Regulations Committee

Wednesday, 9:00 am, November 5, 2008

Texas Parks and Wildlife Department
Commission Hearing Room
4200 Smith School Road, Austin, TX 78744

Commissioner T. Dan Friedkin, Committee Chair
Scott Boruff, Committee Liaison

Approval of Previous Meeting Minutes

  1. Update on TPWD Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan
    • Hurricane Ike - Turtle Excluder Device Exemption
    • Crab, Shrimp and Finfish License Buyback
    • 54th Game Warden Academy Class
    • Select Interim Committee to Study Deer Breeding
    Staff: Carter Smith
  2. Rule Review - Request Permission to Review Rules
    • Chapter 57 - Fisheries
    • Chapter 65 - Wildlife
    Staff: Ann Bright
  3. Rule Review - Request Permission to Publish Proposed Changes
    • Chapter 53 - Finance
    • Chapter 59 - Parks
    • Chapter 69 - Resource Protection
    Staff: Ann Bright
  4. Rule Review - Recommended Adoption of Proposed Changes (Action Item No. 4)
    • Chapter 51 - Executive
    • Chapter 52 - Wildlife and Fisheries
    • Chapter 55 - Law Enforcement
    • Chapter 61 - Design and Construction
    Staff: Ann Bright
  5. Threatened and Endangered Nongame Species Regulations Amendments - Request Permission to Publish Proposed Changes
    Staff: Matt Wagner, Gary Garrett
  6. Raptor Proclamation - Consistency with Federal Rules - Request Permission to Publish Proposed Changes
    Staff: Matt Wagner
  7. 2009-2010 Statewide Hunting and Fishing Proclamation Preview
    Staff: Clayton Wolf, Clay Brewer, Robin Riechers, Ken Kurzawski
  8. Status of Alligator Gar Populations
    Staff: Ken Kurzawski
  9. Trapping, Transporting and Transplanting Game Animals and Game Birds Rules - Request Permission to Publish Proposed Changes
    Staff: Alan Cain

Committee Agenda Item No. 1
Presenter: Carter Smith

Regulations Committee
Update on TPWD Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan
November 5, 2008

I. Executive Summary: Executive Director Carter Smith will briefly update the Commission on the status of the agency's efforts to implement the Land and Water Resources Conservation and Recreation Plan (the Plan).

II. Discussion: In 2001, the 77th Texas Legislature directed that the Texas Parks and Wildlife Department (TPWD) develop a Land and Water Resources Conservation and Recreation Plan (Tex. Park & Wild. Code §11.104). In November 2002, the Texas Parks and Wildlife Commission (the Commission) adopted the first Plan. A revised Plan was adopted by the Commission in January 2005. The Plan is available on the TPWD web site. Executive Director Carter Smith will update the Regulations Committee on TPWD's recent progress in achieving the Plan's Goals and Objectives as they relate to the Regulations Committee.

The Plan consists of 8 Goals and a total of 56 Objectives. The Goals stated in the Plan are as follows:


Committee Agenda Item No. 2
Presenter: Ann Bright

Regulations Committee
Rule Review - Request Permission to Review Rules
November 5, 2008

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.

II. Discussion: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, the Texas Parks and Wildlife Department (TPWD) must now review the following chapters of Title 31 of the Texas Administrative Code: Chapter 57, Fisheries; Chapter 65, Wildlife.

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


Committee Agenda Item No. 3
Presenter: Ann Bright

Regulations Committee
Rule Review-Permission to Publish Proposed Changes
November 5, 2008

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. TPWD staff is requesting permission to publish proposed changes to TPWD rules that have been reviewed.

II. Discussion: In August 2008, the Commission authorized Texas Parks and Wildlife Department (TPWD) staff to review the follow chapters of Title 31 of the Texas Administrative Code: Chapter 53, Finance; Chapter 59 Parks; Chapter 69, Resource Protection.

