Work Session

Wednesday, May 22, 2013
9 a.m.

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

Chairman T. Dan Friedkin
Carter Smith, Execcutive Director

Approval of the Previous Minutes from the Work Session held March 27, 2013

    Land and Water Plan

  1. Update on TPWD Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan—Carter Smith
    • Internal Affairs Report
    • Migratory Game Bird Proclamation
    • License Sales System
    • Battleship TEXAS Major Repairs
    • Zebra Mussels Public Awareness Campaign
    • Lake Conroe Habitat Improvement Project Recognition
    • Law Enforcement Outreach – Women in the Wild
    • West Response
  2. Legislation

  3. Legislative Update—Permission to Publish Rules Related to Implementation of Legislation Passed During the 83rd Texas Legislature—Carter Smith
  4. Financial

  5. Financial Overview—Justin Halvorsen
  6. Year-to-Date Fishing License Update—Mike Jensen
  7. Natural Resources Regulations

  8. Red Snapper—Discuss Recent Actions by the Gulf of Mexico Fishery Management Council related to the Management of Red Snapper Stocks within the Exclusive Economic Zone (EEZ) off of Texas—Ann Bright (Executive Session Only)
  9. Commercial Finfish Reporting Requirements—Mandatory Electronic Reporting—Request Permission to Publish Proposed Changes in the Texas Register—Brandi Reeder
  10. Use of Dogs to Trail Wounded Deer—Request Permission to Publish Proposed Changes in the Texas Register—Larry Young
  11. Exotic Species Rule Amendments regarding Transport of Tilapia and Triploid Grass Carp—Request Permission to Publish Proposed Changes in the Texas Register—Ken Kurzawski
  12. Revised Environmental Memorandum of Understanding (MOU) with the Texas Department of Transportation (TxDOT)—Request Permission to Publish Proposal to Adopt TxDOT MOU—Ted Hollingsworth
  13. Hunter Education Course Requirements—Request Permission to Publish Proposed Changes in the Texas Register—Nancy Herron, Robert Ramirez
  14. Land Conservation—Land Acquisition

  15. Land Acquisition—Yoakum County—Approximately 4,500 Acres as an Addition to the Yoakum Dunes Preserve—Corky Kuhlmann (Action Item No. 8)
  16. Land Conservation—Land Transfer

  17. Land Transfer—Cherokee County—Remnant Tracts to the City of Rusk—Ted Hollingsworth (Action Item No. 6)
  18. Land Conservation—Other Land Transactions

  19. Update on Surface Use Negotiations—Dimmit and La Salle Counties Oil and Gas Development at the Chaparral Wildlife Management Area—Ross Melinchuk (Executive Session)

Work Session Item No. 1
Presenter: Carter Smith

Work Session
TPWD Land and Water Resources Conservation and Recreation Plan
May 22, 2013

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 Commission on TPWD’s recent progress in achieving the Plan’s goals, objectives and deliverables.

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

Work Session Item No. 2
Presenter: Carter Smith

Work Session
Legislative Update
May 22, 2013

I.       Executive Summary: Executive Director Carter Smith will present a legislative update regarding the 83rd Texas Legislature.

II.     Discussion: Executive Director Carter Smith will update the Commission on the deliberations of the Conference Committee on Appropriations and other major legislative issues and initiatives impacting Texas Parks and Wildlife Department.  In addition, permission will be requested to publish proposed rules in the Texas Register that may be required to implement legislation enacted by the 83rd Texas Legislature.


Work Session Item No. 3
Presenter: Justin Halvorsen

Work Session
Financial Overview
May 22, 2013

I.       Executive Summary:  Staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD).

II.     Discussion: Staff will update the Commission on revenue collected by TPWD for FY 2013 and will compare the FY 2013 budget to FY 2013 expenditures and summarize recent budget adjustments.


Work Session Item No. 4
Presenter: Mike Jensen

Work Session
Year-to-Date Purchase of Fishing Licenses
May 22, 2013

I.       Executive Summary:  Staff will brief the Commission on recreational fishing licenses and evaluate the programmatic and fiscal implications of transitioning them to a year from purchase model.

II.     Discussion:

  • Staff will provide a summary of all recreational hunting and fishing licenses.
  • Staff will discuss the programmatic and fiscal implications of transitioning all recreational fishing licenses from fixed license years to a year from purchase model.

Work Session Item No. 5
Presenter: Ann Bright

Work Session (Executive Session Only)
Red Snapper
May 22, 2013

I.       Executive Summary:  Attorneys from TPWD and the Office of the Attorney General (OAG) will brief the Commission regarding the lawsuit recently filed by TPWD and the Louisiana Department of Wildlife and Fisheries (LDWF) challenging an emergency rule enacted by the National Marine Fisheries Service (NMFS) severely restricting the harvest of red snapper in the Exclusive Economic Zone (EEZ) off Texas, Louisiana and Florida.  (The State of Texas, et al. v. Roy E. Crabtree, et al., Civil Action No. 13-cv-00070, in the United States District Court for the Southern District of Texas, Brownsville Division.)

II.     Discussion:  The federal Magnuson-Stevens Fishery Conservation and Management Act established eight fishery management councils to help manage the fisheries in the Exclusive Economic Zone (EEZ).  Texas is a member of the Gulf of Mexico Fishery Management Council (GMFMC), which consists of 17 voting members comprised of state fish and wildlife agency, university, commercial and recreational fishery representatives from the States of Texas, Louisiana, Mississippi, Alabama, and Florida, and the National Marine Fisheries Service (NMFS).  These Councils are administered by NMFS, an agency within the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce.  Governor Perry nominates members to the Council as do the Governors from the other Gulf States.  In addition to the state fish and wildlife agency representation, each state has at least one other representative.

For several years, the red snapper recreational regulations in Texas state waters (set by the Texas Parks and Wildlife Commission) have been different than the federal regulations in the EEZ.  Although some at NMFS and members of the public have raised concerns about this inconsistency, Texas has operated with one standard in Texas Territorial Sea (TTS) (4 fish daily bag limit, 15 inch minimum size limit, open year around) and another in the EEZ (2 fish bag limit, 16 inch minimum size limit).

On Friday February 8, 2013, at a meeting of the GMFMC, a motion was narrowly passed to initiate an emergency rulemaking that would essentially allow a significant reduction in red snapper harvest in the EEZ in those states that have not adopted regulations consistent with the federal regulations.  As published in the federal register on March 25, the emergency rule would empower the NMFS southeast regional administrator to reduce the red snapper season in federal waters off Texas, Louisiana, and Florida.

On April 18, the Gulf council voted 8 to 7 to overturn the emergency rule, in effect reversing the February 8 vote.  However, it is unknown if NMFS will seek to repeal the emergency rule.  Therefore, on April 22, 2013, TPWD and Louisiana Department of Wildlife and Fisheries (LDWF) joined together to file a lawsuit in United States District Court in Brownsville, Texas challenging the emergency regulation.  The federal court has been asked to expedite its consideration of the case so that a decision is reached before the states are impacted by the NMFS emergency rule.

TPWD and OAG attorneys will brief, advise and discuss the lawsuit with the Commission in executive (closed) session as authorized by the Open Meetings Act (Tex. Gov’t Code §551.071).


Work Session Item No. 6
Presenter: Brandi Reeder

Work Session
Commercially Protected Finfish License Rules
May 22, 2013

I.       Executive Summary:  This item seeks permission to publish proposed amendments to rules governing reporting requirements for the holders of a Commercially Protected Finfish License in the Texas Register for public comment.  The proposed amendment would require license holders to submit invoices electronically within 24 hours of each instance of importing, exporting, or transporting commercially protected finfish.

II.     Discussion:  Under Parks and Wildlife Code, §66.020, it is unlawful for any person to buy or offer to buy, sell or offer to sell, possess for the purpose of sale, transport or ship for the purpose of sale, barter, or exchange commercially protected finfish (bass of the genus Micropterus, blue marlin, crappie, flathead catfish, jewfish, longbill spearfish, muskellunge, northern pike, red drum, sailfish, sauger, snook, spotted sea trout, striped bass, tarpon, walleye, white bass, white marlin, yellow bass, or hybrids of any of those fish).  With certain exceptions (such as transport through Texas by common carrier, aquaculture, etc.), the statute applies to the possession, transportation, sale, or purchase of commercially protected finfish without regard to where the fish was taken, caught, or raised.

Under department rules (31 TAC Chapter 57, Subchapter D), the holder of a commercially protected finfish license is required to generate a shipping invoice for each shipment of commercially protected finfish that is imported, exported, or transported in Texas, and to forward that invoice to the department by the 10th day of the month following the month in which the regulated activity occurred.  Staff has determined that given the prevalence of automation in the workplace, the widespread availability of affordable digital devices, and the benefits to the department of increased efficiency, there is justification for requiring licensees to submit all information electronically within 24 hours.  Therefore, staff is seeking permission to publish a proposed amendment in the Texas Register to require holders of a Commercially Protected Finfish License to file required information electronically.


