Regulations Committee

Wednesday, 9:00 a.m.
August 25, 2010

International Center
203 S. St. Mary’s Street
LaOrillo Ballroom, Suite 303 (3rd Floor)
San Antonio, Texas

Commissioner T. Dan Friedkin, Committee Chair
Ross Melinchuk, Committee Liaison

Approval of Previous Meeting Minutes

1. Update on TPWD Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan

Staff:  Carter Smith

2. Revisions to Exotic Aquatic Species Rules – Request Permission to Publish Proposed Changes in the Texas Register

Staff:  Ken Kurzawski

3. Consistency of Federal Rules Concerning Bycatch Reduction Devices (BRDs) and Individual Fishing Quotas (IFQs) (Action Item No. 10)

Staff:  Robin Riechers

4. Status of Quail in Texas

Staff:  Robert Perez

5. Migratory Game Bird Proclamation Rules

Staff:  Dave Morrison

6. Update on the Joint Enforcement Agreement between TPWD and National Oceanic Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS)

Staff:  Robert Goodrich


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
August 25, 2010

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 2002, the Texas Parks and Wildlife Commission (the Commission) adopted the first Plan.  A revised Plan was adopted by the Commission in January 2005.  In November 2009, the Commission approved a new Plan effective January 1, 2010.  The 2010 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, objectives and deliverables as they relate to the Regulations Committee.

The Plan consists of the following four goals:

  1. Practice, Encourage and Enable Science-based Stewardship of Natural and Cultural Resources
  2. Increase Access To and Participation In the Outdoors
  3.  Educate, Inform and Engage Texas Citizens in Support of Conservation and Recreation
  4.  Employ Efficient, Sustainable and Sound Business Practices

Committee Agenda Item No. 2
Presenter:  Ken Kurzawski

Regulations Committee
Exotic Aquatic Plant Regulations
Proposed Rules
August 25, 2010

I.       Executive Summary:  This item seeks permission to publish proposed regulations for exotic aquatic plants in the Texas Register for public comment.

II.     Discussion:  In the last legislative session, the Texas Legislature enacted House Bill 3391, commonly referred to as the Sunset Bill, which requires TPWD to publish a list of exotic aquatic plants that are approved for importation or possession in Texas without a permit.  This differs from the current regulations that list exotic aquatic plants that are prohibited or otherwise restricted.  HB 3391 requires the list of approved exotic aquatic plants and revisions to existing rules governing the importation, possession, and sale of exotic aquatic plants is effective no later than December 31, 2010.  New rules are proposed to implement the new regulatory scheme, which includes a proposed list of exotic aquatic plants approved for importation, possession, and sale in Texas.

            Attachments – 2

  1. Exhibit A – Proposed Changes to Exotic Aquatic Plant Rules
  2. Exhibit B – Proposed List of Approved Exotic Aquatic Plants

Committee Agenda Item No. 2
Exhibit A

Chapter 70. Plants.
Subchapter A—Exotic Aquatic Plants

         §70.1. Applicability.

         §70.2. Definitions.

         §70.3. General Provisions.

         §70.4. Permit Required.

         §70.5. Types of Exotic Aquatic Plant Permits.

         §70.6. Permit Application.

         §70.7 Disclosure of Information.

         §70.8 Permit Issuance or Renewal.

         §70.9. Permit Privileges and Restrictions.

         §70.10. Denial of Issuance or Renewal.

         §70.11. Review of Agency Decision.

         §70.12. Discontinuation or Amendment of Permitted Activities.

         §70.13. Escape, Overflow, Toxicity or Emergency.

         §70.14. Facility Requirements.

         §70.15. Labeling, Packaging and Transport.

         §70.16. Notification, Reporting, and Recordkeeping.

         §70.17. Approved Exotic Aquatic Plants.

         §70.18. Amendment of List of Approved Species.

         §70.19. Prohibited Acts.

         §70.20. Temporary Transition Provisions

         §70.21. Violations and Penalties.


Chapter 70. Plants.
Subchapter A—Exotic Aquatic Plants

         §70.1. Applicability.

                 (a)  Unless otherwise expressly provided herein, to the extent that any provision of this subchapter conflicts with the provisions of Chapter 57, Subchapter A, of this title (relating to Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants) the provisions of this subchapter shall prevail.

                 (b) Unless otherwise expressly provided herein, this subchapter is not applicable to the possession of water spinach.  The possession of water spinach shall be governed by the provisions of §57.136 of this title (relating to Special Provisions—Water Spinach).

         §70.2. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) Approved list – A list published by the department and adopted by rule of exotic aquatic plant species that a person may import into or possess in this state without a valid exotic aquatic plant permit.  The approved list is contained in §70.17 of this title (relating to Approved Exotic Aquatic Plants).

                 (2) Aquatic plant – Any member of the Kingdom Plantae, any member of the Kingdom Monera within the Phylum Cyanophycota, or any photosynthetic member of the Kingdom Protista, as documented using the most recent posting of the Integrated Taxonomic Information System, that is typically found in either aquatic or riparian habitats. The term “aquatic plant” includes any part of an aquatic plant in any stage of the plant’s life history, including propagules.

                 (3) Commission—The Texas Parks and Wildlife Commission.

                 (4) Department—The Texas Parks and Wildlife Department.

                 (5) Discharge—With regard to an exotic aquatic plant or its propagules, to deposit, conduct, drain, emit, throw, run, allow to seep, escape, or spread or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions by any means, including, but not limited to such means as by air currents, wildlife vectors, or as a result of flooding or overflow.

                 (6) Exotic aquatic plant –A nonindigenous aquatic plant that is not normally found in aquatic or riparian areas of this state. For purposes of this subchapter, a genetically modified aquatic plant is considered an exotic aquatic plant. For purposes of this subchapter, a hybrid species in which one or more parent species is an exotic aquatic plant is considered an exotic aquatic plant.

                 (7) Facility infrastructure—All areas, structures or equipment that are used to grow, hold, store, process, package, or contain exotic aquatic plants, growth media, or nutrient or waste streams including, but not limited to buildings, ponds, raceways, bioreactors, vats, greenhouses, processing areas, netting, screening or other containment measures or equipment, water supply, drainage, outfalls, and stormwater management structures;

                 (8) Genetically modified aquatic plant–An aquatic plant whose genetic material has been altered by the removal, addition or modification of a gene.

