Commission Agenda Item No. 3
Presenter: Ken Kurzawski

Action
Exotic Species Rule Amendments regarding Draining Water from Vessels
and Portable Containers
January 23, 2014

I.       Executive Summary:  This item seeks adoption of the proposed amendments to rules governing the draining of water from vessels on public water.  The proposed new rules would:

II.     Discussion:  Under Parks and Wildlife Code, Chapter 66, the Commission is required to promulgate rules regarding the importation, possession, sale, or placement into public waters of exotic harmful or potentially harmful fish or shellfish. Under the provisions of H.B. 1241, (2013), which amended the Parks and Wildlife Code by adding §66.0073, the Commission is authorized to adopt rules requiring a person leaving or approaching public water to drain from a vessel or portable container on board the vessel any water that has been collected from or has come in contact with public water.

The proposed rule (located at Exhibit A) is intended primarily to control the spread of zebra mussels (Dreissena polymorpha).  The zebra mussel is a small, non-native mussel originally found in Eurasia.  It has spread throughout Europe and the U.S. and is considered to be a major environmental and industrial threat.  Zebra mussels are particularly difficult to control because they have a free-floating, microscopic larval stage called a veliger.  Any water collected from waterbodies where zebra mussels are present could contain veligers; thus, water transported from waterbodies with known zebra mussel populations is a vector for the spread of zebra mussels.

At the Work Session meeting on November 7, 2013, staff was authorized to publish the proposed rule in the Texas Register for public comment.  The proposed rules appeared in the December 20, 2013 issue of the Texas Register (38 TexReg 9207-9209).  A summary of public comment on the proposed rules will be presented at the time of the meeting.

III.    Recommendation:  Staff recommends that the Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to §57.1001 concerning Statewide Recreational and Commercial Fishing Proclamations, with changes as necessary to the proposed text as published in the December 20, 2013 issue of the Texas Register (38 TexReg 9207-9209).”

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 3
Exhibit A

DRAINING OF WATER FROM VESSELS

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §57.1001, concerning Draining of Water from Vessels Leaving or Approaching Public Fresh Water. The proposed amendment would add 30 counties to the list of counties in §57.1001(3) where restrictions on the transportation of water are in place to control the spread of zebra mussels (Dreissena polymorpha).

         Invasive exotic species are non-indigenous species that have been accidentally or intentionally released into an ecosystem. In the worst cases, invasive species, because they are not checked by natural competition or predators, compete directly with, prey upon, or hybridize with native species, alter habitats and food webs, threaten rare species, and generally wreak ecological havoc. Besides the obvious negative ecological impacts, invasive exotic species also threaten agriculture, ranching, forestry, and industry.

         One such invasive species is the zebra mussel.  The zebra mussel is a small, non-native mussel originally found in Eurasia. It has spread throughout Europe, where it is considered to be a major environmental and industrial menace. The animal appeared in North America in the late 1980s and within ten years had colonized in all five Great Lakes and the Mississippi, Tennessee, Hudson, and Ohio river basins. Since then, they have spread to additional lakes and river systems. Once zebra mussels become established in a water body, they are impossible to eradicate with the technology available today. In 2012 the only regulatory tool available to the department was Parks and Wildlife Code, §66.007, which prohibits the possession of exotic harmful or potentially harmful fish or shellfish except as authorized by permit or rule. Since zebra mussels are a species that cannot be possessed without a permit, it is technically unlawful to possess even the microscopic larval stage of the organism (called a veliger), which can be present virtually everywhere in an infested water body and thus in live wells, bilges, and other receptacles as a result of immersion in an infected water body. The department at that time promulgated a stopgap regulation that provided a defense to prosecution for unlawful possession of a prohibited species provided all live wells, bilges, and other receptacles or systems capable of retaining or holding water were drained prior to the use of a public roadway.

         In 2013 the 83rd Texas Legislature (Regular Session) enacted House Bill 1241, which amended Parks and Wildlife Code by adding new §66.0073 to authorize the Texas Parks and Wildlife Commission (the commission) to adopt rules requiring a person leaving or approaching public water to drain from a vessel or portable container on board the vessel any water that has been collected from or has come in contact with public water. To facilitate compliance and enforcement with measures to stop the spread of zebra mussels, the department in November of 2013 adopted rules under the authority of §66.0073 that require water to be drained from boats and receptacles in certain counties, rather than continuing to rely on a regulation that is predicated on proving the possession of an organism that cannot be seen with the unaided eye. Therefore, §57.1001 has replaced §57.972(k).

         The department had previously confirmed the presence of zebra mussels in Lake Texoma and the upper reaches of the Trinity River basin, including several major lakes.  Therefore, the counties affected by the current regulation adopted in November border Lake Texoma, the immediate downstream reach of the Red River, and all counties within the watershed of the upper Trinity River.

         The proposed amendment to §57.1001 would add Archer, Bastrop, Bell, Bosque, Burnet, Clay, Comal, Comanche, Coryell, Eastland, Ellis, Erath, Falls, Fayette, Freestone, Hamilton, Hays, Henderson (west of State Highway 19), Hill, Johnson, Leon, Limestone, Llano, McLennan, Navarro, Robertson, Somervell, Travis, Wichita, and Williamson counties to the list of 17 counties where the regulation is in effect (Collin, Cooke, Dallas, Denton, Fannin, Grayson, Hood, Jack, Kaufman, Montague, Palo Pinto, Parker, Rockwall, Stephens, Tarrant, Wise, and Young).