Work Session Item No. 7
Presenter: Larry Young

Work Session
Use of Dogs to Trail Wounded Deer
May 22, 2013

I.       Executive Summary:  This item seeks permission to publish a proposed amendment to the Statewide Hunting Proclamation in the Texas Register for public comment.  The proposed amendment would allow the use of not more than two dogs to trail wounded deer in 12 counties where the use of dogs to trail wounded deer is currently prohibited.

II.     Discussion:  Under Parks and Wildlife Code, §62.0065, the Commission by rule may authorize the use of dogs to trail wounded deer.  In 1990 the department promulgated rules prohibiting the use of dogs to trail deer in 35 counties in deep East Texas where the use of dogs to unlawfully hunt deer was endemic.  The department at that time determined that the use of dogs to hunt deer was causing depletion of the resource and in the process denying others an equitable and reasonable privilege to hunt deer. The department’s 1990 rulemaking was based on the department’s statutory duty to prevent the depletion of deer populations and to provide for the most equitable and reasonable privilege to hunt (Parks and Wildlife Code, §61.055).  In 2000 and 2005, staff from the Wildlife Division and Law Enforcement Division determined that the practice of using dogs to hunt deer had declined to the point of being nonexistent in 12 of the 35 counties, and those counties were removed from the list of counties where the use of dogs was prohibited to trail wounded deer.

After discussions with department biologists and law enforcement staff, the White-tailed Deer Advisory Committee recently recommended that it be lawful for a person to use not more than two dogs to trail wounded deer in additional counties where the department has determined that hunting deer with dogs is no longer widespread or problematic.  Department staff has identified 12 counties that meet the criteria.

Attachments – 1

  1. Exhibit A – Proposed Rule

Work Session Item No. 7
Exhibit A

TRAILING WOUNDED DEER WITH DOGS

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department (TPWD) proposes an amendment to §65.19, concerning Hunting Deer with Dogs. The proposed amendment would remove 12 counties from the applicability of the rule’s prohibition of the use of dogs in certain counties, the effect of which would be to make it lawful in those counties for a person to use not more than two dogs to trail a wounded deer.

         In 1990 the department promulgated rules prohibiting the use of dogs to trail deer in Angelina, Bowie, Camp, Fannin, Franklin, Hardin, Harris, Harrison, Houston, Hunt, Jasper, Jefferson, Lamar, Liberty, Montgomery, Morris, Nacogdoches, Newton, Orange, Panola, Polk, Red River, Rockwall, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Titus, Trinity, Tyler, Walker, Washington, and Wood counties. The rulemaking was necessary because the department determined that dogs were being used unlawfully to hunt deer, which was causing depletion of the resource and in the process denying others an equitable and reasonable privilege to hunt deer. The rulemaking was based on the department’s statutory duty to prevent the depletion of deer populations and to provide for the most equitable and reasonable privilege to hunt (Parks and Wildlife Code, §61.055).

         In 2000, Wildlife Division and Law Enforcement Division personnel determined that the practice of using dogs to hunt deer had declined to the point of being nonexistent in Bowie, Camp, Fannin, Franklin, Lamar, Morris, Red River, Rockwall, Titus, and Wood counties. In 2001, the department removed those counties from the list of counties where the use of dogs was prohibited to trail wounded deer. In a 2005 rulemaking the department also removed the prohibition in Hunt and Washington counties.

         After discussions with department biologists and law enforcement staff, the White-tailed Deer Advisory Committee recently recommended that it be lawful for a person to use not more than two dogs to trail wounded deer in additional counties where the department has determined that hunting deer with dogs is no longer widespread or problematic.  Department staff have identified 12 counties (Harris, Harrison, Houston, Jefferson, Liberty, Montgomery, Panola, Polk, Rusk, San Jacinto, Trinity, and Walker) that meet the criteria.

2. Fiscal Note.

         Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the protection of the state’s wildlife resources (deer) from depletion, and to provide for the most equitable and reasonable privilege for the public to hunt deer.

         (B) There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

         (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 rule as proposed will not impact local economies.

         (D) 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 rule.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

         The amendment is proposed under Parks and Wildlife Code, §61.052, which requires the commission to regulate the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in or from the places covered by that chapter; §61.055, which requires the commission to amend or revoke its proclamations to prevent depletion or waste and to provide to the people the most equitable and reasonable privilege to hunt game animals or game birds or catch aquatic animal life if the commission finds that there is a danger of depletion or waste; and 62.0065, which authorizes the Commission to regulate the use of dogs to trail wounded deer.

         The proposed amendment affects Parks and Wildlife Code, Chapters 61 and 62.

6. Text.

         §65.19. Hunting Deer With Dogs.

                 (a) For the purposes of this section:

                         (1) ’actual possession of a dog’ means the physical control of a dog;

                         (2) ’constructive possession of a dog’ means having the power and intention to have and control a dog but without direct control of the dog, the actual presence of physical restraint upon the dog, or the actual presence of the dog at exactly the same place as the person having the dog.

                 (b) It is unlawful to use a dog or dogs in hunting, pursuing, or taking deer in all counties.

                 (c) It is lawful to use not more than two dogs in trailing a wounded deer in all counties, except in Angelina, Hardin, [Harris, Harrison, Houston,] Jasper, [Jefferson, Liberty, Montgomery,] Nacogdoches, Newton, Orange, [Panola, Polk, Rusk,] Sabine, San Augustine, [San Jacinto,] Shelby, and[Trinity,] Tyler[, and Walker] counties, where dogs shall not be used to trail wounded deer.

                 (d) In Angelina, Hardin, [Harris, Harrison, Houston,] Jasper, [Jefferson, Liberty, Montgomery,] Nacogdoches, Newton, Orange, [Panola, Polk, Rusk,] Sabine, San Augustine, [San Jacinto,] Shelby, and[Trinity,] Tyler[, and Walker] counties, it is an offense for any person, during an open deer season, to be on property that the person does not own while:

                         (1) in possession of a shotgun and buckshot or a slug; and

                         (2) in actual or constructive possession of a dog or dogs.

                 (e) The penalties for a violation of this section are prescribed by Parks and Wildlife Code, §62.013.

         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

 


Work Session Item No. 8
Presenter: Ken Kurzawski

Work Session
Exotic Species Rule Amendments Regarding
Transport of Tilapia and Triploid Grass Carp
May 22, 2013

I.       Executive Summary: This item seeks permission to publish proposed amendments to rules governing the transport of harmful or potentially harmful exotic fishes, specifically Mozambique tilapia and triploid grass carp. The proposed amendments would:

  • allow the transport of live Mozambique tilapia or live triploid grass carp, provided the person transporting the tilapia or triploid grass carp has acquired an exotic species transport invoice from a person who possesses an exotic species permit;
  • reinforce the prohibition against removing live tilapia and triploid grass carp from these private locations; and
  • add the requirement that the destination address for the tilapia and triploid grass carp be added to the exotic species transport invoice.

II.     Discussion: Mozambique tilapia are popular as forage fish in private ponds and for use in private, non-commercial fish-growing facilities. Triploid grass carp are used as an alternative to chemical control of unwanted aquatic vegetation in ponds. The department has received requests to allow the transport of Mozambique tilapia and triploid grass carp from a permitted seller to a private pond or facility by the person who is acquiring the tilapia or grass carp. Under current rule, only a person who holds an exotic species permit may transport live Mozambique tilapia or triploid grass carp. The department has determined that since the rules already allow the possession of tilapia without a permit, there is no reason not to allow their transport under documented circumstances. Possession of triploid grass carp is covered under a permit. Therefore, the amendment would allow the transport of live triploid grass carp or Mozambique tilapia, provided the person transporting the grass carp or tilapia has acquired an exotic species transport invoice from a person who possesses an exotic species permit.

Attachments – 1

  1. Exhibit A – Proposed Rule Text

Work Session Item No. 8
Exhibit A

HARMFUL OR POTENTIALLY HARMFUL
FISH, SHELLFISH, AND AQUATIC PLANT

PROPOSED RULE TEXT

§57.113. Exceptions.

                 (a) – (f) (No change.)

                 (g) A person may transport Mozambique tilapia or triploid grass carp to a private pond or facility or possess Mozambique tilapia in a private pond or [private] facility subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice). Mozambique tilapia and triploid grass carp possessed in a private pond or facility may be removed from those premises only if gutted or beheaded.

§57.115. Transportation of Harmful or Potentially Harmful Exotic Species.

