Presenter: John Herron

Commission Agenda Item No. 16
Action
Cormorant Control Permits
August 2004

I. Executive Summary: This item presents a proposal to create 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 (press release 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 public fisheries resources.

At the May 2004 meeting of the Regulations Committee, staff was authorized to publish the proposed regulations (located at Exhibits B and C) for public comment. The proposed regulations appeared in the July 23, 2004, issue of the Texas Register (29 TexReg 7035). Staff will provide a summary of public comment at the time of the hearing.

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

"The Texas Parks and Wildlife Commission adopts an amendment to 31 TAC §53.15 and new 31 TAC §65.901, concerning cormorant control permits and fees, with changes to the proposed text as published in the July 23, 2004, issue of the Texas Register (29 TexReg 7033)."

Attachment – 1

  1. Exhibit A – USFWS News Release
  2. Exhibit B – Proposed Permit Rule
  3. Exhibit C – Proposed Fee Rule

Commission Agenda Item No. 16
Exhibit A

U.S. Fish and Wildlife Service News Release

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 www.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. 16
Exhibit B

Cormorant Control Permit
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes new §65.901, concerning Cormorant Control Permit. The new section would create a permit to authorize landowners and their authorized agents to carry out cormorant control activities on behalf of Texas Parks and Wildlife Department; require any person who takes a cormorant under a permit to record the date and location of take and the number of cormorants killed; require the person to whom a permit is issued to submit an annual report to the department accounting for all cormorants taken under a permit; require all persons acting under a permit to abide by applicable federal law; and establish an offense for failure to abide by permit conditions. The permit conditions will specify that cormorants must be dispatched by firearm (non-toxic shot), cervical dislocation, or asphyxiation; that control actions take place only during daylight hours, and that landowner permission be obtained. The cost of the permit would be $12; the proposed rulemaking to establish the fee is published elsewhere in this issue.

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-breasted cormorant 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 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-breasted 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. The proposed new section is necessary to create a mechanism to protect public fisheries resources from depredation by double-breasted cormorants.

Since the fee for the proposed cormorant control permit is proposed in another rulemaking, the department includes in this preamble a discussion of the fee for the convenience of the reader.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rule is in effect, there will be no net fiscal implications to state government as a result of enforcing or administering the rule, since the application fee being proposed elsewhere in this issue 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 rule.

3. Public Benefit/Cost Note.

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

(A) The public benefit expected as a result of the proposed rule will be the control the negative impacts of cormorants on public fisheries resources.

(B) There will be economic costs for persons required to comply with the rule 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 rule as proposed.

(C) The department has determined that the rule 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 rule.

(E) The department has determined that the rule 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 rule.

4. Request for Public Comment.

Comments on the proposed rule 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 is 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 affects Parks and Wildlife Code, Chapter 67.

§65.901. Cormorant Control Permit. A permit issued under this section is valid only for the take of double-crested cormorants and does not authorize the wounding, disturbing, or taking of any other bird which otherwise is protected by any applicable provision of the Parks and Wildlife Code or a regulation of the department.

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

(2) Each permit is valid only for the tract or tracts of land for which it is issued.

(3) Each permit shall be issued to a named individual who is the owner of or authorized agent for the tract of land for which the permit is issued.

(4) Each person to whom a permit is issued shall complete and submit an annual report on a form supplied by the department by no later than August 1 of each year.

(5) Any person in possession of a valid hunting license may conduct control activities on double-crested cormorants, provided that person also possesses upon their person a copy of a permit issued for the tract of the land where the control activities take place. The copy of the permit must be signed in person by the person to whom the permit was issued.

(6) The department will not issue a permit to any person who has, within the three years immediately prior to an application for a permit, been convicted of or subject to deferred adjudication for a violation of the Texas Parks and Wildlife Code or a regulation of the department.

(7) 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, including restrictions on means and methods, lawful shooting hours, and disposal of carcasses.

(8) It is an offense to:

(A) take any bird other than a double-crested cormorant under a permit issued under this section;

(B) use a permit on any tract of land other than that for which it was issued; or

(C) fail to abide by any condition of a permit issued under the provisions of this section.

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


Commission Agenda Item No. 16
Exhibit C

Cormorant Control – Authorization Fee
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits. The amendment would impose an application fee of $12 for a cormorant control permit.

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. The proposed new section is necessary to create a mechanism to protect public fisheries resources from depredation by double-breasted cormorants.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rule is in effect, there will be no net fiscal implications to state government as a result of enforcing or administering the rule, since the fee imposed by the rule will result in revenue equivalent to the administrative cost of issuing 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 rule.

3. Public Benefit/Cost Note.

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

(A) The public benefit expected as a result of the proposed rule will be the control of negative impacts of cormorants on public fisheries resources.

(B) There will be economic costs for persons required to comply with the rule as proposed. The rule 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 rule as proposed.

(C) The department has determined that the rule 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 rule.

(E) The department has determined that the rule 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 rule.

4. Request for Public Comment.

Comments on the proposed repeal 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 is 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 amendment affects Parks and Wildlife Code, Chapter 67.

§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) double-crested cormorant control permit--$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


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