Commission Agenda Item No. 8
Presenter:  Wendy Connally

Action
Threatened and Endangered Nongame Species
January 26, 2012

I.       Executive Summary:  This item seeks adoption of proposed amendments to the department’s lists of federally endangered and state threatened nongame wildlife.  The proposed amendments would:

II.      Discussion:  Under Parks and Wildlife Code, Chapter 68, a species of fish or wildlife indigenous to Texas is endangered if it appears on the United States List of Endangered Native Fish and Wildlife or is on a list of species threatened with statewide extinction as filed by the director of the department with the Texas Secretary of State.  As a matter of policy, the federal list is maintained by rule as a convenience to the public.

The brown pelican, Pelecanus occidentalis was federally listed as an endangered species in 1970.  Due to successful recovery efforts, it was delisted in 2009.  The proposed amendments would remove the brown pelican from the endangered species list maintained by rule.  Two species of aquatic beetles have been listed by the U.S. Fish and Wildlife Service as endangered. The proposed amendments would add those species to the state endangered list.  The proposed rule also adjusts nomenclatural references to two species of snakes, one species of bird, and one species of amphibian

Staff was authorized at the November 2011, meeting of the Regulations Committee to publish the proposed rules for public comment.  The proposed amendments were published in the November 25, 2011, issue of the Texas Register (36 TexReg 7965).  Staff will present a summary of public comment at the time of the meeting.

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

“The Texas Parks and Wildlife Commission adopts amendments to §65.175 and §65.176, concerning Threatened and Endangered Nongame Species, with changes as necessary to the proposed text as published in the November 25, 2011, issue of the Texas Register (36 TexReg 7965).”

            Attachments — 1

  1. Exhibit A – Proposed Threatened and Endangered Species Rules

Commission Agenda Item No. 8
Exhibit A

THREATENED AND ENDANGERED SPECIES RULES
PROPOSAL PREAMBLE

1.  Introduction.

         The Texas Parks and Wildlife Department (the department) proposes amendments to §65.175 and §65.176, concerning Threatened and Endangered Nongame Species.

         The proposed amendment to §65.175, concerning Threatened Species, would clarify that there are two subspecies of scarlet snake (Cemophora coccinea copei and Cemophora coccinea lineri) and that only one subspecies of northern cat-eyed snake (Leptodeira septentrionalis septentrionalis) is affected by the listing of that species.

         The proposed amendment to §65.176, concerning Endangered Species, would remove the brown pelican (Pelicanus occidentalis), add two species of aquatic animals (the Comal Springs riffle beetle (Heterelmis comalensis) and Comal Springs dryopid beetle (Stygoparnus comalensis), and update the scientific names for the Houston toad and golden-cheeked warbler.

         Under Parks and Wildlife Code, Chapter 68, a species is endangered under state law if it 1) indigenous to Texas and listed by the federal government as endangered; or 2) designated by the executive director of the Texas Parks and Wildlife Department as “threatened with statewide extinction.” Tex. Parks & Wild. Code §68.002.  At the current time, the department maintains a single list of endangered species that contains only those species indigenous to Texas listed by the federal government as endangered. The only species considered as “threatened with statewide extinction” under state law are those species listed by the federal government. The Comal Springs riffle beetle and the Comal Springs dryopid beetle were listed as endangered by the U.S. Fish and Wildlife Service on July 17, 1997 and were inadvertently not added to the state endangered list at the time. The proposed amendment rectifies that oversight. The brown pelican was removed from the federal list of endangered species in November of 2009.

         From time to time the scientific community reclassifies an organism in light of consensus and/or emerging science. The Houston toad, formerly classified as Bufo houstonensis, and the golden-cheeked warbler, formerly classified as Dendroica chrysoparia, have been reclassified; therefore the proposed amendment would reflect those changes, listing the species as Anaxyrus houstonensis and Setophaga chrysoparia, respectively.

         Under Chapter 68, the department is not required to list federally endangered species by rule; however, whenever the federal government modifies the list of endangered species, the executive director is required to file an order with the secretary of state accepting the modification. Similarly, the executive director may amend the list of species threatened with statewide extinction by filing an order with the secretary of state, but must provide notice of intent to file such an order at least 60 days prior to filing the order. Tex. Parks & Wild. Code §68.004.  This rulemaking constitutes the department’s notice of intent to modify the endangered species list which also serves as the list of species threatened with statewide extinction, as required under Chapter 68.

2. Fiscal Note.

         Ms. Wendy Connally, Texas Conservation Action Plan Coordinator, has determined that for each of the first five years the amendments as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of rare species, the opportunity for the public to enjoy the regulated use of recovered species, and regulations that are accurate and informative.