                 (9) Ineligible species list–A list of species maintained by the department of exotic aquatic plants that are not eligible for inclusion on the approved list.  The ineligible species list includes species that have been considered for addition to the approved list and rejected.

                 (10) Macroalgae –Large, multicellular aquatic photosynthetic plants that can been seen without the aid of a microscope.

                 (11) Microalgae – Small, microscopic unicellular aquatic photosynthetic plants (phytoplankton) that require the aid of a microscope to be seen.

                 (12) Native—A species of which the first documented occurrence in water in the state of Texas or the Western Gulf of Mexico was not the result of known intentional or unintentional introduction by man.

                 (13) Naturalized –– A non-native species that does not require human assistance to reproduce and maintain itself over time in an area where it is not native. For the purposes of this subchapter, this term is limited to species that have become integrated into a stable and diverse environmental community, and does not include plants that invade, dominate or cause the eradication of native species.

                 (14) Nonindigenous—Not native or naturalized to water in the state or the Western Gulf of Mexico.

                 (15) Nonviable organism—An organism or part thereof that has been rendered incapable of spreading, propagating, or being propagated.

                 (16) Permit—An exotic aquatic plant permit issued pursuant to the provisions of this subchapter, unless otherwise provided.

                 (17) Permittee—A person or entity to whom an exotic aquatic plant permit has been issued.

                 (18) Possess – With regard to an exotic aquatic plant species, includes possess, hold, display, propagate, sell, offer for sale, purchase, transport, import, export or place into water in the state.

                 (19) Propagate — To multiply by sexual or asexual reproduction.

                 (20) Propagule –-Any biological structure capable of propagating a plant.

                 (21) Staff – Persons employed by the department.

                 (22) Toxic – Containing, or being poisonous material capable of causing death or debilitation to humans, animals, or plants.

                 (23) Water in the state— Water in the state as defined in Chapter 26, §26.001(5) of the Texas Water Code.

                 (24) Western Gulf of Mexico –That area of the Gulf of Mexico west of a line beginning at the Mississippi River Southwest Pass Entrance (N29º54’00.3”, W89º25’54.3”) then proceeding southward to the Yucatan Peninsula (approximately 16.2 miles east of Progresso, Mexico), and westward, including the Bay of Campeche, to the mainland of Mexico, Texas, and Louisiana including the areas of salt and brackish waters of bays, lagoons and tidal bayous.

         §70.3. General Provisions.

                 (a) Nothing in this subchapter shall be construed to relieve any person from compliance with the requirements of any applicable federal, state, or local law.

                 (b) Scientific reclassification or change in nomenclature of taxa at any level in taxonomic hierarchy, or the use of synonyms for an exotic aquatic plant species will not, in and of itself, result in a change in status of an exotic aquatic plant species.

                 (c) Upon request of a department employee acting within the scope of official duties, a permittee shall provide samples of any plant to the department for identification and analysis.

                 (d) Consideration of an exotic aquatic plant species for the approved list will be at a level no higher than the taxonomic rank of species on the hierarchy of biological classification.

                 (e) The department will not issue a permit regarding an exotic aquatic plant at a level higher than the taxonomic rank of species on the hierarchy of biological classification.

         §70.4. Permit Required.

                 (a) No person may possess any species of exotic aquatic plant in this state that is not listed in §70.17 of this title (relating to Approved List of Exotic Aquatic Plants) unless the person possesses a valid exotic aquatic plant permit issued by the department authorizing such possession.

                 (b) No person may possess any species or strain of an exotic microalgae in this state without a valid exotic aquatic plant permit issued by the department authorizing such possession.

                 (c) No permit is required to possess a species that is listed in §70.17 of this title (relating to Approved List of Exotic Aquatic Plants).

                 (d) No permit is required to possess a nonviable organism.

                 (e) A permit is not transferable to another facility or person.

         §70.5.  Types of Exotic Aquatic Plant Permits. The department may issue an exotic aquatic plant permit for any of the purposes described in this section.

                         (1) Scientific research. The department may issue an exotic aquatic plant permit for scientific research purposes only to an independent researcher with a department-approved research proposal or to an employee, representative, or agent of a research entity with a department-approved research proposal.

                          (2) Industrial/Commercial production. The department may issue an exotic aquatic plant permit for the production of foodstuffs for human or animal consumption, biofuel, nutraceuticals, pharmaceuticals, and cosmetics, or other manufactured products, or for propagation and interstate sale and transport.  Industrial/commercial production shall include aquaculture.

                         (3) Management and Control. The department may issue an exotic aquatic plant permit for the production of bio-control organisms, for removing and disposing of invasive exotic aquatic plants, and for other applications related to the use of exotic aquatic plants in the management of invasive exotic aquatic plant species.

                         (4) Wastewater Treatment. The department may issue an exotic aquatic plant permit for the use of exotic aquatic plants in wastewater treatment facilities.

                         (5) Educational. The department may issue an exotic aquatic plant permit for activities conducted for the purposes of encouraging management and conservation of plants and other natural resources and furthering awareness and understanding among the general public of the biology of plants and other natural resources.  An educational exotic aquatic plant permit will be issued only to employees, representatives, or agents of accredited primary, secondary or post-secondary educational institutions.

                         (6) Zoological. The department may issue an exotic aquatic plant permit for activities conducted for the purposes of furthering scientific understanding of aquatic plants, encouraging management and conservation of aquatic plants, or furthering awareness and understanding of the biology of aquatic plants.  A zoological exotic aquatic plant permit will be issued only to employees, representatives, or agents of facilities accredited by the American Zoo and Aquarium Association.

         §70.6. Permit Application.

                 (a) Form.  An applicant for an exotic aquatic plant permit shall submit a completed application on a form provided or approved by the department.