                 (a) Transport of live harmful or potentially harmful exotic species is prohibited except by:

                         (1) An aquaculturist in possession of a valid exotic species permit and an exotic species transport invoice;

                         (2) a commercial shipper acting for the permit holder in possession of an exotic species transport invoice; [or]

                         (3) persons holding harmful or potentially harmful exotic species pursuant to limitations of §57.113 of this title (relating to Exceptions); or

                         (4) persons transporting Mozambique tilapia or triploid grass carp to a private pond or facility subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice).

                 (b) (No change.)

§57.116. Exotic Species Transport Invoice.

                 (a) An exotic species transport invoice shall contain all the following information correctly stated and legibly written: invoice number; date of shipment; name, address, and phone number of the shipper; name, address, and phone number of the receiver and address of the destination of the exotic species, if different; aquaculture license number and exotic species permit number, if applicable; number and total weight of each harmful or potentially harmful exotic species; a check mark indicating interstate import, interstate export, or intrastate type of shipment. A completed invoice shall accompany each shipment of harmful or potentially harmful exotic species sold or transferred, and shall be sequentially numbered during the permit period; no invoice number shall be used more than once during any one permit period by the permittee.

                 (b) – (c) (No change.)

                 (d) Owners, or their agents, of private ponds or facilities stocked with Mozambique tilapia or triploid grass carp by an Exotic Species Permit holder shall retain a copy of the exotic species transport invoice for a period of one year after the stocking date or as long as the tilapia or triploid grass carp are in the water, whichever is longer.


Work Session Item No. 9
Presenter: Ted Hollingsworth

Work Session
Revised Environmental MOU with Texas Department of Transportation (TxDOT)
Request Permission to Publish Proposal to Adopt TxDOT MOU
May 22, 2013

I.       Executive Summary:  The Texas Department of Transportation (TxDOT) has published revisions to the Environmental Review Memorandum of Understanding (MOU) between TxDOT and Texas Parks and Wildlife Department (TPWD).

II.     Discussion:  Section 201.607 of the Transportation Code requires that TPWD and TxDOT adopt by rule an MOU regarding the review of public transportation projects for environmental impacts.  Under this MOU, TPWD staff review and comment on ways to reduce adverse impacts from a range of transportation projects, including road and highway projects and some airport projects.  The current MOU was adopted in 1998.

Staff of the two agencies has been working for years on changes to the MOU that would increase the efficiency of environmental review by focusing effort on projects with significant fish and wildlife impacts, while increasing the incorporation of TPWD comments into project citing and design, and improving project impact mitigation.  The proposed rule would address these goals by establishing thresholds below which projects would not be sent individually to TPWD for review, requiring the development of procedures for statewide tracking of adverse project impacts and project mitigation, and committing TxDOT funding to assist with project review, management of the Texas Natural Diversity Database, and with the optimization of compensatory mitigation for larger projects.  TxDOT published the draft rule in the Texas Register on February 15, 2013, and have made minor revisions based on public comment. TxDOT is scheduled to consider final adoption of the rule on May 30.  Staff anticipates adoption of the associated Programmatic Agreements by both agencies in May or June, 2013.

Attachments – 2

  1. Exhibit A – Proposed Preamble to MOU as Published by TxDOT
  2. Exhibit B – Proposed MOU as Published by TxDOT

Work Session Item No. 9
Exhibit A

Proposed Preamble

The Texas Department of Transportation (department) proposes the repeal of §2.21, Purpose, and §2.22, Memorandum of Understanding with the Texas Parks and Wildlife Department.  The department proposes the simultaneous replacement of the repealed sections with new Subchapter G, §§2.201-2.214, Memorandum of Understanding with the Texas Parks and Wildlife Department.

EXPLANATION OF PROPOSED REPEALS AND NEW SECTIONS

Transportation Code, §201.607 requires the department to adopt a memorandum of understanding (MOU) with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historic or archeological resources.  Transportation Code, §201.607 also requires the department to adopt the MOU and all revisions to it by rule, and to periodically evaluate and revise the MOU.  In order to meet the legislative intent and to ensure that natural resources are given full consideration in accomplishing the department’s activities, the department has evaluated its MOU with the Texas Parks and Wildlife Department (TPWD) adopted in 1999, and finds it necessary to repeal existing §§2.21 and 2.22 and simultaneously adopt new Subchapter G, §§2.201-2.214.

The proposed new MOU between TPWD and the department satisfies the statutory requirements for reviewing and revising MOUs with resource agencies.  It is intended to replace the existing MOU, which has been in effect since March 21, 1999, with an MOU that more effectively streamlines TPWD’s review of the department’s projects, and simultaneously better allows TPWD to focus on those projects most likely to affect natural resources.  The proposed MOU has several new provisions and procedures that were developed based on experience gained from numerous projects that the department has submitted and TPWD has reviewed since the 1999 MOU was executed.  It is also better organized than the existing MOU, with different subject areas broken into separate sections.  Additionally, the proposed MOU reflects changes made by the department’s recent revision of its environmental review rules, published in the March 9, 2012 issue of the Texas Register (37 TexReg 1727).

SECTION BY SECTION EXPLANATION OF PROPOSED MOU

Section 2.201 sets out the purpose of the MOU, and explains that it supersedes various other MOUs previously entered into by the department and TPWD.  Section 2.201 also requires the MOU to be updated within five years of its effective date, as required by Transportation Code, §201.607.

Section 2.202 sets forth the applicability of the MOU by identifying the types of transportation projects that must be evaluated under the MOU.  Maintenance projects for which a programmatic environmental review is conducted under 30 TAC §2.133 are not required to be evaluated under the MOU.

Section 2.203 contains definitions of various terms used in the MOU.

Section 2.204 sets parameters on the department’s use of the Texas Natural Diversity Database (TXNDD) maintained by TPWD, a database of information about listed and proposed threatened and endangered species and other features of Texas natural history.  The section also requires the department to report observations of certain species to TPWD using TXNDD reporting forms.

Section 2.205 sets forth procedures for determining whether the department is required to coordinate a given transportation project with TPWD.  It requires the department to perform a Tier I site assessment on each project to which the MOU applies as set forth in §2.202.  The department then compares the results of the Tier I site assessment to triggers listed in §2.206, and thresholds identified in a programmatic agreement developed under §2.213, to determine whether coordination is required.

Section 2.206 contains triggers for determining when coordination is required using the procedures identified in §2.205.  For example, coordination is required if a project will directly impact known isolated wetlands outside the existing department right-of-way.  Use of these triggers, and the thresholds identified in a programmatic agreement developed under §2.213, will allow TPWD to focus its resources on reviewing those projects most likely to adversely affect natural resources.

Section 2.207 explains the process for early coordination of a project between TPWD and the department.  It is the intention of the department and TPWD that early coordination, as opposed to administrated coordination under §2.208, will be the primary mechanism for coordination of projects between the agencies.  In conducting early coordination, the department provides project documentation to TPWD, and TPWD provides determinations and recommendations to the department.  The results of early coordination are then summarized in the project’s environmental review document.  The process for early coordination is less formal than the process for administrated coordination, explained in the following section.

Section 2.208 explains the process for administrated coordination, which must be conducted for projects subject to coordination under §2.205, but for which early coordination under §2.207 is not conducted.  Administrated coordination requires the department to submit to TPWD a coordination package consisting of a cover letter, a Tier II site assessment, and other studies or reports the department believes are relevant.  TPWD then has 45 days to comment on any aspect of the project it determines may have adverse impacts to fish and wildlife resources.  Within 90 days of making a decision related to a written comment made by TPWD, the department must provide TPWD with a written explanation of the department’s decision or other action.  Also, as with early coordination, the results of administrated coordination must be summarized in the project’s environmental review document.

Section 2.209 explains Tier II site assessments, which are the primary environmental reports prepared by the department and reviewed by TPWD during administrated coordination, and provides the minimum required elements of a Tier II site assessment.

Section 2.210 requires the department to communicate with TPWD when unforeseen impacts are identified during construction of a project.

Section 2.211 requires the department to maintain records of projects that are subject to the MOU, and to respond within 30 days to any request made by TPWD to review project records.

Section 2.212 allows TPWD to make site visits to department project sites.

Section 2.213 requires the department and TPWD to develop certain programmatic agreements addressing issues not covered in the MOU.  The section describes six specific programmatic agreements that must be developed by the department and TPWD.

Section 2.214 requires the department and TPWD to appoint an interagency MOU implementation team to fulfill various functions related to implementing the MOU, such as developing the programmatic agreements required by §2.213, preparing recommendations for the next update of the MOU, and developing metrics for tracking the effectiveness of the MOU.