         (B) There will be no adverse economic impact on persons required to comply with the rules as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that there will be no adverse economic impacts on small businesses or microbusinesses as a result of the proposed amendments. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (C)  The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

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

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

4. Request for Public Comment.

         Comments on the proposed rules may be submitted to Ms. Wendy Connally, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4975, e-mail: wendy.connally@tpwd.state.tx.us.

5. Statutory Authority.

         The amendments are proposed under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species, and Chapter 68, which authorizes regulations necessary to administer the provisions of Chapter 68 and to attain its objectives, including regulations to govern the  publication and distribution of lists of species and subspecies of endangered fish or wildlife and their products and limitations on the capture, trapping, taking, or killing, or attempting to capture, trap, take, or kill, and the possession, transportation, exportation, sale, and offering for sale of endangered species.

         The proposed amendments affect Parks and Wildlife Code, Chapters 67 and 68.

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

State-Listed Threatened Species in Texas

MAMMALS

Margay Leopardus (Felis (=Felis) wiedii)Louisiana Black Bear (Ursus americanus luteolus)Black Bear (Ursus americanus)White-nosed Coati (Nasua narica)Southern Yellow Bat (Lasiurus ega)Spotted bat (Euderma maculatum)Rafinesque’s Big-eared Bat (Corynorhinus rafinesquii)Texas Kangaroo Rat (Dipodomys elator)Coues’ Rice Rat (Oryzomys couesi)Palo Duro Mouse (Peromyscus truei comanche)Gervais’ Beaked Whale (Mesoplodon europaeus)Goose-beaked Whale (Ziphius cavirostris)Pygmy Sperm Whale (Kogia breviceps)Dwarf Sperm Whale (Kogia simus)Killer Whale (Orcinus orca)False Killer Whale (Pseudorca crassidens)Short-finned Pilot Whale (Globicephala macrorhynchus)Pygmy Killer Whale (Feresa attenuata)Atlantic Spotted Dolphin (Stenella frontalis)Rough-toothed Dolphin (Steno bredanensis)

BIRDS

Bald Eagle (Haliaeetus leucocephalus)Common Black-hawk (Buteogallus anthracinus)Gray Hawk (Asturina nitidus)White-tailed Hawk (Buteo albicaudatus)Zone-tailed Hawk (Buteo albonotatus)

Peregrine Falcon (Falco peregrinus anatum)Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum)Mexican Spotted Owl (Strix occidentalis lucida)Piping Plover (Charadrius melodus)Reddish Egret (Egretta rufescens)White-faced Ibis (Plegadis chihi)Wood Stork (Mycteria americana)Swallow-tailed Kite (Elanoides forficatus)Sooty Tern (Sterna fuscata)Northern Beardless-tyrannulet(Camptostoma imberbe)Rose-throated Becard (Pachyramphus aglaiae)Tropical Parula (Parula pitiayumi)Bachman’s Sparrow (Aimophila aestivalis)Texas Botteri’s Sparrow (Aimophila botterii texana)Arizona Botteri’s Sparrow (Aimophila botterii arizonae)

REPTILES

Green Sea Turtle (Chelonia mydas)Loggerhead Sea Turtle (Caretta caretta)

Alligator Snapping Turtle (Macrochelys temminckii)Cagle’s Map Turtle (Graptemys caglei)Chihuahuan Mud Turtle (Kinosternon hirtipes murrayi)Texas Tortoise (Gopherus berlandieri)Reticulated Gecko (Coleonyx reticulatus)Reticulate Collared Lizard (Crotaphytus reticulatus)Texas Horned Lizard (Phrynosoma cornutum)Mountain Short-horned Lizard (Phrynosoma hernandesi)Scarlet Snake (Cemophora coccinea copei, C. c. lineri)Black-striped Snake (Coniophanes imperialis)Indigo Snake (Drymarchon corais)Speckled Racer Drymobius margaritiferus)Northern Cat-eyed Snake (Leptodeira septentrionalis septentrionalis)

Louisiana Pine Snake (Pituophis ruthveni)Brazos Water Snake (Nerodia harteri)Smooth Green Snake (Liochlorophis vernalis)Trans-Pecos Black-headed Snake (Tantilla cucullata)Chihuahuan Desert Lyre Snake (Trimorphodon vilkinsonii)Timber (Canebrake) Rattlesnake (Crotalus horridus)

AMPHIBIANS

San Marcos Salamander (Eurycea nana)Cascade Caverns Salamander (Eurycea latitans)Comal Blind Salamander (Eurycea tridentifera)Blanco Blind Salamander (Eurycea robusta)Black-spotted Newt (Notophthalmus meridionalis)South Texas Siren (large form) (Siren sp.1)Mexican Tree Frog (Smilisca baudinii)White-lipped Frog (Leptodactylus fragilis)Sheep Frog (Hypopachus variolosus)Mexican Burrowing Toad (Rhinophrynus dorsalis)