                 (b) Exotic Aquatic Plants Other than Microalgae. The department will not process an application for an exotic aquatic plant permit related to exotic aquatic plants other than microalgae unless it includes, at a minimum:

                         (1) a complete list of the species the applicant seeks to possess;

                         (2) the geographic source of the species the applicant seeks to possess;

                         (3) a risk assessment for each species the applicant seeks to possess, completed on a form approved or supplied by the department;

                         (4) a precise and accurate description of all activities the applicant seeks to conduct;

                         (5) control measures in place to prevent discharge of the species;

                         (6) the fee required by Chapter 53 of this title (relating to Finance); and,

                         (7) any additional information requested by the department to evaluate the application.

                 (c) Microalgae.  The department will not process an application for exotic aquatic plant permit related to microalgae unless the application includes, at a minimum:

                         (1) a complete list of the species or strains the applicant seeks to possess;

                         (2) the geographic source for each species or strain the applicant seeks to possess;

                         (3) for open systems, a risk assessment for each species or strain the applicant seeks to possess completed on a form approved or supplied by the department;

                         (4) for closed systems, any information about environmental tolerances that is available for each species or strain the applicant seeks to possess completed on a form approved or supplied by the department;

                         (5) a precise and accurate description of all activities the applicant seeks to conduct;

                         (6) control measures in place to prevent discharge of the species or strains;

                         (7) the fee required by Chapter 53 of this title (relating to Finance); and,

                         (8) any additional information requested by the department needed to evaluate the application.

                 (d) Propagation.  If an applicant seeks to propagate exotic aquatic plants in this state, the following information is required on an application, in addition to the information otherwise described in this section:

                         (1) the following information regarding discharges into water in the state:

                                  (A) evidence that the applicant possesses the appropriate valid wastewater discharge authorization or has received an exemption from the Texas Commission on Environmental Quality; or

                                  (B) documentation demonstrating that the facility is designed and will be operated in a manner such that no discharge of waste into or adjacent to water in the state will, or is likely to occur;

                         (2) an emergency plan describing the course of action to prevent and respond to an unauthorized discharge of exotic aquatic plants into the water in the state; and,

                         (3) documentation demonstrating that the facility complies with the provisions of §70.14 of this title (relating to Facility Requirements), including, but not limited to, an accurate-to-scale plat of the facility that specifically includes:

                                  (A) the location and functional identification of all facility infrastructure;

                                  (B) the name and physical address of the owner of the property or properties where prospective activities will take place;

                                  (C) all structures that drain the facility;

                                  (D) all points at which effluent of any kind is or may be discharged from the facility;

                                  (E) all structures or equipment designed or intended to prevent escapement of exotic aquatic plants or their propagules from the facility;

                                  (F) the location and design of all facility infrastructure; and,

                                  (G) sufficient information for the department to determine the effectiveness of facility system(s) at preventing discharge of the species for which a permit is requested outside of the facility including, at a minimum, a description of the material to be used and a schematic or other description of how the system is to be deployed.

                 (e) Memorandum of Understanding.  Information required to be submitted by or required to demonstrate compliance with the Memorandum of Understanding between the department, the Texas Commission on Environmental Quality, and the Texas Department of Agriculture at 30 TAC §7.103.

                 (f) Public Notice.  After receipt of an administratively complete application, the department will publish notice of the application and a request for public comment in the Texas Register prior to issuing the permit.  Provided, however, if immediate action regarding an application is necessary to prevent or address environmental, economic, or health problems, the department may process the permit application and issue or deny a permit without providing public notice under this subsection.

         §70.7 Disclosure of Information.

                 (a) If an applicant or permittee wishes to assert that any information submitted by the applicant or permittee to the department is not subject to public disclosure pursuant to the Public Information Act, Chapter 552, Government Code, the applicant or permittee shall clearly and conspicuously label such information as “confidential” or “trade secret.”  The applicant or permittee should not label information as “confidential” or “trade secret” unless the applicant or permittee can make a prima facie case of confidentiality or trade secret under the Public Information Act.

                 (b) Unless otherwise required by law, any information not labeled as provided in this section will be subject to public disclosure.

                 (c) The department will respond to a request for information obtained by the department from an applicant or permittee in accordance with the requirements of the Public Information Act, Chapter 552, Government Code, and other applicable law.

         §70.8 Permit Issuance or Renewal.

                 (a) An exotic aquatic plant permit issued by the department shall be issued to a named individual.  An entity, including, but not limited to corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity may be named as a co-permittee.  All individuals and entities listed on the permit shall be jointly and severally responsible for compliance with this subchapter and the conditions of the permit.

                 (b) The department may issue or renew an exotic aquatic plant permit upon finding that:

                         (1) the applicant has met all of the application requirements of this subchapter;

                         (2) the applicant has complied with all provisions of this subchapter and, if a renewal application, the conditions of a previous or current permit;

                         (3) the applicant’s facility meets all applicable facility design criteria listed in §70.14 of this title (relating to Facility Requirements);

                         (4) if the applicant is seeking to renew a permit, the applicant has submitted to the department an application for permit renewal and  the required fee at least 30 days prior to the expiration of the current permit, and has timely submitted all reports required by this subchapter; and,

                         (5) permit issuance or renewal should not be denied under §70.10 of this title (relating to Denial of Issuance or Renewal).

                 (c)  The department will not issue or renew an exotic aquatic plant permit until a facility inspection has been performed by department personnel and the department is satisfied that the facility is in compliance with the provisions of this subchapter.

                 (d) The department may issue a letter to a potential permit applicant provisionally approving a facility if the following conditions are met:

                         (1) the applicant submits a completed permit application, including all required information;

                         (2) the application meets all requirements for permit issuance, other than the requirement to obtain a facility inspection; and,

                         (3) the applicant submits facility plans and specifications to the department demonstrating that the planned facility will meet all facility requirements of this subchapter.

                 (e) If the department issues a letter to a potential permit applicant provisionally approving a facility, the department is not precluded from denying permit issuance if:

                         (1) the facility is not constructed within a reasonable period after issuance of the letter;

                         (2) the facility, as constructed, materially differs from the facility as planned, and does not meet the facility requirements of this subchapter; and,

                         (3) the information provided in and with the permit application materially changes after the issuance of the letter.

         §70.9. Permit Privileges and Restrictions.

