaty.

Q. What do double-crested cormorants eat?

A. They eat mainly fish. Adults eat an average of one pound per day, usually comprised of small (less than 6 inch) bottom dwelling or schooling “forage” fish. They are opportunistic and generalist feeders, preying on many species of fish, but concentrating on those that are easiest to catch. Because the ease with which a fish can be caught depends on a number of factors (distribution, relative abundance, behavior, etc.), the composition of a cormorant’s diet can vary considerably from site to site and throughout the year.

Q. Do double-crested cormorants negatively impact fish populations in open waters?

A. Cormorants are one of many factors, such as water quality, aquatic habitat, predation, and angler catch, that can affect fish populations. Recently, U.S. Fish and Wildlife Service biologists conducted an extensive review of published studies, most of which indicated that fish species valued by sport and commercial anglers make up a small proportion of the cormorant’s diet. But there are exceptions to this rule and, in some cases, cormorants appear to be capable of taking numbers of sport fish significant enough to have a negative impact on catch rates. For example, recent research studies conducted in New York at Oneida Lake and eastern Lake Ontario have revealed that summer resident and migrating cormorants can diminish the number of fish of catchable size available to anglers. Future research in this area is needed to improve our understanding of the relationship between cormorants and their prey populations.

Q. Do double-crested cormorants significantly affect vegetation and other birds?

A. Cormorants do kill trees, shrubs, and other vegetation, due to accumulation of their guano, which is highly acidic, and removal of foliage for nesting material. If the species of vegetation being damaged is common, the ecological significance of such damage will be limited, although aesthetic concerns may exist. However, cormorant damage can be ecologically significant, as is the case on some Great Lakes islands where cormorants are causing severe damage to Carolinian vegetation, the rarest type of vegetation in the Great Lakes. In regard to impacts on other colonial waterbirds by cormorants, evidence of locally-significant impacts has been observed by many biologists, particularly in the Great Lakes States and provinces.

Q. Does the U.S. Fish and Wildlife Service control double-crested cormorants when they cause damage?

A. The Service’s primary role in double-crested cormorant management is to oversee, coordinate, and authorize control activities conducted by individuals and agencies. We authorize the take of cormorants either through the issuance of depredation permits or under the authority of depredation orders. Permits allow the permittee to take cormorants, their eggs, and nests in order to alleviate specific damages. Such permits are issued only after the individual or agency has applied for a permit, has demonstrated that damage has occurred, and has tried a variety of non-lethal management activities which have proven ineffective. Before issuing a permit, the Service determines that any authorized take has a reasonable chance of resolving the damage, and that the take will not have a significant negative impact on the migratory bird resource. The Service could undertake control of cormorants on lands that it owns, such as National Wildlife Refuges and National Fish Hatcheries, but it normally would not conduct cormorant management activities on other public or private lands.

Q. Does the U.S. Fish and Wildlife Service allow the control of double-crested cormorants at aquacultural facilities?

A. Yes. Since 1998, under a depredation order (50 CFR 21.47), the Service has permitted the lethal take, without a Federal permit, of double-crested cormorants at commercial freshwater aquaculture facilities and State-owned hatcheries in 12 southeastern States and Minnesota when non-lethal methods are ineffective at preventing depredation. In the final rule, the aquaculture depredation order was expanded to allow USDA Wildlife Services officials to conduct winter roost control to prevent cormorant depredation at fish farms. Federal and State hatchery managers will also be allowed to control depredating cormorants.

Q. If the U.S. Fish and Wildlife Service doesn’t control cormorants, then who does?

A. Depredation permits can be issued to private landowners or to public agencies (such as State fish and wildlife agencies). While these individuals and agencies can implement control themselves, according to the stipulations of their permit, these entities may request the assistance of experts from the USDA Wildlife Services program. USDA Wildlife Services is responsible for providing Federal leadership in managing problems caused by wildlife and provides assistance to agencies, organizations, and individuals in resolving wildlife damage problems on both public and private lands. They provide recommendations first for a variety of non-lethal management options, including harassment and habitat alteration. If these activities prove ineffective, USDA Wildlife Services may recommend lethal take of migratory birds.

Q. How are the State fish and wildlife agencies involved?

A. State agencies generally oversee on-the-ground management of wildlife in their states. Because of the Migratory Bird Treaty Act, cormorants are a trust responsibility of the U.S. Fish and Wildlife Service. Thus, in order for the States to take cormorants, they must be issued a depredation permit or have authority under a depredation order. In recent years, in the Great Lakes basin, the States of New York and Vermont have received depredation permits for cormorant control activities. The U.S. Fish and Wildlife Service issued these permits, upon the recommendations of USDA Wildlife Services, to reduce competition with other colonial waterbirds, including common terns and black-crowned night herons. In addition, the New York Department of Environmental Conservation has received authority to shoot cormorants at fish stocking sites in Lake Ontario. On Oneida Lake, New York is also working with USDA Wildlife Services to harass cormorants from the lake during the fall migration. Under the new regulations, State fish and wildlife agencies (in 24 States) will be able to conduct activities such as these without a depredation permit, under the terms and conditions of the public resource depredation order.