FISHES

Shovelnose Sturgeon (Scaphirhynchus platorynchus)Paddlefish (Polyodon spathula)Mexican Stoneroller (Campostoma ornatum)Rio Grande Chub (Gila pandora)Blue Sucker (Cycleptus elongatus)Creek Chubsucker (Erimyzon oblongus)Toothless Blindcat (Trogloglanis pattersoni)Widemouth Blindcat (Satan eurystomus)Conchos Pupfish (Cyprinodon eximius)Pecos Pupfish (Cyprinodon pecosensis)Rio Grande Darter (Etheostoma grahami)Blackside Darter (Percina maculata)Opossum Pipefish (Microphis brachyurus)River Goby (Awaous banana)Mexican Goby (Ctenogobius claytonii)San Felipe Gambusia (Gambusia clarkhubbsi)Blotched Gambusia (Gambusia senilis)Devils River Minnow (Dionda diaboli)Arkansas River Shiner (Notropis girardi)Bluehead Shiner (Pteronotropis hubbsi)Chihuahua Shiner (Notropis chihuahua)Bluntnose Shiner (Notropis simus)Proserpine Shiner (Cyprinella proserpina)

MOLLUSCS

False spike (Quadrula mitchelli)
Golden orb (Quadrula aurea)
Louisiana Pigtoe (Pleurobema ridellii)
Mexican fawnsfoot (Truncilla cognata)
Salina mucket (Potamilus metnecktayi)
Sandbank pocketbook (Lampsilis satura)
Smooth pimpleback (Quadrula houstonensis)
Southern hickorynut (Obovaria jacksoniana)
Texas fatmucket (Lampsilis bracteata)
Texas fawnsfoot (Truncilla macrodon)
Texas heelsplitter (Potamilus amphichaenus)
Texas hornshell (Popenaias popeii)
Texas pigtoe (Fusconaia askewi)
Texas pimpleback (Quadrula petrina)
Triangle pigtoe (Fusconaia lananensis)

         §65.176. Endangered Species. The following species are endangered species.

Endangered Species

MAMMALS

Mexican long-nosed Bat (Leptonycteris nivalis)Jaguar (Panthera onca)Jaguarundi  (Herpailurus (=Felis) yagouaroundi cacomii)West Indian Manatee (Trichecus manatus)Ocelot (Leopardus (=Felis) pardalis)Finback Whale (Balaenoptera physalus)Humpback Whale (Megaptera novaeangliae)Gray Wolf (Canis lupus)Red Wolf (Canis rufus)

BIRDS

Whooping Crane (Grus americana)Eskimo Curlew (Numenius borealis)

Northern Aplomado Falcon (Falco femoralis septentrionalis)Southwestern Willow Flycatcher (Empidonax traillii extimus)

[Brown Pelican (Pelecanus occidentalis)]

Attwater’s Prairie-chicken (Tympanuchus cupido attwateri)Interior Least Tern (Sterna antillarum athalassos)Black-capped Vireo (Vireo atricapilla)Golden-cheeked Warbler (Setophaga [dendroica] chrysoparia)Red-cockaded Woodpecker (Picoides borealis)

REPTILES

Hawksbill Sea turtle (Eretmochelys imbricata)Kemp’s Ridley Sea turtle (Lepidochelys kempii)Leatherback Sea turtle (Dermochelys coriacea)

AMPHIBIANS

Barton Springs Salamander (Eurycea sosorum)Texas blind Salamander (Typhlomolge rathbuni)Houston Toad (Anaxyrus [Bufo] houstonensis)

FISHES

Fountain Darter (Etheostoma fonticola)Big Bend Gambusia (Gambusia gaigei)Clear Creek Gambusia (Gambusia heterochir)Pecos Gambusia (Gambusia nobilis)San Marcos Gambusia (Gambusia georgei)Rio Grande Silvery Minnow (Hybognathus amarus)Comanche Springs Pupfish (Cyprinodon elegans)Leon Springs Pupfish (Cyprinodon bovinus)Smalltooth Sawfish (Pristis pectinata)

MOLLUSCS

Pecos Assiminea Snail (Assiminea pecos)

CRUSTACEA

Peck’s Cave Amphipod (Stygobromus (=Stygonectes) pecki)

AQUATIC ANIMALS

Comal Springs riffle beetle (Heterelmis comalensis)

Comal Springs dryopid beetle (Stygoparnus comalensis)

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

         Issued in Austin, Texas, on


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