FISCAL NOTE

James Bass, Chief Financial Officer, has determined that for each of the first five years in which the new subchapter as proposed is in effect, there will be fiscal implications for state government as a result of enforcing or administering the new subchapter.  New §2.213 requires the department and TPWD to develop a programmatic agreement concerning department-funded positions at TPWD.  The goal of this programmatic agreement will be to reduce the number of projects referred to TPWD for coordination by 50 percent, reduce average project review times, and increase the environmental value of project mitigation.  Reasonably assuming for the purpose of this analysis that this programmatic agreement would result in the department’s funding of two full-time employees at TPWD, this would require an expenditure of approximately $167,797 annually from the State Highway Fund.  This expenditure is expected to be offset by the benefit of more efficient and timely environmental review of the department’s projects by TPWD.  There are no anticipated fiscal implications for local governments as a result of enforcing or administering the new subchapter.  There are no economic costs for persons required to comply with the new subchapter.

Carlos Swonke has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the new subchapter.

PUBLIC BENEFIT AND COST

Mr. Swonke has also determined that for each year of the first five years in which the new subchapter is in effect, the public benefit anticipated as a result of enforcing or administering the new subchapter will be increased efficiency in completing the environmental review of the department’s projects, and more effective coordination with TPWD on the department’s projects.  There are no anticipated economic costs for persons required to comply with the sections as proposed.  There will be no adverse economic effect on small businesses.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

The department determined that this rulemaking relates to actions subject to the Texas Coastal Management Program (CMP) under the Coastal Coordination Act of 1991, as amended (Natural Resources Code, §§33.201 et seq.), and must be consistent with all applicable CMP policies, because it concerns the department’s environmental review of transportation projects.  The department reviewed this action for consistency with the CMP goals and policies under the rules promulgated by the Coastal Coordination Council, which remain in effect until superseded by rules of the General Land Office.  The department has determined that the action is consistent with applicable CMP goals and policies.

A CMP policy applicable to this rulemaking is that transportation projects shall comply with certain practices concerning the siting of a project to lessen the impacts on coastal natural resources (see 31 TAC §501.31).  The proposed rules concern the method by which to evaluate the environmental impacts of a transportation project, and do not dictate the siting of a project.  However, the purpose of the proposed rules is to establish procedures for identifying the impacts of transportation projects on certain resources, and for coordination of projects with the relevant state resource agency.  This provides an additional mechanism for avoiding, minimizing, or mitigating, where practicable, adverse effects of department projects on coastal natural resource areas that serve as habitat, on coastal preserves, and on threatened and endangered species.  For these reasons, the rulemaking action is consistent with the CMP goal of protecting, preserving, restoring, and enhancing the diversity, quality, quantity, functions, and values of coastal natural areas.

A copy of this rulemaking will be submitted to the General Land Office for its comments on the consistency of the proposed rulemaking with the CMP.  The department requests that the public also give comment on whether the proposed rulemaking is consistent with the CMP.

PUBLIC HEARING

Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed rules.  The public hearing will be held at 1:30 p.m. on March 7, 2013, in the Ric Williamson Hearing Room, First Floor, Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas and will be conducted in accordance with the procedures specified in 43 TAC §1.5.  Those desiring to make comments or presentations may register starting at 1:00 p.m.  Any interested persons may appear and offer comments, either orally or in writing; however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record.  While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content.  Organizations, associations, or groups are encouraged to present their commonly held views and identical or similar comments through a representative member when possible.  Comments on the proposed text should include appropriate citations to sections, subsections, paragraphs, etc. for proper reference.  Any suggestions or requests for alternative language or other revisions to the proposed text should be submitted in written form.  Presentations must remain pertinent to the issues being discussed.  A person may not assign a portion of his or her time to another speaker.  Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or Braille, are requested to contact Government and Public Affairs Division, 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-6086 at least five working days prior to the hearing so that appropriate services can be provided.

SUBMITTAL OF COMMENTS

Written comments on the proposed repeal of §§2.21 and 2.22 and simultaneous replacement of the repealed sections with new Subchapter G, §§2.201-2.214 may be submitted to Robin Carter, Office of General Counsel, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "TPWD MOU."  The deadline for receipt of comments is 5:00 p.m. on March 18, 2013.  In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed rules, or is an employee of the department.

STATUTORY AUTHORITY

The repeals and new sections are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.607(b), which requires the department to adopt memoranda of understanding with each agency that has responsibility for the protection of the natural environment or for the preservation of historical or archeological resources, and to adopt all revisions to these memoranda by rule.

CROSS REFERENCE TO STATUTE

Transportation Code, §201.607.


Work Session Item No. 9
Exhibit B

SUBCHAPTER G.  MEMORANDUM OF UNDERSTANDING WITH THE TEXAS PARKS AND WILDLIFE DEPARTMENT

§2.201.  Purpose.

     (a) Transportation Code, §201.607, requires the Texas Department of Transportation (TxDOT) to adopt a memorandum of understanding (MOU) with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historical or archeological resources, and requires TxDOT and each of the agencies to adopt the memoranda and all revisions by rule.  This subchapter contains the memorandum of understanding between TxDOT and the Texas Parks and Wildlife Department (TPWD) that implements that section.

     (b) This subchapter furthers the environmental policy of TxDOT to protect, preserve, and when possible, enhance the environment, and the responsibility of TPWD for protecting the state’s fish and wildlife resource.

     (c) This MOU supersedes the MOU that was adopted to be effective March 21, 1999; the Memoranda of Agreement for the Finalization of 1998 MOU Concerning Habitat Descriptions and Mitigation that was signed August 2, 2001; the MOU Regarding Mitigation Banking that was signed December 7, 2005; and the Memorandum of Agreement for Sharing and Maintaining Natural Diversity Database Information that was signed April 11, 2007.  Nothing in this subchapter supersedes, modifies, or nullifies any other agreement entered into by TxDOT and TPWD.

     (d) TxDOT and TPWD shall review and by rule shall update this MOU not later than the fifth anniversary of its effective date, as required by Transportation Code, §201.607.

§2.202.  Applicability.

     (a) Except as provided in subsection (b) of this section, this subchapter applies to:

       (1) a state transportation project or Federal Highway Administration (FHWA) transportation project conducted by the Texas Department of Transportation (TxDOT);

       (2) a state transportation project or FHWA transportation project of a private or public entity that is funded in whole or in part by TxDOT;

       (3) a state transportation project or FHWA transportation project of a private or public entity that requires Texas Transportation Commission or TxDOT approval;

       (4) a maintenance program for which a programmatic environmental review is conducted under §2.133 of this chapter (relating to Maintenance Projects and Programs); or

       (5) any other type of project coordinated at TxDOT’s request.

     (b) This subchapter does not apply to individual maintenance projects for which a programmatic environmental review is conducted under §2.133 of this chapter.

§2.203.  Definitions.  The following words and terms, when used in this subchapter, or in documents prepared by the Texas Department of Transportation (TxDOT) or Texas Parks and Wildlife Department (TPWD) pursuant to this subchapter, have the following meanings.

       (1) Coordination — Actions between TxDOT and TPWD that relate to and facilitate TPWD’s review of and comments on the potential environmental effects of a transportation project.  The goal of coordination is to minimize adverse impacts of transportation projects on the fish and wildlife resources of Texas while maximizing efficient use of each agency’s resources.

       (2) Best management practices (BMPs) — Actions taken to minimize the adverse effects of transportation projects on fish and wildlife resources.

       (3) Ecological Mapping Systems of Texas (EMST) — An on-going effort to map vegetation of Texas at high resolution using multi-spectral aerial imagery and intensive on-ground verification.

       (4) Environmental report — A report, form, checklist, or other documentation analyzing an environmental issue in the context of a specific transportation project or presenting a thorough summary of an environmental study conducted in support of an environmental review document, or demonstrating compliance with a specific environmental requirement.  The term does not include a permit or other approval outside the scope of the environmental review process.

       (5) Environmental review document — An environmental assessment, an environmental impact statement, a reevaluation, a supplemental environmental impact statement, or, for an FHWA transportation project, a document prepared to demonstrate that it qualifies as a categorical exclusion when FHWA requires a narrative document as opposed to a checklist.  An environmental review document includes any attached environmental reports.

       (6) Federal Highway Administration (FHWA) — The United States Department of Transportation Federal Highway Administration.

       (7) FHWA transportation project — A transportation project for which FHWA’s approval is required by law to comply with NEPA, FHWA is the lead federal agency, and FHWA agrees TxDOT may act as the joint lead agency under 23 Code of Federal Regulations §771.109.

       (8) Important remnant vegetation — A type of vegetation that is considered by TPWD to be rare, have local value, or to have substantially declined in recent times.  This includes vegetation communities listed in the TCAP as of special conservation concern, or as S3 or rarer, and communities listed as suitable habitat and within the range of any Species of Greatest Conservation Need (SGCN).  For the purposes of this MOU, in the event there is a range rank (e.g. S3S4) the lower rank should be used in determining the rarity of the community.

       (9) Mitigation — For the purpose of this MOU, the actions taken to reduce the adverse impacts to the natural environment that result directly from a transportation project.  The term includes actions taken to avoid, minimize, or to compensate for impacts.