Q. What management alternatives were analyzed in the final EIS?

A. The Service analyzed the impacts of six separate alternatives in relation to their ability to reduce resource conflicts associated with double-crested cormorants, increase management flexibility, and conserve healthy populations of double-crested cormorants. Those alternatives included:

No Action Alternative - Under this alternative, existing wildlife management policies and practices would continue. These policies and practices include non-lethal management techniques such as harassment and habitat modification, the issuance of depredation permits, and continuation of the aquaculture depredation order. No additional regulatory methods or strategies would be authorized.

Non-lethal Management Alternative - Under this alternative, depredation permits to allow the lethal take of cormorants, their eggs, or their nests would not be authorized. To reduce impacts associated with cormorants, this option would allow only non-lethal management techniques such as harassment, habitat modification, exclusion devices at production facilities, and changes in fish stocking practices.

Increased Local Damage Control Alternative - This alternative would expand the current cormorant depredation policy to address a broader range of resource conflicts. The aquaculture depredation order would continue to allow double-crested cormorants to be killed at commercial freshwater aquaculture facilities and state-owned fish hatcheries in 13 states, and would be expanded to include winter roost control at aquacultural facilities in those states. Lethal control of double-crested cormorants would be authorized at State and Federal fish hatcheries. Population monitoring on breeding grounds would be conducted at regular intervals.

Public Resource Depredation Order Alternative (Preferred Alternative) - This alternative would establish a new public resource depredation order authorizing certain public agencies to implement a cormorant management program, while maintaining Federal oversight of cormorant populations via reporting and monitoring requirements. Control activities under authority of this new depredation order must be intended to alleviate damages to public resources such as fish, wildlife, and vegetation. The aquaculture depredation order would be expanded to allow winter roost control by USDA Wildlife Services professionals. Lethal control of double-crested cormorants would be authorized at State and Federal fish hatcheries. Depredation permits would continue to be used to address conflicts not covered under the depredation orders. Population monitoring on breeding grounds would be conducted at regular intervals.

Regional Population Reduction Alternative - This alternative would require development of regional cormorant population objectives designed to help reduce damages. Control would be carried out at nesting, roosting, wintering and other sites. A special statewide cormorant permit would be issued by the Service to each State choosing to engage in cormorant population reduction efforts. States could then designate other agents to carry out control. The aquaculture depredation order would be expanded to allow winter roost control. Population monitoring on breeding grounds would be conducted at regular intervals.

Regulated Hunting Alternative - Under this alternative, frameworks to develop seasons and bag limits for hunting double-crested cormorants would be established jointly by federal and state wildlife agencies. In addition, the depredation policy outlined in the Increased Local Damage Control Alternative, above, would address continuing conflicts (e.g., via issuance of depredation permits and the aquaculture depredation order). Population monitoring on breeding grounds would be conducted at regular intervals.

Q. Why did the Service select Alternative D as the preferred alternative?

A. Both scientific evidence and evidence based on observations made by resource professionals indicate that double-crested cormorants can and do have significant biological and economic impacts and that, because of increasing cormorant populations, the threat and/or magnitude of these impacts is greater today than it was 30 years ago. Since cormorant conflicts with public resources tend to be highly localized, it makes sense to give more cormorant management authority to the agencies that are best-suited to address local problems, while maintaining a degree of Federal oversight through reporting and evaluation requirements.

Q. What is the relationship between the Environmental Impact Statement and the rulemaking?

A. The final rule and the final EIS are separate but related documents. “Rulemaking” is the process by which Federal agencies promulgate regulations to implement decisions. An EIS helps the agency consider the environmental aspects of their decisions, as well as involving the public in the decision-making process. The preferred alternative outlined in the final EIS required us to amend the section of the Code of Federal Regulations governing the issuance of migratory bird permits. We did this through the rulemaking process by first issuing a proposed rule for public comment and then by publishing the final rule.

Q. Are there any differences between the proposed rule and the final rule?

A. Yes. The months during which winter roost control is allowed were extended to include April; Section 7 consultation “conservation measures” to protect threatened and endangered species were added; specific suspension and revocation procedures were added; the OMB information collection approval number (1018-0121) and expiration date were added; an advance notification requirement for take of >10% of a breeding colony was added; and monitoring and evaluation requirements were modified. These changes were made in response to public and agency comments or to satisfy procedural requirements.