                 (a) An exotic aquatic plant permit authorizes the permittee named on the permit to conduct specific activities at the places and times identified in the provisions of the permit.

                 (b) An exotic aquatic plant permit issued under the provisions of this subchapter is valid only for the species and activities specifically authorized in the provisions of the permit.

                 (c) An exotic aquatic plant permit shall be valid for a period of no more than five years, and shall expire on December 31 of the expiration year.

         §70.10. Denial of Issuance or Renewal.

                 (a) The department may refuse permit issuance or renewal based on, but not limited to, the following,

                         (1)  the application does not meet the requirements for a permit under this subchapter or other law;

                         (2) the applicant has failed to provide enough information or there is not enough information available about the exotic aquatic plant species the applicant seeks to possess to enable department staff to make a determination that the proposed use of the plant will not result in environmental, economic, or health problems;

                         (3) the applicant or permittee has failed to comply with the conditions of a previous permit issued by the department, including, but not limited to reporting requirements;

                         (4) the applicant is delinquent in submitting any funds owed to the department;

                         (5) the applicant’s permit has been suspended pursuant to Family Code Chapter 232;

                         (6) the applicant has made a false statement or material misrepresentation to the department in connection with applying for or renewing the permit;

                         (7) the applicant has refused to provide information requested by the department;

                         (8) the applicant has failed to provide all of the applicant’s criminal history information in response to the department’s request for information; or

                         (9) the applicant or permittee has been convicted, pleaded nolo contendere, received deferred adjudication or pretrial conversion, or assessed a civil penalty, if applicable, for a violation of:

                                  (A)  this subchapter;

                                  (B) Chapter 57, Subchapters A or C of this title; or

                                  (C) Parks and Wildlife Code that is a Class A misdemeanor, a Class B misdemeanor, or felony; or

                                  (D) 16 U.S.C. §§3371-3378 (the Lacey Act).

                 (b) The department may withhold the processing of a permit or renewal application if the applicant is a defendant in a criminal prosecution or proceeding to assess a civil penalty, if applicable, for a violation of:

                         (1)  this subchapter;

                         (2) Chapter 57, Subchapters A or C of this title; or

                         (3) Parks and Wildlife Code that is a Class A misdemeanor, a Class B misdemeanor, or felony; or

                         (4) 16 U.S.C. §§3371-3378 (the Lacey Act).

                 (c) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities.

         §70.11. Review of Agency Decision. An applicant for a permit under this subchapter may request a review of a decision of the department to deny issuance or renewal of a permit or to withhold processing of a permit.

                 (1) An applicant seeking review of a decision of the department to deny issuance or renewal of a permit or to withhold processing of a permit shall request a review by notifying the department in writing within 10 working days of being notified by the department of permit denial.

                 (2) The request for review shall be presented to a department review panel within 30 days after receipt of the request for review. The review panel shall consist of the following:

                         (A) the Deputy Executive Director for Natural Resources, or designee;

                         (B) the Director of the Inland Fisheries Division, or designee; and,

                         (C) the Director of the Coastal Fisheries Division, or designee.

                 (3) The applicant may appear before the review panel and make arguments.

                 (4) The review panel’s consideration of the review will be an informal process at which neither the Rules of Evidence nor the Rules of Civil Procedure will apply.  The department may dictate informal procedural requirements to ensure the orderly conduct of the review.

                 (5) The decision of the review panel is final.

                 (6) The deadlines provided in this section may be extended by mutual written agreement of the applicant and the department.

         §70.12. Discontinuation or Amendment of Permitted Activities.

                 (a) A permittee shall notify the department at least 14 days prior to cessation of operation of activities for which a permit was granted.

                 (b) If a permittee ceases permitted activities, the permittee shall:

                         (1) notify the department in compliance with the provisions of §70.16 of this title (relating to Notification, Reporting, and Recordkeeping Requirements); and,

                         (2) immediately and lawfully sell, transfer, or destroy all exotic aquatic plants for which a permit under this subchapter is required in accordance with a department-approved plan; and

                 (c) The department may order the immediate cessation of permitted activities and/or the removal of all permitted exotic aquatic plants from a facility or take other appropriate action upon:

                         (1) a determination that activities under the permit are causing or threatening to cause environmental, economic, or health problems; or

                         (2) an action by a federal or state agency resulting in the suspension or revocation of a clearance, permit, or authorization that is required under this subchapter as a condition of permit issuance.

                 (d) The permittee shall comply with instructions of the department regarding the handling of the exotic aquatic plant species, issued pursuant to this section.

         §70.13. Escape, Overflow, Toxicity, or Emergency.

                 (a) In the event that an exotic aquatic plant is discharged from a permitted facility, in a manner not authorized by the permit or this subchapter, the permittee is responsible for all costs associated with the detection, control, and eradication resulting from such discharge.

                 (b) A permittee shall immediately report to the department any harmful or toxic properties associated with the permitted species discovered during the course of conducting activities under the permit.

                 (c) If harmful or toxic properties associated with the permitted species are discovered during the course of conducting activities under the permit, the department may amend the permit to impose additional conditions or may revoke the permit.

                 (d) In the event that a facility appears in imminent danger of overflowing, flooding, or discharging exotic aquatic plants into the water in the state, the permittee shall:

                         (1) immediately notify the department; and,

                         (2) immediately begin implementation of the department-approved emergency plan.

                 (e) Upon discovery of the discharge, from a facility in a manner not otherwise authorized by the permit or this subchapter, regardless of the cause, the permittee shall:

                         (1) immediately halt all discharge from the facility; and,

                         (2) notify the department immediately following the discovery of the discharge.

                 (f) A permittee shall be considered to be in compliance with the  immediate notification requirements of this section if the permittee notifies the department within two hours after the permittee discovers or in the exercise of due care, should have discovered the event for which immediate notification is required.

         §70.14. Facility Requirements. The provisions of this section apply to a facility where exotic aquatic plants are possessed pursuant to a permit.  A permittee must allow department staff access to all facilities covered by the permit during any hours in which operations pursuant to the permit are occurring.

                 (1) A facility in which genetically modified aquatic plants will be possessed must be fully enclosed with all necessary safeguards in place to prevent the discharge of the genetically modified organisms.