       (10) NEPA — The National Environmental Policy Act, codified at 42 United States Code §§4321, et seq.

       (11) Plant community association — A plant community of definite floristic composition (dominant/diagnostic species), uniform habitat conditions, and uniform physiognomy.

       (12) Qualified biologist — A qualified biologist must have, at a minimum, a successful completion of a full 4-year course of study in an accredited college or university leading to a bachelor’s or higher degree with a major in biological sciences, natural resource management, wildlife science or management, ecology, zoology, botany, conservation biology, or a closely related field and have experience relevant to the species, habitat, or ecosystems that are being studied or described.

       (13) Range — The general area where a species would be expected to occur as listed by county on the TPWD website or where available, as shown in range maps provided in or referenced by the TCAP.

       (14) Right of way — Property acquired for the purpose of a transportation project.

       (15) Riparian vegetation — River- or creek-dependent habitats which rely on periodic flooding or flushing, sub-irrigated substrates, and other influences of the ephemeral or perennial rivers or creeks to which they are adjacent, including floodplains, wet woodlands, gallery riverine forests, oxbows, swamps, and vegetated islands.

       (16) Species of Greatest Conservation Need (SGCN) — Species of plants or animals that are identified in the TCAP.

       (17) State threatened or endangered species — A species of wildlife listed as threatened in 31 TAC §65.175 (relating to Threatened Species) or as endangered in 31 TAC §65.176 (relating to Endangered Species), or a plant species listed as threatened or endangered in 31 TAC §69.8 (relating to Endangered and Threatened Plants).

       (18) State transportation project — A transportation project that is not a major federal action for the purpose of NEPA.

       (19) Suitable habitats — Habitats that provide a species or community with the specific physical location and conditions needed to survive and persist.  These may include terrestrial and aquatic vegetation communities; a particular watershed, waterbody or stream segment; water quantity or quality thresholds; particular geologic substrates (such as limestone, granite, and sands) or formations (such as karst and caves); or a species host.

       (20) Texas Conservation Action Plan (TCAP) — The natural resources conservation plan for the State of Texas.  The TCAP identifies fish and wildlife resources of the state, including SGCN and their habitats, outlines activities to improve SGCN status and prevent federal threatened or endangered species listings where possible, and articulates conservation needs.  The TCAP is stewarded by TPWD and implemented across the state by TPWD and conservation partners.  The TCAP provides definitions for ecological systems, plant community associations, and habitats which are important for SGCN.

       (21) Tier I site assessment — A preliminary site assessment to determine impacts and coordination requirements with TPWD.

       (22) Tier II site assessment — An environmental report that demonstrates quantitative (acres) and qualitative (high, medium, or low) determination of ecological systems and plant community associations affected by a transportation project.  Tier II site assessments require an on-site verification by a qualified biologist to the extent access to new right of way is available.

       (23) TPWD — Texas Parks and Wildlife Department.

       (24) TxDOT — Texas Department of Transportation.

       (25) Transportation enhancement — An activity that is listed under 23 United States Code §101(a)(35), relates to a transportation project, and is eligible for federal funding under 23 United States Code §133.

       (26) Transportation project — A project to construct, maintain, or improve a highway, rest area, toll facility, aviation facility, public transportation facility, rail facility, ferry, or ferry landing.  A transportation enhancement is also a transportation project.

       (27) Wetland — An area (including a swamp, marsh, bog, prairie pothole, or similar area) having a predominance of hydric soils that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, the growth and regeneration of hydrophytic vegetation.

§2.204.  Texas Natural Diversity Database (TXNDD).

     (a) TPWD maintains the TXNDD.  The TXNDD contains information on listed and proposed threatened and endangered species, both state and federal, SGCN, important remnant native vegetation, and other features of Texas natural history.  TPWD will continue to provide TXNDD information to TxDOT.

     (b) This MOU authorizes certain limited use and distribution of this information, and specifies security requirements.  The mechanisms established for transferring electronic TXNDD information from TPWD to TxDOT will be used to transfer electronic information relevant to this subchapter, such as TCAP data and EMST data.

     (c) The TXNDD is the property of TPWD.

     (d) Except as provided in subsection (e) of this section, TxDOT will not release the TXNDD or any portion of it to outside parties unless TxDOT receives a request under the Texas Public Information Act for the TXNDD or information contained therein, in which case TxDOT will notify TPWD of the request.

     (e) Texas Public Information Act requests for copies of approved environmental review documents and environmental reports that contain information from the TXNDD do not require TPWD notification.

     (f) TxDOT will conduct training on access and use of the TXNDD as it relates to transportation projects.  The training will be developed jointly by TxDOT and TPWD.

     (g) TxDOT will provide completed TXNDD reporting forms for observations of tracked SGCN occurrences within TxDOT project areas.

     (h) TXNDD reporting requirements shall be incorporated into the site assessment protocol.

§2.205.  Determining Need for TPWD Coordination.

     (a) TxDOT will perform a Tier I site assessment for all projects subject to this subchapter.

       (1) A Tier I site assessment is used to determine impacts and the need for coordination with TPWD.  The Tier I site assessment will define the type and amount of habitat impacted using information from TCAP, EMST, TXNDD, county lists of Rare and Protected Species of Texas maintained by TPWD; county lists of endangered, threatened, and candidate species maintained by the U.S. Fish and Wildlife Service; and the most current aerial photography available.  The results of a Tier 1 assessment will be recorded in the Texas ECOS project file.

       (2) TxDOT will compare the results of a Tier I site assessment to the triggers in §2.206 of this subchapter (relating to Coordination Triggers) and thresholds found in the Threshold Table Programmatic Agreement developed under §2.213 of this subchapter (relating to Programmatic Agreements) to determine the need for coordination with TPWD.

       (3) Tier I site assessments may require a field visit by a TxDOT qualified biologist to resolve the level of impact and, therefore, the requirement to coordinate a project with TPWD.

     (b) TxDOT will coordinate with TPWD under §2.207 of this subchapter (relating to Early Project Coordination) or §2.208 of this subchapter (relating to Administrated Project Coordination) concerning a proposed transportation project if a trigger under §2.206 is met or a threshold found in the Threshold Table Programmatic Agreement developed under §2.213 is exceeded, and one of the following conditions is also met:

       (1) the project has not previously completed coordination;

       (2) the project has been previously reviewed by TPWD but is the subject of a reevaluation or revision and the scope of the reevaluation or revision relates to an issue on which TPWD commented; or

       (3) the project has been previously reviewed by TPWD but is the subject of a reevaluation or revision and the change proposed in the reevaluation or revision, considered as a stand-alone transportation project, is a substantial change to the project from the previous coordination.

     (c) For the purposes of subsection (b) of this section, a change is substantial if it is equal to or greater than at least one of the factors listed in §2.206 of this subchapter, or the proposed new impacts would be greater than had previously been coordinated or now exceed a threshold found in the Threshold Table Programmatic Agreement developed under §2.213 of this subchapter.  These changes can include, but are not limited to, increased impacts to fish and wildlife resources or rare vegetation series identified in the TCAP, changes in the status of such resources since the previous coordination, or the identification of a new TXNDD record or records of rare or protected species or managed areas that may be impacted and that are different than those identified when coordination was previously conducted.

     (d) No coordination under this MOU is required for a project that is not described by subsection (b) of this section.

§2.206.  Coordination Triggers.  The triggers described in this section shall be used to determine whether coordination is required as provided by §2.205 of this subchapter (relating to Determining Need for TPWD Coordination).

       (1) The project is within the range of a state threatened or endangered species or SGCN as identified by the TPWD County list of Rare and Protected Species, and there is suitable habitat, unless BMPs as defined in this MOU are implemented as provided by a programmatic agreement developed under §2.213 of this subchapter (relating to Programmatic Agreements).

       (2) The project may adversely impact important remnant vegetation based on the judgment of a qualified biologist or as mapped in the TXNDD.

       (3) The project requires a nationwide permit with pre-construction notification or an individual permit, issued by the United States Army Corps of Engineers.

       (4) The project includes in the TxDOT right of way or conservation, construction, or drainage easement more than 200 linear feet of stream channel for each single and complete crossing of one or more of the following that is not already channelized or otherwise maintained:

         (A) channel realignment; or

         (B) stream bed or stream bank excavation, scraping, clearing, or other permanent disturbance.

       (5) The project contains known isolated wetlands outside existing TxDOT right of way that will be directly impacted by the project.

       (6) The project may impact 0.10 acre of riparian vegetation based on the judgment of a qualified biologist or as mapped in the EMST.

       (7) The project disturbs habitat in an area equal to or greater than the area of disturbance indicated in the Threshold Table Programmatic Agreement developed under §2.213 of this subchapter.

§2.207.  Early Project Coordination.

     (a) It is the intention of TxDOT and TPWD that coordination during early project development will be the primary mechanism for coordination of projects between the agencies.