After reviewing these rules, staff now requests permission to publish the following proposed changes in the Texas Register for public comment:

Chapter 53, Finance:
Chapter 59, Parks
Chapter 69, Resource Protection - No change

Committee Agenda Item No. 5
Presenters: Matt Wagner

Regulations Committee
Threatened and Endangered Nongame Species Regulations Amendments
Request Permission to Publish Proposed Changed
November 5, 2008

I. Executive Summary: This item requests permission to publish proposed rules in the Texas Register for public comment. The proposed amendments would:

II. Discussion: Under Parks and Wildlife Code, Chapter 68, a species of fish or wildlife is endangered if it is: 1) designated by the federal government as endangered, or 2) listed as "threatened with statewide extinction" by the executive director of the department. At the current time, no species have been designated by the executive director as threatened with statewide extinction. Therefore, the state list of endangered species and the federal list of endangered species are identical. Chapter 68 of the Code also requires the department to file an order of acceptance with the Texas Secretary of State each time the federal government modifies the list of endangered species to include or remove a species native to Texas, and requires the department to give at least 60 days' notice prior to filing the order.

Under Chapter 67 of the Code, the commission regulates nongame wildlife, which consists of fish and wildlife that are not classified as game animals, game birds, game fish, fur-bearing animals, alligators, native shrimp, oysters, or endangered species. Thus, the state's list of threatened species is promulgated by rule under the authority of Chapter 67 and defines "threatened" as "likely to become endangered in the future." Alterations to the list of state threatened species are effected under the Administrative Procedure Act, which requires a minimum of 30 days' notice prior to adoption by the commission.

Prior to 1996, the list of endangered species was contained in department regulations, along with the state list of threatened species. In 1996, the list of federally endangered species was removed from the rule, an administrative adjustment that did not affect protection of those species under state law. For the sake of simplicity and ease of reference, staff believes that the lists of endangered and threatened species should be in one place in department regulations, which would also allow the department to accommodate the differential notice requirement by synchronizing that process.

The Arctic peregrine falcon was declared recovered by the U.S. Fish and Wildlife Service (Service) in 1994. Federal rulemaking is currently underway that would allow states to authorize limited take of Arctic peregrines for falconry use, and staff proposes to remove the Arctic peregrine falcon from the list of threatened species in order to allow their take by selected licensed falconers.

Although not federally listed as threatened, the San Felipe gambusia is known to occur only in San Felipe Springs and San Felipe Creek in Val Verde County. Staff has determined that listing of the species is warranted because of its limited range.

Attachments - 2

  1. Exhibit A – List of federally endangered species indigenous to Texas
  2. Exhibit B – List of threatened species

Committee Agenda Item No. 5
Exhibit A

Federally Listed Endangered Species in Texas

Mammals
Birds
Reptiles
Amphibians
Fishes
Molluscs
Crustacea

Committee Agenda Item No. 5
Exhibit B

State Listed Threatened Species in Texas

Mammals
Birds
Reptiles
Amphibians
Fishes

Committee Agenda Item No. 6
Presenters: Matt Wagner

Regulations Committee
Raptor Proclamation - Consistency with Federal Rules
Request Permission to Publish Proposed Changes
November 5, 2008

I. Executive Summary: This item requests permission to publish proposed rules in the Texas Register for public comment. The proposed amendment would allow licensed falconers to possess additional raptors for abatement purposes.

II. Discussion: Under Parks and Wildlife Code, Chapter 49, the department may prescribe rules for the taking, capture, possession, propagation, transportation, export, import, and sale of raptors, time and area from which raptors may be taken or captured, and species that may be taken or captured; provide standards for possessing and housing raptors held under a permit; prescribe annual reporting requirements and procedures; prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit; and require and regulate the identification of raptors held by permit holders.

The practice of falconry is regulated at both the state and federal levels. The federal authority to regulate falconry is derived from the Migratory Bird Treaty Act, an international treaty to which the United States is a signatory. As with all migratory bird rules, the states may adopt rules that are more restrictive than the federal rules, but may not adopt rules that are less restrictive.