                 (2) A facility must be designed to prevent the discharge into the environment of water or waste containing seeds, cuttings, or any other propagules of exotic aquatic plants from the permittee’s property.

                 (3) A facility may be required to provide netting and/or additional types of containment measures as determined necessary by department staff in order to exclude wildlife vectors and/or to prevent the discharge of exotic aquatic plant species via airborne propagules.

                 (4) A facility holding exotic aquatic plants, other than microalgae, shall have appropriately designed and constructed permanent screens placed between any point in the facility where the exotic aquatic plants are in water and the point where the water is discharged from the facility. The following shall apply to screens:

                         (A) The department shall determine the appropriate mesh size, depending on the species, to be installed in each facility.

                         (B) One screen must be permanently affixed in front of the final discharge outlet and remain in place at all times that the facility contains exotic aquatic plants for which a permit is required. This screen and backing material must be of sufficient strength to withstand a water level differential of the height of the discharge area.

                         (C) At a facility where discharge into the water in the state occurs, one screen must be secured over the terminal end of the discharge pipe at all times. This screen must be secured in such a fashion as to prevent escape of permitted species.

                         (D) Screens must be designed, built, and installed in such a fashion that they can be maintained and cleaned without allowing the discharge of the exotic aquatic plants or any propagules thereof being held under permit. The point of discharge of all mechanical harvesting devices must be double screened to prevent escapement.

                 (4) A facility holding microalgae shall be designed and constructed in a way to ensure the following:

                         (A) destruction of microalgae organisms or propagules prior to discharge into the water in the state or into a treatment facility; and,

                         (B) destruction of microalgae organisms or propagules contained in solid waste prior to discharge of the waste.

                 (5) A facility that is permitted for the production of microalgae and facilities located within the 100-year flood plain (referred to as Zone A on the National Flood Insurance Program Flood Insurance Rate Map) must be enclosed within an earthen or concrete dike or levee constructed in such a manner to exclude all flood waters and such that no section of the crest of the dike or levee is less than one foot above the 100-year flood elevation. Dike design or construction must be approved by the department before issuance of a permit.

                 (6) All discharges from a permitted facility shall be routed through devices as identified in the permit provisions for the facility.

                 (7) All devices required by this subchapter or the provisions of a permit must be in place and properly maintained and operated at all times that permitted exotic aquatic plants are possessed at the facility.

                 (8) The department may approve alternate methods of preventing the discharge of harmful or potentially harmful exotic aquatic plants or their propagules upon a finding that those methods are as or more effective in preventing the discharge of exotic aquatic plants or their propagules from the permitted facility.

         §70.15. Labeling, Packaging, and Transport.

                 (a) Applicability.  This section applies to an exotic aquatic plant that is not on the approved list and is possessed pursuant to an exotic aquatic plant permit.

                 (b) Transport.  Except as otherwise provided in this subchapter or a provision of the applicable exotic aquatic plant permit, no person may transport an exotic aquatic plant within this state or otherwise  discharge or remove an exotic aquatic plant from a permitted facility unless:

                         (1) the exotic aquatic plant is being transported to a person and facility that is authorized by permit issued under this subchapter to possess the exotic aquatic plant being transported;.

                         (2) the exotic aquatic plant is packaged in accordance with this section; and,

                         (3) the exotic aquatic plant is accompanied by a transport invoice that complies with this section during the entire period of time in which the exotic aquatic plant is in transport.

                 (c) Transport Invoice. A transport invoice required by this section shall contain the following information, legibly written, in English:

                         (1)  a unique invoice number (invoice numbers shall be sequential);

                         (2)  date of shipment;

                         (3)  name, address and phone number of shipper;

                         (4)  name, address and phone number of receiver;

                         (5)  the exotic aquatic species permit number of the shipper and receiver; and,

                         (6)  if applicable, the aquaculture license number of the shipper and receiver.

                 (d) Packaging.  Exotic aquatic plants being transported within this state shall be packaged as follows:

                         (1) Each package shall be a closed or sealed container having a volume no greater than three cubic feet.

                         (2) Each package shall contain only one species of exotic aquatic plant.

                         (3) Each package shall be identified by a label placed on the outside of the package that is clearly visible and bears the following, in English:

                                  (A) the legend “Exotic Aquatic Plant”; and

                                  (B) the scientific and common name of the species in the package.

                 (e) Additional Requirements for Toxic Species.  The following additional requirements shall apply to an exotic aquatic plant that has known toxic properties:

                         (1) Each package of the exotic aquatic plant shall have attached in a conspicuous place a label with the following words in at least 36 point bold font: “Toxic Species—Harmful to Persons or the Environment.”

                         (2) A retail display of the exotic aquatic plant shall include a prominent sign that advises customers or other persons that may come into contact with the plant that the plant causes harm to persons or the environment.

                 (f) Common Carriers.  A common carrier is not required to obtain an exotic aquatic plant permit to transport an exotic aquatic plant so long as a transport invoice complying with this section accompanies the exotic aquatic plant for the entire period in which the exotic aquatic plant is in the possession of the common carrier.

                 (g) Interstate Shipments.  An exotic aquatic plant may be transported without a permit or transport invoice if the exotic aquatic plant is being transported by common carrier:

                         (1) from a point of origin outside this state;

                         (2) to a destination outside this state;

                         (3) the exotic aquatic plant is not unloaded anywhere in this state; and,

                         (4) the exotic aquatic plant is in a fully enclosed transport facility.

                 (h) Alternative Means.  In response to a written request, the director, or designee, may issue a written notice authorizing alternative means of transport, packaging and labeling of an exotic aquatic plant if the director finds that:

                         (1) such alternative means are as or more effective in preventing the discharge of the exotic aquatic plant or its propagules as provided in this section; and,

                         (2) such alternative means will not significantly increase the department’s enforcement burden.

         §70.16. Notification, Reporting, and Recordkeeping.  In addition to notification, reporting, and recordkeeping requirements contained elsewhere in this subchapter, a permittee shall comply with the following requirements:

                 (1) All reports, notices, or other documents required to be submitted to the department by a permittee shall be submitted to the person or persons identified on the permit for submission of the report, notice or other document.