     (b) To request early project coordination, TxDOT will provide available and relevant project information to TPWD.  TxDOT and TPWD will work cooperatively to identify any additional documentation appropriate for review and comment on the project.

     (c) TPWD will notify TxDOT when documentation is sufficient to conduct early project coordination.  Upon completion of the review, TPWD will provide determinations and recommendations to TxDOT.  Upon TPWD submission of determinations and recommendations and TxDOT written response in accordance with Parks and Wildlife Code, §12.0011(c), early project coordination is complete.

     (d) TPWD determinations and recommendations must be issued by the TPWD Wildlife Habitat Assessment Program, and TxDOT written responses must be issued by TxDOT’s Environmental Affairs Division.  All other communications during early project coordination may be made by other appropriate organizational units of the respective agencies or other entities approved by the respective agencies.  TxDOT’s Environmental Affairs Division and the TPWD Wildlife Habitat Assessment Program are each responsible for identifying its respective agency’s rules and requirements.

     (e) TxDOT may make project modifications and request additional TPWD comment.  TPWD may review final project documents and final environmental review documents.

     (f) Projects for which early project coordination is completed do not require additional coordination unless project modifications warrant re-coordination under §2.205(b)(2) or (3) of this subchapter (relating to Determining Need for TPWD Coordination).

     (g) The TxDOT department delegate for the project will ensure that the results of any coordination with TPWD, including efforts made by TxDOT during project planning and design to avoid and minimize impacts to natural resources, shall be summarized in the project’s environmental review document.

§2.208.  Administrated Project Coordination.

     (a) Administrated project coordination will be conducted for projects subject to coordination under this MOU, but for which early project coordination is not completed.

     (b) Administrated project coordination will occur between TxDOT’s Environmental Affairs Division and the TPWD Wildlife Habitat Assessment Program, unless those two units agree in writing to allow other appropriate organizational units of the respective agencies or other entities approved by the respective agencies to conduct the coordination.  TxDOT’s Environmental Affairs Division and the TPWD Wildlife Habitat Assessment Program are each responsible for identifying its respective agency’s rules and requirements.

     (c) To initiate administrated project coordination, TxDOT will submit the coordination package to TPWD for review and comment.  The coordination package consists of a cover letter that requests review pursuant to this MOU, the Tier II site assessment, and any other environmental studies or reports that TxDOT believes are relevant to TPWD’s review of the project.  This coordination package is prepared and submitted to TPWD prior to the environmental document being produced.

     (d) Texas ECOS is a web-based relational database for electronic communication and tracking of environmental coordination.  TPWD will be provided access with user privileges to Texas ECOS with the intention of making information exchange paperless and real time.  Until TPWD has provided written agreement that Texas ECOS is adequate for TPWD coordination review, all administrated coordination will be conducted in writing and transmitted on agency letterhead.

     (e) TPWD will comment on any aspect of the project it determines may have adverse impacts to fish and wildlife resources.

     (f) For written communications, TPWD shall have 45 days from the date TxDOT receives written confirmation that TPWD has received the coordination package for its review, or five business days after the date of transmittal of the coordination package, whichever occurs first, to provide its comments on the project.  Once Texas ECOS is accepted as the means for communicating and tracking project coordination, the 45-day clock will start on the first business day after notification to TPWD that the coordination information is available in ECOS.

     (g) TPWD may request additional information during the 45-day review period, in which case TxDOT will provide the requested information if the information is available or can be reasonably obtained.  If the requested information cannot be provided, then TxDOT will inform TPWD and explain why in writing.

     (h) TxDOT will consider and implement when mutually agreeable, the comments that are submitted by TPWD within the 45-day review period.  TxDOT will provide TPWD with a written explanation of TxDOT’s decisions or other action within 90 days of making a decision related to the comment.

     (i) If TPWD submits comments after the end of the 45-day review period, TxDOT will consider the comments in making decisions on the project to the extent practicable, and provide a written response in the same manner indicated in subsection (e) of this section.

     (j) The TxDOT department delegate for the project will ensure that the results of any coordination with TPWD, including efforts made by TxDOT during project planning and design to avoid and minimize impacts to natural resources, shall be summarized in the project’s environmental review document.

§2.209.  Tier II Site Assessment.

     (a) Tier II site assessments are the basis for evaluating project impacts and are the primary environmental report used for administrated coordination under this subchapter.  A programmatic agreement will be developed and approved to provide implementation requirements for site assessments.

     (b) A Tier II site assessment will be prepared for those projects that are subject to coordination under this MOU and for which early project coordination is not completed.

     (c) A Tier II site assessment must include a review of the TCAP and documentation of the direct impacts from the project to ecosystems, plant community associations, preferred habitat for SGCN that are within range, easements, and land set aside for environmental mitigation.  Additionally, a TxDOT qualified biologist will provide field verification to confirm potential direct and indirect impacts, assess the quality of impacted fish and wildlife resources, and determine the areal extent of ecological systems and plant community associations for the entire project area, and whether any or all of the project may result in adverse impacts to fish and wildlife resources.

     (d) At a minimum, Tier II site assessments will include:

       (1) a description of the project, including the natural setting in which the project occurs, the existing conditions, and the proposed action;

       (2) a description of the quantity and quality of any habitat that occurs for species on the county list within or abutting the right of way; and

       (3) any proposed steps to be taken to mitigate potential adverse impacts on resources.

     (e) Protocols for review of TXNDD information and an interpretation of the data will be included in the site assessment programmatic agreement.

     (f) It is understood that a lack of access to the new right of way may limit the amount of information available for the habitat description.  Existing data shall be used to provide a best estimate in these circumstances.

§2.210.  Communication during Construction.

     (a) TxDOT will communicate with TPWD when unforeseen impacts on species that are included on TPWD county lists or their habitat are identified during construction of a project.

     (b) TPWD and TxDOT will conduct site visits at the request of either party and upon scheduling agreement of both parties.

§2.211.  Project Tracking.  TxDOT will maintain records of all projects subject to this subchapter.  TPWD may request information electronically from TxDOT until Texas ECOS is operational at TPWD offices.  The information request should specify time ranges and geographic areas for the records.  TxDOT will respond within 30 days of the request.

§2.212.  Site Access.  TPWD may make site visits to any TxDOT construction or maintenance site.  TPWD must provide TxDOT timely notification of its intention to conduct an on-site visit to an ongoing construction site and must comply with all safety requirements identified in TxDOT’s response or as instructed by the on-site responsible person.

§2.213.  Programmatic Agreements.

     (a) The Interagency MOU Implementation Team created under §2.214 of this subchapter (relating to Interagency MOU Implementation Team) will develop programmatic agreements to address issues not specifically identified in this subchapter.  Programmatic agreements must be approved by the Executive Director of each agency prior to their effective date.

     (b) At a minimum, the Interagency MOU Implementation Team will develop programmatic agreements described in this subsection.

       (1) A programmatic agreement detailing the information required to be included in a Tier II site assessment will be developed.  This programmatic agreement will set forth the Tier II site assessment requirements in greater detail than that provided in §2.209 of this subchapter (relating to Tier II Site Assessment).

       (2) A threshold table programmatic agreement will be developed to establish thresholds to be used in making the determination required by §2.205 of this subchapter (relating to Determining Need for TPWD Coordination).

       (3) A programmatic agreement concerning TxDOT-funded positions at TPWD will be developed.  The goal of this programmatic agreement will be to reduce the number of projects referred to TPWD for coordination by 50 percent, reduce average project review times, and increase the environmental value of project mitigation.

       (4) A programmatic agreement for updating and supporting the TXNDD to be a best in class resource will be developed.

       (5) A programmatic agreement concerning conservation projects will be developed.

       (6) A programmatic agreement concerning BMPs will be developed.  The interagency team will develop new BMPs for adoption by TxDOT and TPWD to reduce the number of projects referred to TPWD as a result of meeting triggers for state threatened or listed species, and other triggers as appropriate, and to further mitigate the adverse impacts of transportation projects.

     (c) Programmatic agreements may be changed at any time by the written concurrence of the Executive Directors of TxDOT and TPWD.

§2.214.  Interagency MOU Implementation Team.

     (a) The Executive Directors of TxDOT and TPWD or their delegates shall mutually appoint an interagency team which will be formed within two months of the effective date of this MOU and will meet, at a minimum, quarterly for the first two years of implementation of this MOU, and on a semi-annual basis thereafter, unless a majority of the team deems it necessary to meet more frequently.

     (b) The interagency team will prepare recommendations for the next update of this MOU.

     (c) The interagency team will develop metrics for tracking the effectiveness of this MOU and will provide an annual report to the leadership of TxDOT and TPWD.  This report will include, at a minimum, the actual number of projects coordinated, the reduction in the number of projects coordinated as a result of changes to the environmental review process effectuated by this MOU, an analysis of the time to complete project coordination, the adverse impacts of transportation projects by habitat type, the conservation of habitat resulting from mitigation, evaluation of the value of any TxDOT-funded positions at TPWD, and recommendations regarding continuation of those positions.