Q. How does the final rule differ from current management policy for double-crested cormorants?

A. Currently, anyone who has problems with double-crested cormorants must apply for a Federal permit in order to lethally take birds, their eggs, or their nests. The only exception is for aquaculture and State hatchery producers in 13 States, who fall under the authority of the aquaculture depredation order and may, in certain circumstances, take double-crested cormorants without a Federal permit. The final rule changes policy so that State fish and wildlife agencies, Federally recognized tribes, and USDA Wildlife Services, in 24 States, can take cormorants without a Federal permit when they are causing damage to public resources such as fish (including hatchery fish), wildlife, plants, and their habitats. Additionally, USDA Wildlife Services officials will be able to conduct control at winter roost sites, in 13 States, to prevent cormorant depredation and Federal and State hatchery managers in those States will be allowed to control cormorants.

Q. How will the Service keep track of double-crested cormorant populations to ensure that they remain at sustainable levels?

A. Population monitoring provides critical information about population change and tells managers the present population status of species. Cormorant population monitoring is conducted by the Service, USDA Wildlife Services, the Canadian Wildlife Service, the States, and various universities. The U.S. Geological Survey and various non-governmental organizations participate in recording and analyzing the population data. The various types of surveys include the Great Lakes Colonial Waterbird Survey, Atlantic Coast Colonial Waterbird Survey, winter roost surveys, Christmas Bird Counts, and Breeding Bird Surveys. Additionally, in the final rule, agencies that conduct local population control are required to evaluate the effects of their actions on double-crested cormorant populations and annually report their findings to the Service.

Q. What are the reporting requirements associated with the final rule?

A. Each year, agencies acting under authority of the public resource depredation order must provide the appropriate Service Regional Migratory Bird Permit Office with a report detailing activities conducted under the authority of this order (as specified in the final rule). Agencies must, before they initiate control activities in a given year, provide a one-time written notice to the appropriate Service Regional Migratory Bird Permit Office. If any Agency plans control action(s) that would take more than 10% of a cormorant breeding colony it must first provide written notification with information about the proposed activity (at this level of control, the Regional Director may prevent the activity from taking place). For actions that are conducted with the intent of reducing or eliminating local double-crested cormorant populations, Agencies must: carefully plan activities to avoid disturbance of nontarget species, evaluate effects of their management activities on cormorants at the control site, evaluate effects of their management activities on the public resources being protected and on nontarget species; and include this information in their annual report. The Service will prepare annual reports summarizing regional and national double-crested cormorant management efforts.

Q. What happens next?

A. The new regulations will not be effective until 30 days following publication of the final rule and Record of Decision in the Federal Register. Thus, the effective date will be November 7, 2003. This waiting period allows the public and agencies to become familiar with the new regulations before implementing any actions.


Commission Agenda Item No. 3
Exhibit C

Cormorant Control Permits and Fees
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes new §65.901, concerning Cormorant Control Permits and an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits. The new section would create a permit authorizing named individuals to conduct cormorant control activities on a specific tract of land; require any person who takes a cormorant under a permit to submit an annual report to the department accounting for all cormorants taken by that person under the permit; require permittees to abide by applicable federal law; and establish an offense for failure to abide by permit conditions. The amendment would impose a fee of $12 for issuance of a permit for lethal control of cormorants.

The double-crested cormorant (Phalacrocorax auritus) is a long-lived, colonial-nesting waterbird native to North America, and is the most abundant of six species of cormorants occurring in North America. The current continental population of double-crested cormorants is estimated to be 2 million birds, and is increasing. The diet of the double-crested cormorants is mainly fish. Adults eat an average of one pound per day, usually comprised of small (less than 6 inch) bottom dwelling or schooling “forage” fish. They are opportunistic and generalist feeders, preying on many species of fish, but concentrating on those that are easiest to catch. In many areas, the double-crested cormorant has become a nuisance species, causing damage to aquaculture and public fisheries resources.

The double-crested cormorant is a protected species under the Migratory Bird Treaty Act of 1918, and federal approval is required to take, possess, or disturb them. The U.S. Fish and Wildlife Service (Service) in 1998 allowed U.S. Department of Agriculture Wildlife Services to conduct winter roost control on double-crested cormorants and later established a public resource depredation order to allow state wildlife agencies, Tribes, and U.S. Department of Agriculture’s Wildlife Services to conduct control activities for the protection of public resources in 13 states. The Service has now expanded the depredation order to include an additional 11 states, including Texas. Under the order, TPWD may authorize agents to conduct lethal control activities on private lands and private waters. The proposed new section and amendment are necessary to implement the federal depredation order for double-crested cormorants.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rules are in effect, there will be no net fiscal implications to state government as a result of enforcing or administering the rules, since the fee imposed by the rules will result in revenue equivalent to the administrative cost of issuing the permits, evaluating annual reports, and maintaining records. The department anticipates demand for the permits to be on the order of 2,000 per year. The department also estimates that the cost of processing and issuing the permits, collecting and analyzing annual reports, and summarizing the data from the annual reports for submission to the Service will be approximately $24,000 per year. Therefore, dividing the number of permits expected to be issued by the cost expected to be incurred yields the proposed fee per permit. There will be no fiscal implications to units of state or local government as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

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

(A) The public benefit expected as a result of the proposed rules will be the ability of aquaculture operators and other owners of private water to control the negative impacts of cormorants on their properties.