Under current department regulations, an applicant for a state falconry permit must possess a federal falconry permit prior to application for a state permit. The U.S. Fish and Wildlife Service (Service) has recently authorized falconers to engage in abatement activities (the use of raptors to harass or eliminate nuisance wildlife such as rabbits, pigeons, and grackles around airports, public buildings, etc., where other forms of control are impractical or unsafe). Under current rules, the department prescribes the number of birds that each class of falconer may possess. The federal abatement authorization allows falconers to possess raptors for abatement purposes in addition to those birds possessed for falconry purposes.

Staff recommends amending the current rule to allow the possession of additional raptors by licensed falconers for purposes authorized by a federal abatement permit.


Committee Agenda Item No. 7
Presenters: ClaytonWolf
Clay Brewer
Robin Riechers
Ken Kurzawski

Regulations Committee
2009-2010 Statewide Hunting and Fishing Proclamation Preview
November 5, 2008

I. Executive Summary: This item apprises the committee of potential changes to the Statewide Hunting and Fishing Proclamation for the 2009-2010 seasons.

II. Discussion: Responsibility for establishing seasons, bag limits, and means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61. Staff will brief the commission regarding the recommendations that staff is considering for possible presentation to the commission at the January commission meeting. The potential changes are based upon statutory requirements and Commission policy, including scientific investigation and required findings of fact where applicable. The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Attachments - 1

  1. Exhibit A – Potential Changes to the Statewide Hunting and Fishing Proclamation

Committee Agenda Item No. 7
Exhibit A

Potential Changes to the Statewide Hunting and Fishing Proclamation

Wildlife
White-tailed Deer
Mule Deer
Lesser Prairie Chicken
Inland Fisheries
Blue Catfish

— Lake Lewisville (Denton County), Lake Richland Chambers (Navarro and Freestone Counties), and Lake Waco (McLennan County).

Largemouth Bass

— Lake Ray Roberts (Cooke, Denton, and Grayson Counties)

Alligator Gar

— Statewide

Coastal Fisheries
Flounder
Species managed jointly with the National Marine Fisheries Service and the Gulf of Mexico Fishery Management Council
Saltwater Guide License

Committee Agenda Item No. 8
Presenters: Ken Kurzawski

Regulations Committee
Status of Alligator Gar Populations
November 5, 2008

I. Executive Summary: Staff will introduce Dr. Allyse Ferrara from Nicholls State University in Thibodaux, Louisiana who is a leading authority on gar populations. Dr Ferrara will present information on the status of alligator gar populations in the southeastern U.S. and the importance of Texas populations.

II. Discussion: Alligator gar populations have gained heightened attention during the last 20 years as anglers have discovered the enjoyment of pursuing this unique species. Anglers from around the world travel to Texas for the opportunity to fish for a trophy alligator gar. Alligator gar populations in many parts of the U.S. are thought to be declining. Because of this and the increased angling pressure on alligator gar populations, Inland Fisheries staff is investigating possible management options to ensure gar populations are maintained in Texas and will continue to produce large, trophy-sized individuals.


Committee Agenda Item No. 9
Presenters: Alan Cain

Regulations Committee
Trapping, Transporting, and Transplanting (TTT) Game Animals and Game Birds
Request Permission to Publish Proposed Changes
November 5, 2008

I. Executive Summary: Under Parks and Wildlife Code, Chapter 43, Subchapter E, the commission is authorized to establish permits and promulgate rules governing the trapping, transporting, and transplanting of game animals or game birds.

II. Discussion: This item requests permission to publish proposed rules in the Texas Register for public comment. The proposal would amend the department's rules governing the issuance of permits to trap, transport, and transplant game animals and game birds (TTT permits) to require that completed Trap Site and Release Site forms on the TTT application be submitted to appropriate TPWD biologist no later than January 1st. The applicant may delay submitting the completed TTT application until the trap and release sites have been approved and Chronic Wasting Disease (CWD) test results have been received. Last minute TTT requests are creating a conflict for previously scheduled MLDP inspections that need to occur. By establishing this deadline, the biologists will be better able to schedule inspections for both problems. This rule change would assist field biologists in planning and conducting on-site TTT habitat inspections while accomplishing other essential job duties including maintaining the integrity of the Managed Lands Deer Permits (MLDP) program by conducting on-site habitat evaluations of MLDP properties.


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