     (d) The interagency team will evaluate and make recommendations to improve the usefulness and applicability of TPWD comments.

     (e) The interagency team will facilitate reviews and comments on agency guidance and protocols developed to implement this MOU.

     (f) The interagency team shall review the early project coordination process periodically and make recommendations for improving process efficiency and usefulness.  The interagency team will be responsible for attempting to resolve any conflict between TPWD and TxDOT that results from the implementation of this subchapter before elevating to agency management.

SUBCHAPTER B.  MEMORANDA OF UNDERSTANDING WITH

NATURAL RESOURCE AGENCIES

§2.21.  Purpose.  Transportation Code, §201.607, requires the Texas Department of Transportation (TxDOT) to adopt a memorandum of understanding with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historical or archeological resources, and requires the department and each of the agencies to adopt the memoranda and all revisions by rule.  This subchapter contains memoranda of understanding adopted by TxDOT to implement that section.

§2.22.  Memorandum of Understanding with the Texas Parks and Wildlife Department.

     (a) Purpose.

       (1) It is the policy of the Texas Department of Transportation (TxDOT) to:

         (A) investigate fully the environmental impacts of TxDOT transportation projects, coordinate these projects with applicable state and federal agencies, and reflect these investigations and coordinations in the environmental documentation for each project;

         (B) base project decisions on a balanced consideration of the need for a safe, efficient, economical, and environmentally sound transportation system;

         (C) receive input from the public through the public involvement process; and

         (D) utilize a systematic interdisciplinary approach as an essential part of the development process for transportation projects.

       (2) In order to pursue this policy, TxDOT and the Texas Parks and Wildlife Department (TPWD) have agreed to develop this Memorandum of Understanding (MOU) that will supersede the MOU which became effective on October 15, 1992.

       (3) Transportation Code, §201.607, directs TxDOT to adopt memoranda of understanding with appropriate environmental resource agencies, including TPWD.

       (4) The rules for coordination of state-assisted transportation projects found in §§2.40-2.51, of this title (relating to Environmental Review and Public Involvement for Transportation Projects), underline the need for and importance of comprehensive environmental coordination for all transportation projects.

       (5) It is the purpose of this MOU to provide a formal mechanism by which the TPWD may review TxDOT transportation projects, including those that have the potential to affect natural resources within facilities owned or managed by TPWD.  This review will promote the mutually beneficial sharing of information between TxDOT and TPWD, which will assist TxDOT in making environmentally sound decisions.

     (b) Definitions.  The following words and terms, when used in this section shall have the following meanings, unless the context clearly indicates otherwise.

       (1) Construction — Activities which involve the building of transportation facilities on a new location, or the expansion, rehabilitation, or reconstruction of an existing facility.

       (2) Early project development — The phase of project development that includes, but is not limited to, project planning, field surveys, database searches, in-house coordination, initial resource agency coordination, and scoping, if necessary prior to selection of alternatives.

       (3) Environmental document — A decision-making document which incorporates the results of environmental studies, coordination and consultation efforts, and engineering elements.  Types of documents include categorical exclusions, environmental assessments, and environmental impact statements.

       (4) Habitat — Areas of intrinsic biological resource value, the disturbance of which would not require: a U.S. Army Corps of Engineers permit; a U.S. Coast Guard permit; coordination under the Endangered Species Act, Fish and Wildlife Coordination Act, or the Migratory Bird Treaty Act.

       (5) Maintenance — Activities which involve the repair or preservation of an existing facility to prevent that facility’s degradation to an unsafe or irreparable state, or which involve the treatment of an existing facility or its environs to meet acceptable standards of operations or aesthetic quality.  Such activities generally do not require the acquisition of additional right of way.

       (6) Maintenance programs — A collection of maintenance activities performed singularly or collectively on the state highway system.  The following categories have been established as maintenance programs: bridge maintenance; customer service; debris and spills; drainage; ferry maintenance; maintenance enhancement; pavement maintenance; roadside appurtenances; traffic pavement markings; and vegetation management.

       (7) Memorandum of Understanding (MOU) — A formal document which outlines the relationship between agencies or parties, including the responsibilities and jurisdiction of each party.

       (8) Mitigation — A means of addressing adverse impacts to the natural environment including, in general order of preference, avoidance, minimization, and compensation, the commitment for which will be included in the environmental document wherever the need is mutually agreed upon by TxDOT and TPWD, including detailed plans where practicable.

       (9) National Environmental Policy Act of 1969 (NEPA) — The basic national charter for protection of the environment which establishes policy, sets goals, and provides means for carrying out the policies.  NEPA is binding upon federal agencies, including the Federal Highway Administration, and is usually followed as an environmental guideline by state and local agencies.  In this document, NEPA includes the Act itself, its subsequent amendments, and implementing regulations.

       (10) Project development — The planning process of a transportation project which includes early project development, environmental studies including the development of the appropriate environmental documentation, public involvement, engineering design, and right of way acquisition.

       (11) Public involvement — An important, ongoing phase of the project planning process which encourages and solicits public input and seeks to provide the public the opportunity to become fully informed regarding project development.

       (12) Right of way — The land provided for a transportation facility, for example, the roadway itself (including shoulders), and areas between the roadway and adjacent properties (including drainage facilities).

       (13) Transportation projects — All surface transportation projects designed, constructed, and maintained by TxDOT, excluding toll projects.

     (c) Responsibilities.

       (1) Texas Department of Transportation.  The responsibilities of TxDOT pertain primarily to:

         (A) planning and designing safe, efficient, effective, and environmentally sound transportation facilities, while avoiding, minimizing, or compensating for anticipated environmental impacts to the fullest extent practicable;

         (B) timely and efficient construction of transportation facilities in a manner consistent with approved plans or agreements that TxDOT has executed regarding the protection of the natural environment to provide safe, efficient, and environmentally sound transportation facilities for the traveling public;

         (C) the ongoing maintenance of these facilities to provide safe, efficient, and environmentally sound transportation facilities for the traveling public, and dedication to the protection of natural resources within the jurisdiction of TxDOT; and

         (D) as directed by House Bill 1359, 74th Legislature, 1995 which amended House Bill 9, 72nd Legislature, 1991, the construction, repair, and maintenance of roads in and adjacent to state parks, state fish hatcheries, state wildlife management areas, and support facilities for parks, fish hatcheries, and wildlife management areas. (These items have been implemented under a separate memorandum of agreement between TxDOT and TPWD dated September 1, 1998.)

       (2) Texas Parks and Wildlife Department.

         (A) The responsibilities of TPWD relate primarily to its functions as a natural resource agency, including its resource protection functions, designated by Parks and Wildlife Code, Chapters 67, 68, 88, and §12.001 and §12.0011, and include:

           (i) acting as the state agency with primary responsibility to protect the state’s fish and wildlife resources;

           (ii) providing recommendations that will promote fish and wildlife resources to local, state, and federal agencies that approve, permit, license, or construct developmental projects;

           (iii) providing information on fish and wildlife resources to any local, state, or federal agencies or private organizations that make decisions affecting those resources; and

           (iv) maintaining a listing of endangered and threatened species and providing these listings to local, state, and federal agencies that make decisions affecting those species.

         (B) TPWD will identify and appoint appropriate staff to coordinate with TxDOT staff on transportation projects and to review project-specific information and documentation.

     (d) Provisions.  For the purpose of this MOU, the activities of TxDOT are divided into the following categories.

       (1) Early project development.  TxDOT may coordinate the potential impacts with TPWD Wildlife Habitat Assessment Program staff or the appropriate selected regional staff.  TPWD will provide a list of regional director contacts for district use.  TPWD staff may provide information concerning the occurrence of unique or important wildlife travel or activity areas, sensitive habitats, important vegetative communities or ecosystems, suitability of habitat for threatened or endangered species, or other natural resource information that could identify potential undesirable impacts and associated planning constraints before completion of a project design, and selection of a preferred project alternative.  The level of information provided by TPWD will be consistent with protocol established to protect confidentiality of site-specific data collected on private lands pursuant to Parks and Wildlife Code, §12.0251 and §12.103.  TxDOT will provide project-specific information, as available, to TPWD regional contacts.  Following appropriate early coordination that may involve TPWD regional staff, TxDOT may solicit written concurrence from TPWD of a proposed project’s potential impacts and mitigation during early project development.  However, initially, written concurrence must be coordinated through the Wildlife Habitat Assessment Program of TPWD.  Eventually, projects successfully coordinated with TPWD regional staff during early project development may not require additional coordination with TPWD as required under paragraph (2) of this subsection, as determined by mutual agreement between TPWD and TxDOT.