(B) There will be economic costs for persons required to comply with the rules as proposed. The rules will require each person who seeks to control cormorants to pay a fee of $12 for the processing and issuance of a permit. The fee also covers the department’s cost in maintaining records and reviewing annual reports from permittees. There are no other economic costs for persons required to comply with the rules as proposed.

(C) The department has determined that the rules will not affect local economies; accordingly, no local employment impact statement has been prepared.

(D) The department has determined that Government Code, § 2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rules.

(E) The department has determined that the rules will not have an adverse economic effect on small or micro-businesses.

(F) The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rules.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to John Herron, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4771; e-mail: john.herron@tpwd.state.tx.us.

5. Statutory Authority.

The new rule and amendment are proposed under the authority of Parks and Wildlife Code, §67.0041, which authorizes the issuance of permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species, and authorizes the commission to set a fee for a permit.

The proposed new rule and amendment affect Parks and Wildlife Code, Chapter 67.

§65.901. Cormorant Control Permit.

(a) The department may issue a permit authorizing the take of double-crested cormorants (Phalacrocorax auritus) on private lands and waters.

(b) Each permit shall be issued for a specific tract of land.

(c) A permit shall be issued only after the landowner has provided the names, addresses, and hunting license numbers of all designated agents who will be performing activities under the authority of a permit.

(d) Each person who takes a cormorant under a permit issued under the provisions of this section shall complete and submit an annual report on a form supplied by the department.

(e) Each person conducting control activities under the provisions of this section shall comply with all applicable provisions of the federal regulations located at 50 CFR, Part 21, §21.48.

(f) It is an offense to fail to abide by any condition of a permit issued under the provisions of this section.

§53.15. Miscellaneous Fisheries and Wildlife Licenses and Permits.

(a) Game bird and animal breeding licenses:

(1) game animal breeder's—$75;

(2) class 1 commercial game bird breeder's—$180; and

(3) class 2 commercial game bird breeder's—$25.

(b) Commercial nongame permits:

(1) resident nongame permit—$18;

(2) nonresident nongame permit—$60;

(3) resident nongame dealer permit—$60;

(4) nonresident nongame dealer permit—$240;

(5) nongame species sales permit—$200; and

(6) nongame species sales permit renewal—$200.

(c) Zoological collection permit application—$ 150;

(d) Scientific research permit application—$50;

(e) Educational display permit application—$50.

(f) Exotic Species (fish, shellfish and aquatic plants):

(1) exotic species permit fee for new, renewed or amended application requiring facility inspection—$250;

(2) exotic species permit fee for renewed or amended application not requiring facility inspection—$25;

(3) exotic species permit fee for renewal application received more than one year after renewal date— $250.

(4) triploid grass carp permit application fee —$15, plus $2 per triploid grass carp requested;

(5) exotic species interstate transport permit application fee – individual —$25;

(6) exotic species interstate transport permit application fee – annual—$100

(g) Miscellaneous fees:

(1) commercial plant permit—$50;

(2) aerial management permit—$200;

(3) broodfish permit application—$25;

(4) oyster lease application — $200;

(5) oyster lease rental — $6 per acre of location per year;

(6) oyster lease renewal /transfer/sale — $200; and

(7) fee for permit to control double-crested cormorants—$12.

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

Issued in Austin, Texas, on


Committee Agenda Item No. 4
Presenter: Ann Bright

Regulations Committee
Proposed Rule Review
May 2004

I. Executive Summary: Section 2001.039 of the Texas Government Code requires state agencies to review each rule under its jurisdiction at least once every four years.

A state agency’s review of a rule must include an assessment of whether the reasons for initially adopting the rule continue to exist. Under the requirements of this statute, this agency must now review the follow chapters of Title 31 of the Texas Administrative Code: Chapter 51, Executive; Chapter 52, Wildlife and Fisheries; Chapter 55, Law Enforcement; Chapter 58, Oysters and Shrimp; Chapter 61, Design and Construction.

With Commission approval, the agency will publish a Notice of Intent to Review for public comment in the Texas Register.


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