                 (2) All records and documents required by this subchapter shall promptly be provided upon request during normal business hours to any department employee or peace officer acting within the scope of official duties.

                 (3) Each permittee shall submit an annual report that accounts for importation, possession, transport, sale, transfer, or other disposition of any exotic aquatic species handled by the permittee. This report shall be submitted on forms provided by the department and shall be due January 10 of each year.

                 (4) As a condition of the permit, the department may impose additional reporting and/or recordkeeping requirements.

                 (5) A permittee who ships or receives any exotic aquatic plant species shall retain a copy of each transport invoice for a period of two years from the date of delivery of the shipment.

                 (6) A permittee shall immediately notify the department in the event of a change of ownership of a facility.

         §70.17. Approved Exotic Aquatic Plants. The following species of exotic aquatic plant species are approved for possession.  [LIST WILL BE PROVIDED SEPARATELY]

         §70.18. Amendment of the List of Approved Species.

               (a)  A person seeking to recommend that the department add species to the approved list shall submit to the department a completed application on a form provided or approved by the department, to add a species to the approved list.  At a minimum, the application shall include a risk assessment completed on a form approved or supplied by the department.

                 (b)  If department staff conclude that an exotic aquatic plant species should be added to the approved list, staff shall recommend to the Commission that this subchapter be amended to add the species to the approved list.  Any amendment of this subchapter will be pursuant to the rulemaking procedures specified in Government Code, Chapter 2001 (the Administrative Procedure Act).

                 (c) If department staff concludes that an exotic aquatic plant species should not be added to the approved list, the department will notify the applicant.

                 (d) The department may deny an application to add a species to the approved list if the applicant fails to provide sufficient information or sufficient information is not available about the exotic aquatic plant species to enable department staff to make a determination whether or not the species will cause or threaten to cause environmental, economic or health problems.

                 (e) The department shall maintain a list of ineligible species.  Such list shall be readily available to the public, including availability on the department’s Internet web site.

                 (f) The department will not consider an application to add an exotic aquatic plant species to the approved list if the species is on the ineligible species list, unless new information is provided regarding the risk assessment of the plant.

         §70.19. Prohibited Acts.

                 (a) It is an offense to violate any provision of this subchapter or any condition of a permit issued under this subchapter.

                 (b) It is an offense to possess any species of exotic aquatic plant or its propagules in this state, unless:

                         (1) the species is listed in §70.17 of this title (relating to Approved Species); or

                         (2) the possession is specifically authorized under the conditions of a permit issued under this subchapter.

         §70.20. Temporary Transition Provisions

                 (a)  A person who submits an application for an exotic aquatic plant permit under this subchapter on or before March 31, 2011, may continue to possess the exotic aquatic plants for which the permit is being sought without a permit until the department makes a determination to either issue or deny a permit so long as the species is not on the ineligible species list.

                 (b) A person who on December 31, 2010, has a department issued permit to possess a species of exotic aquatic plant that is on the ineligible species list may continue to engage in activities authorized by the permit so long as the person submits an application for an exotic aquatic plant permit under this subchapter on or before March 31, 2011 and continues to comply with the conditions of the permit.

                 (c) A person who submits an application to add a species to the approved list on or before March 31, 2011, may continue to possess the species covered in the application until such time as the department makes a determination to either add the species to the approved list or reject the application, so long as the species is not on the ineligible species list.

                 (d) An applicant or permittee who possesses an exotic aquatic plant species pursuant to this section shall dispose of any exotic aquatic plants in the applicant’s or permittee’s possession within the timeframes required by the department, in accordance with §70.12 of this title (relating to Discontinuation of Permitted Activities), if

                         (1) the department denies an application for an exotic aquatic plant permit submitted under this subchapter; or,

                         (2) the department denies an application to add a species to the approved list submitted under this section.

                 (e) This section expires on December 31, 2011.

         §70.21.  Violations and Penalties.  The penalties for a violation of this subchapter are prescribed by the Parks and Wildlife Code, including, but not limited to Chapter 66.