       (2) Project development.  Upon completion of TxDOT’s preliminary project review, a copy of the environmental documentation shall be furnished to TPWD for all projects meeting the criteria for coordination unless previously documented as shown in paragraph (1) of this subsection.  Coordination will be conducted for projects that:

         (A) involve more than 1.0 acre (0.4 hectares) of new right of way within floodplains or creek drainages in rural or undeveloped urban areas;

         (B) require channel modifications to streams, rivers, or water bodies;

         (C) involve a channel realignment involving the creation of new drainage ways or other excavation impacting more than 1.0 acre (0.4 hectares) of mature woody vegetation;

         (D) require any excavation (scraping, clearing, or other surface disturbance) of the existing channel outside of TxDOT’s existing right of way or of the channel inside TxDOT’s existing right of way which is not routinely maintained and exhibits native vegetation;

         (E) might affect mature woody vegetation, dense mature brush, including any significant remnant native vegetation (e.g., undisturbed native prairie or bottomland hardwood, etc.);

         (F) are within the range and in suitable habitat of any state or federally listed threatened or endangered species;

         (G) involve mitigation plans, or otherwise involve proposals to redress project impacts on fish, wildlife, or plant resources;

         (H) have previous environmental documentation but where three years have passed without major action(s) (i.e., final design, acquisition of right of way, approval of plans, specifications, or estimates) and the project has not been reviewed by TPWD, but meets the above listed criteria; or

         (I) have previous environmental documentation but where three years have passed with major action(s) and the project may or may not have been reviewed by TPWD, but meets the above listed criteria.

       (3) Elements of documentation.  The level of environmental documentation prepared and provided to TPWD will be of sufficient detail to allow determination of the kinds of vegetation communities that will be affected and areal extent of vegetation impacted.  The biological and natural resource information contained in the environmental documentation will be interpreted and verified by a qualified biologist prior to coordination with TPWD.  When available, environmental documentation may be supported by aerial photography or on-ground photography taken by a hand-held camera.

       (4) Interagency team.  An interagency team consisting of staff from both TxDOT and TPWD will be established within 60 days from the signature date of this MOU.

         (A) This team will:

           (i) develop procedures and methodologies for providing habitat characterizations and impact descriptions, and develop supporting information for the environmental documentation; and

           (ii) establish criteria for the appropriateness, planning, and implementation of compensatory mitigation when TxDOT has identified a need, or when TxDOT and TPWD mutually have identified the need, for compensation (Because mitigation planning or implementation may be completed after the contract for the project is awarded, no project shall be delayed pending mitigation.).

         (B) In addition, TxDOT has the final decision on the implementation of a given mitigation plan.  However, if TxDOT determines that mitigation is not feasible, an explanation of why it will not be undertaken shall be provided to TPWD.

       (5) Review period.  TPWD shall have a period of 45 days from the date of the transmittal letter to review project environmental documentation.  Any comments submitted by TPWD shall be considered by TxDOT in making project decisions.  If additional information is requested by TPWD it shall be provided by TxDOT, if such information is available or reasonably can be obtained.  In such case, TPWD shall have an additional 30 days from the date of TxDOT’s second transmittal letter that will accompany the additional information forwarded to TPWD to review documentation.

       (6) Final disposition of projects.  TxDOT reserves the right to determine the final disposition of proposed transportation projects, based on a considered analysis of TPWD comments and practical alternatives as they relate to TxDOT’s responsibilities as described in this document.

       (7) Ongoing coordination.  When necessary, construction activities coordination between TxDOT and TPWD shall continue through the construction phase to provide for the protection of natural resources. Mitigation proposals agreed upon by TxDOT and TPWD relating to construction activities will be included in the project construction plans.

       (8) Unforeseen protected species impacts.  In the event that unforeseen impacts to endangered or threatened species or their habitat under TPWD jurisdiction are identified after construction has commenced, TxDOT will coordinate with TPWD regarding such resources.

       (9) Maintenance program review.  TPWD will be provided the opportunity to review TxDOT maintenance programs prior to implementation of each program or plan. TPWD will be provided an opportunity to comment and make suggested revisions to the  programs, and TxDOT will give consideration to these suggested revisions.  If TxDOT does not fully implement the revisions suggested by TPWD, TxDOT will provide a written explanation to TPWD.

       (10) TPWD document commentary. Comments received by TxDOT from TPWD in the coordination process shall, when applicable, include:

         (A) guidance as to what species may be present within the project area that may require special considerations in terms of those species and their habitat;

         (B) suggested mitigation measures; and

         (C) recommendations for protection of natural resources under TPWD jurisdiction, as defined in Parks and Wildlife Code, §12.001 and §12.0011.

     (e) Special provisions relating to information exchange.

       (1) TxDOT and TPWD shall cooperate in the maintenance and enhancement of a computer-based information system detailing the distribution of species listed as threatened or endangered (including state and federal listings), or those which are of concern and are being considered for listing.

       (2) TxDOT and TPWD shall cooperate to develop a protocol addressing the transfer of the computer-based information on locations of protected species and/or habitats of concern, the use and distribution of this information, and the security of the information. The level of information provided by TPWD will be consistent with protocol established to protect confidentiality of site specific data collected on private lands pursuant to Parks and Wildlife Code, §12.0251 and §12.103.

     (f) Review of MOU.  This MOU shall be reviewed and updated, at a minimum, every fifth year beginning January 1, 2002, and TxDOT and TPWD by rule shall adopt the MOU and all revisions to the MOU.


Work Session Item No. 10
Presenter: Nancy Herron
Robert Ramirez

Work Session
Hunter Education Course Requirements
May 22, 2013

I.       Executive Summary:  This item seeks permission to publish proposed amendments to alter the requirements of the hunter education course and certification requirements.

II.     Discussion:  Parks and Wildlife Code §62.014 (h) authorizes the Commission to adopt rules to implement the hunter education program.  Under current TAC, §51.80 (a) (1), the Hunter Education Course shall consist of at least 10 hours of instruction under any combination of home study, classroom, laboratory, field exercises and live-firing exercise.  Under TAC, §51.80 (b) (5), to be certified, a student must attend 10 hours of training, be evaluated by an instructor and attain certain scores on an examination prescribed by the department.

The proposed amendment would change the required length of the course, include an online-only course option, remove the requirement for an evaluation by an instructor for those taking an online-only course.


Work Session Item No. 11
Presenter: Corky Kuhlmann

Work Session
Land Acquisition — Yoakum, Cochran and Terry Counties
Yoakum Dunes Preserve
May 22, 2013

See Action Item No 8 for detailed agenda item.


Work Session Item No. 12
Presenter: Ted Hollingsworth

Work Session
Land Transfer – Cherokee County
Remnant Tracts to the City of Rusk
May 22, 2013

See Action Item No. 6 for detailed agenda item.


Work Session Item No. 13
Presenter: Ross Melinchuk

Work Session
Update on Surface Use Negotiations – Dimmit and La Salle Counties
Oil and Gas Development at the Chaparral Wildlife Management Area
May 22, 2013

I.       Executive Summary:  Staff will brief the TPW Commission on the status of negotiations to protect the surface of the Chaparral Wildlife Management Area during proposed oil and gas exploration and recovery activities.

II.     Discussion:  The 15,200-acre Chaparral Wildlife Management Area (WMA) sits above the Eagle Ford shale geological formation, which is proving to be one of the richest oil and gas producing formations in North America.  “Three-D” seismic surveys, horizontal drilling techniques and hydraulic fracturing, or “fracking” have made the exploitation of the Eagle Ford shale technically and economically productive, and extensive efforts are underway to tap the oil and gas resources of this formation throughout its range in south Texas.

The current holders of exploration and recovery rights under the WMA include Talisman Energy Inc., and Anadarko Petroleum Corporation.  Oil and gas exploration and recovery operations are expected to permanently alter the WMA.  Habitat for four state listed species, fish and wildlife values, thirty-plus years of intensive conservation research, public hunting and a variety of other recreational uses will be adversely affected.

TPWD staff continues to work with Talisman and Anadarko to draft Surface Use Agreements for exploration and recovery operations consistent with the TPWD’s mission to minimize adverse impacts to biological and recreational values.

Attachments – 3

  1. Exhibit A – Location Map
  2. Exhibit B – Vicinity Map
  3. Exhibit C – Site Map

Work Session Item No. 13
Exhibit A

Location of Chaparral WMA in LaSalle and Dimmit Counties

Location of Chaparral WMA in LaSalle and Dimmit Counties


Work Session Item No. 13
Exhibit B

Vicinity Map for Chaparral WMA 55 miles north of Laredo

Vicinity Map for Chaparral WMA 55 miles north of Laredo


Work Session Item No. 13
Exhibit C

Site Map for the 15,200-Acre Chaparral WMA

Site Map for the 15,200-Acre Chaparral WMA