Committee Agenda Item No. 2
Exhibit B

Proposed §70.17. Approved Exotic Aquatic Plant Species.
The following species of exotic aquatic plants are approved for possession.
Species Common Name
Acorus calamus Green Sweetflag, Variegated Acorus
Acornus gramineus  
Acrostichum danaeifolium  
Alocasia amazonica  
Alocasia plumbae Taro, Plumbae
Alternanthera ficoidea Cherry Hedge, Green Hedge, Joseph's Coat, Bronze Hedge
Alternanthera reineckii Telanthera
Ammannia gracilis Ammannia gracilis
Ammannia senegalensis Ammannia senegalensis
Anubias var. 'frazeri’ Frazeri
Anubias afzelii Congensis, Afzelli, etc.
Anubias barteri Barteri, Coffefolia, Nana
Anubias congensis Congensis
Anubias gigantea  
Anubias gillettii  
Anubias gracilis  
Anubias hastifolia Anubias hastifolia
Anubias heterophylla  
Anubias minima Anubias minima
Anubias pynaertii  
Aponogeton boivinianus Boivinianus
Aponogeton capuronii  
Aponogeton crispus  
Aponogeton distachyos Water Hawthorne bulbs
Aponogeton longiplumulosus  
Aponogeton madagascariensis Madagascar lace plant
Aponogeton natans  
Aponogeton rigidifolius  
Aponogeton ulvaceus Aponogeton ulvaceus
Aponogeton undulatus  
Bacopa australis Bacopa australis
Bacopa caroliniana  
Bacopa lanigera  
Bacopa lenagera Variegated Bacopa
Bacopa monniera  
Bacopa monnieri  
Bacopa myriophylloides Bacopa myriophylloides
Barclaya longifolia  
Baumea rubiginosa Golden Swords
Bletilla striata  
Blyxa auberti Blyxia auberti
Blyxa japonica Blyxia japonica
Bolbitis heteroclita Bolbitis heteroclita
Bolbitis heudelotii Bolbitis heudelotii
Butomus umbellatus Rush, Flowering
Cabomba furcata Cabomba furcata
Cabomba pulcherrima Purple Cabomba
Caltha palustris Marsh Marigold
Cardamine lyrata Cardamine lyrata
Carex nigra Black Flowering Sedge
Cephalanthus occidentalis Button Bush
Ceratophyllum submersum Soft hornwort
Ceratopteris cornuta Floating Fern
Ceratopteris thalictroides Water Sprite, Indian Fern Water Sprite
Chamaedorea elegans Palms
Chladophora aegagropila Moss Balls
Colocasia affinis  
Colocasia esculenta Green Taro, Black Magic, Violet stemmed, Red, Rhubarb, Tea Cup
Colocasia gigantea Giant elephant ear
Colocasia illustris  
Colocasia multiflora Taro, Black Marble
Coreopsis aquatica Swamp Coreopsis
Crinum calamistratum Crinum calamistratum
Crinum hardyii  
Crinum natans Crinum natans
Crinum oliganthum Dwarf Bog Lily
Crinum procerum  
Crinum thaianum Onion Plant
Cryptocoryne affinis Cryptocoryne affinis
Cryptocoryne albida Cryptocoryne albida
Cryptocoryne amicorum  
Cryptocoryne blassii  
Cryptocoryne ciliata Cryptocoryne ciliata
Cryptocoryne cordata  
Cryptocoryne crispatula  
Cryptocoryne gasseri  
Cryptocoryne griffithii  
Cryptocoryne huderoi  
Cryptocoryne lingua  
Cryptocoryne longicauda  
Cryptocoryne lucens  
Cryptocoryne lutea Cryptocoryne lutea
Cryptocoryne moehlmannii  
Cryptocoryne nurii  
Cryptocoryne parva  
Cryptocoryne petchii  
Cryptocoryne pontederifolia  
Cryptocoryne retrospiralis  
Cryptocoryne siamensis  
Cryptocoryne spiralis Cryptocoryne spiralis
Cryptocoryne striolata  
Cryptocoryne sulphurea  
Cryptocoryne thwaitesii  
Cryptocoryne tonkinesis  
Cryptocoryne undulata  
Cryptocoryneusteriana  
Cryptocoryne villosa  
Cryptocoryne walkeri Cryptocoryne walkeri
Cryptocoryne wendtii Crypotocoryne wendtii, Green Wendtii, Red Wendtii
Cyperus helferi Cyperus helferi
Cyperus percamentus Dwarf Mexican Papyrus
Dicromena colorata Star Grass
Didiplis diandra Diandra
Dionea muscipula Venus Fly Trap
Dracaena borenquensis Green Sandy
Dracaena compacta Pineapple Plant
Dracaena sanderiana Green And White Sandy
Echinodorus amazonicus Amazon Sword
Echinodorus angustifolia  
Echinodorus argentinensis Rangeri Sword
Echinodorus aschersonianus Echinodorus aschersonianus
Echinodorus barthii Red Melon Sword, Broadleaf Amazon Sword
Echinodorus berteroi  
Echinodorus bleheri  
Echinodorus bolivianus  
Echinodorus cordifolius Radican Sword
Echinodorus grandifolius  
Echinodorus harbich Echinodorus harbich
Echinodorus horemanii Echinodorus horemanii ‘red’
Echinodorus horizontalis  
Echinodorus martii  
Echinodorus osiris  
Echinodorus palaefolius Mexican Sword Plant
Echinodorus parviflorus  
Echinodorus portoalegrensis  
Echinodorus quadricostatus Broad Leaf Chain Sword
Echinodorus rostratus Erect Burhead
Echinodorus schlueteri Echinodorus schlueteri
Egeria najas  
Eleocharis tuberosa Chinese Water Chestnut Rush
Eleocharis vivipara  
Equisetum giganteum Giant Horsetail
Equisetum scirpoides Dwarf Horsetail
Eriocaulon cinerrum Hatpins
Fontinalis antipyretica  
Glossostigma elatinoides Glossostigma elatinoides
Gunnera perpensa River Pumpkin
Hemianthus callitrichoides Dwarf Baby Tears
Hemianthus micranthemoides Baby Tears
Hemigraphis exotica Purple Waffle
Hemigraphis repanda Dragon Flame
Hibiscus acetosella Water Hybiscus, Red-Night Blooming
Hibiscus coccineus Red Water Hibiscus
Hottonia palustris  
Hydrotriche hottoniflora  
Hygrophila difformis Wisteria, Water Wisteria
Hymenocalis caribaea Spider Lily
Hymenocalis speciosa Green-tinge Spider Lily
Iris ensata  
Iris fulva Iris, Red
Iris kaempferi Iris, Japanese
Iris laevigata Rabbit Ear Iris
Iris louisiana Purple Black Gamecock
Iris pseudacorus Yellow Iris, Double Yellow Iris
Iris tectorum  
Iris versicolor Blue Iris, Red Iris, etc
Isoetes lacustris  
Juncus glaucus Common Rush, Blue Rush, Juncus glauca
Juncus inflexus Rush, Corkscrew Blue Medusa
Juncus spiralis Corkscrew Juncus
Lilaeopsis brasiliensis Micro Sword
Lilaeopsis carolinensis Giant Micro Sword, Lilaeopsis
Lilaeopsis mauritiana Narrow Leaf Micro Swords
Limnophila asiatica  
Limnophila aromatica Limnophila aromatica
Limnophila hippuroides  
Limnophila indica Ambulia
Ludwigia glandulosa Ludwigia Peruensis
Ludwigia inclinata  
Ludwigia ovalis Ludwigia Ovalis
Ludwigia palustris Narrow Leaf Lud
Ludwigia repens Broad Leaf Ludwigia
Ludwigia sedioides  
Marsilia drummondii Green Water Clover (fern)
Marsilea hirsuta Dwarf Four Leaf Clover
Marsilea mutica Variegated Clover
Mayaca fluviatillis  
Mentha aquatica Large Leaf Aquatic Mint, Aquatic Mint, Curly Water Mint
Menyanthes trifoliata Bog Bean
Micranthemum umbrosum  
Micromeria brownei  
Microsorium pteropus Java Fern, Narrow Leaf Java Fern, etc.
Monosolenium terenum Monosolenium terenum
Montrichardia linifera  
Musa basjoo Hardy Banana
Myosotis scorpioides Water Forget-Me-Nots
Myriophyllum aquaticum Parrot’s Feather, Red Parrot's Feather
Myriophyllum heterophyllum. Dwarf Parrot's Feather
Myriophyllum mattogrossense  
Myriophyllum pinnatum  
Myriophyllum simulans  
Myriophyllum tuberculatum  
Najas gracillima  
Nelumbo nucifera East Indian Lotus, Oriental Lotus
Neptunia aquatica Sensitive Plant
Nesaea crassicaulis Nesaea crassicaulis
Nesaea pedicellata Nesaea pedicellata
Nuphar japonica Japanese Spatterdock, Cape Fear MD Spatterdock
Nymphaea alba  
Nymphaea amazonum Amazon waterlily
Nymphaea atrans  
Nymphaea caerulea Egyptian lotus
Nymphaea calliantha  
Nymphaea capensis Cape Blue waterlily
Nymphaea carpentariae  
Nymphaea colorata  
Nymphaea daubenyana  
Nymphaea flavovirens  
Nymphaea gigantea  
Nymphaea immutabilis  
Nymphaea jamesoniana  
Nymphaea lotus  
Nymphaea micrantha  
Nymphaea microsperma  
Nymphaea minuta  
Nymphaea prolifera  
Nymphaea pubescens  
Nymphaea pulchella  
Nymphaea pygmaea  
Nymphaea rubra  
Nymphaea spontanea  
Nymphaea stellata  
Nymphaea tetragona  
Nymphaea togoensis  
Nymphaea violacea  
Nymphoides cristata White Variegated Snowflake
Nymphoides geminata Yellow Snowflake
Nymphoides indica Giant Snowflake
Nymphoides peltata Floating heart
Oenanthe javanica Korean Sunrise, Variegated Water Celery
Orontium aquaticum  
Oryza sativa Red Dragon Rice
Peltandra virginica  
Physostegia leptophylla Florida Crypt, Obedient Plant
Pilea cadierei  
Plantago major Red Plantain
Pogostemon helferi Pogostemon helferi
Pogostemon stellata Pogostemon stellata
Pontederia dilatata Royal Blue Pickerel
Pontederia lanceloata Pickerelweed, cultivars of sp.
Ranunculus flammula Miniature Spearwort
Ranunculus rivularis Feather leaf Ranunculus
Regnellidium diphyllum Two Leaf Water Clover
Riccia fluitans  
Rotala macrandra  
Rotala nanjenshan Rotala nanjeshan
Rotala rotundifolia Rotala Indica
Rotala wallichii Rotala wallichii
Sagittaria filiformis Threadleaf Arrowhead
Sagittaria isoeitformis  
Sagittaria montividensis Aztec / Ruby-eyed Arrowhead
Sagittaria platyphylla  
Sagittaria subulata Dwarf Sagittaria
Sarracenia rubra Pitcher Plant
Saururus chinensis Chinese Lizards Tail
Scirpus albescens White Rush
Shinnersia rivularis  
Spathiphyllum tasson Brazil Sword
Syngonium podophyllum Red Arrowhead
Thalia geniculata ruminoides Red Stemmed Thalia
Tulbaghia violacea  
Typha angustifolia  
Typha laxmannii Graceful Cattail
Typha minima Dwarf Cattail
Typhonodorum lindleyana Water Banana
Vallisneria nana Vallisneria gigantea
Vesicularia dubyana Java Moss
Villarsia reniformis Yellow Marsh Flower
Victoria amazonica Amazon water-lily
Victoria cruziana  
Wedelia trilobata Wedelia
Xanthosoma atrovirens  
Zantedeschia sp. Calla
Zephyranthes candida Dwarf Onion Plant, Pink Zephyr Lily
Zephyranthes grandiflora Rain lily, Pink rain lily, Storm lily
Marine and Brackish Exotic Aquatic Plants
Species Common Name
Caulerpa paspaloides  
Cymopolia barbata  
Dictyota divaricata  
Enteromorpha compressa  
Gracilaria mammillaris  
Gymnogongrus griffithsiae  
Halimeda opuntia  
Jania rubens  
Penicillus lamourouxii  
Udotea conglutinata  

Committee Agenda Item No. 4
Presenter:  Robert Perez

Regulations Committee
Status of Quail in Texas
August 25, 2010

I.       Executive Summary:  This item provides an overview of the status of quail in Texas, TPWD’s current and future conservation and management strategies, and long-term issues impacting quail habitat in Texas.

II.     Discussion:  Bobwhite quail numbers have declined dramatically throughout their traditional habitat in the southeastern United States.  Texas is one of the last strongholds for bobwhites, but has not been immune to decline.  Conservationists concur that these losses are a result of changing land uses that have reduced the amount of suitable quail habitat on the Texas landscape.  The recently completed Upland Game Bird Strategic Plan outlines a process to ensure the preservation of bobwhites and other upland game birds in Texas and their diverse natural habitats for present and future generations.  The strategic plan calls for state and federal agencies, private conservation organizations and private landowners to focus attention on the problems affecting quail and other game birds and to initiate solutions targeting the restoration of these species.


Committee Agenda Item No. 6
Presenter:  Robert Goodrich

Regulations Committee
Joint Enforcement Agreement Between
TPWD and National Oceanic Atmospheric Administration (NOAA)/
National Marine Fisheries Service (NMFS)
August 25, 2010

I.       Executive Summary:  Staff will provide an update on the Joint Enforcement Agreement between TPWD and National Oceanic Atmospheric Administration, National Marine Fisheries Service.

II.     Discussion:  Since 2002 with Executive approval, the TPWD Law Enforcement Division has continued to enter into a Joint Enforcement Agreement with NOAA/NMFS.  This agreement provides the agency with funds for equipment and man-hours to cooperatively enforce federal laws and regulations consistent with Magnuson-Stevens Fishery Conservation and Management Act, the Endangered Species Act and the Marine Mammal Protection Act. An updated review provides insight into the ongoing accomplishments and success of this program.


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