         In September 2013, the department confirmed the presence of zebra mussels in Lake Belton (Bell County) and believes that Stillhouse Hollow Lake (also in Bell County), which is only five miles away, is at imminent risk of becoming infested. The department also has determined that a proactive application of the regulation is necessary because the Interstate Highway 35 corridor, which traverses the basins of the Trinity, Brazos, Colorado, and Guadalupe rivers, facilitates relatively easy movement of vessels by large numbers of boaters and anglers.  As a result, movement of vessels via the Interstate Highway 35 corridor is the most likely avenue by which zebra mussels will spread from the basins where they are already known to exist. Therefore, the proposed amendment would add counties along the IH 35 corridor and the rivers that cross it.

         House Bill 1241 requires the commission to consider the effects of rules on boaters, anglers, and local interests while maintaining the ability to prevent the spread of harmful or potentially harmful exotic fish, shellfish, and aquatic plants. Therefore, the proposed rule also would create a partial exception for persons participating in fishing tournaments held on water bodies within the counties affected by current rule and the proposed rule but with off-site weigh-in stations. Because weigh-in stations for some fishing tournaments are at sites  not located on the water body where the tournament is taking place, the department considers that so long as a tournament is restricted to a single water body, that all water other than water in a live well is drained as required by the rule, that documentation is possessed by tournament participants identifying the locations of the fishing tournament and weigh-in, and that the water is directly transported to a weigh-in station before being drained or properly disposed of,  the likelihood of the transfer of exotic species is acceptably low. Therefore the proposed rule establishes those requirements for purposes of allowing transport of water for purposes of fishing tournament weigh-in activities at an off-site location; however, the tournament must be restricted to a single water body. The department has determined that allowing transfer of water from multiple water bodies presents biological and enforcement issues that are logistically difficult to resolve to a level of acceptable risk to ecosystems and habitats.

         On September 25, 2013, the department filed an emergency rule to address the discovery of zebra mussels in Lake Belton. The emergency rule added Lake Belton and Stillhouse Hollow to the applicability of existing rules to control the spread of zebra mussels. The proposed amendment would supplant the emergency rule on a permanent basis.

2. Fiscal Note.

         Ken Kurzawski, Inland Fisheries Division Program Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of public waters from the injurious environmental and economic effects of invasive exotic species.

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

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

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

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

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Ken Kurzawski, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4591 (e-mail: ken.kurzawski@tpwd.texas.gov).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §66.0073, which authorizes the commission to adopt rules requiring a person leaving or approaching public water to drain from a vessel or portable container on board the vessel any water that has been collected from or has come in contact with public water.

         The proposed rule affects Parks and Wildlife Code, Chapter 66.

         §57.1001. Draining of Water from Vessels Leaving or Approaching Public Fresh Water. For the purposes of this section, “vessel” has the meaning assigned by Parks and Wildlife Code, §31.003, and “boat ramp” means a boat ramp, launch area, or any other access point that can be used to access public water, and includes parking areas, parking overflow areas, and any other area in the immediate vicinity of the ramp, launch, or access point where a vehicle, trailer, or vessel may be parked while waiting to launch or retrieve a vessel.

                 (1) General Provisions. Except as provided in paragraph (2) of this section, no person may use any public roadway other than a boat ramp to transport a vessel to or from a public water body in a county listed in paragraph (3) of this section unless all bilges, live wells, and other similar receptacles and systems holding or capable of holding water on board the vessel as a result of immersion in or transfer from the public water body have been drained.

                 (2) Exceptions.

                         (A) The provisions of paragraph (1) of this section do not apply to:

                                  (i) a person travelling on a public roadway via the most direct route to another access point located on the same body of water, provided the beginning and ending of the travel occur within a single 24-hour period;

                                  (ii) water contained in marine sanitary systems; [or]

                                  (iii) a person in possession of a receptacle containing water and live bait purchased from a commercial bait dealer, provided:

                                          (I) the person also possesses a dated receipt, bill of sale, or other written evidence that identifies the name and commercial location of the dealer; and

                                          (II) the live bait, if it has come into contact with public water to which the provisions of paragraph (3) of this section apply, is used only on the water body from which the public water was obtained; [and]

                                  (iv) government employees or persons under contract to a governmental entity in the performance of official duties that involve the use of a vessel in an emergency response to a threat to human health or safety, or property; or

                                  (v) a person who is a participant in a fishing tournament (as defined by Parks and Wildlife Code, §66.023), provided:

                                           (I) the tournament activities are restricted to a single public water body;

                                           (II) the weigh-in site is not located on the body of water on which the tournament is held;

                                           (III) all water other than water in a live well has been drained from the vessel as required by this section;

                                           (IV) the live well is being transported by the most direct route to an official weigh-in location designated by the tournament;

                                          (V) the water in the live well is drained or properly disposed of before the vessel leaves the weigh-in location; and

                                          (VI) the person in possession of the water in the live well also possesses documentation provided by a fishing tournament representative that bears the participant’s name, the date, water body name, tournament name, location and time of the weigh-in, and the name and phone number of a tournament. representative.

                         (B) A government employee or persons under contract to a governmental entity may remove water for purposes of testing or analysis from a water body listed in paragraph (3) of this section; however, the water must be in closed, portable container and all bilges, live wells, motors, and other similar receptacles and systems holding or capable of holding water on board the vessel as a result of immersion in or transfer from the public water body must be drained.

         (3) This section applies to all public water in Archer, Bastrop, Bell, Bosque, Burnet, Clay, Collin, Comal, Comanche, Cooke, Coryell, Dallas, Denton, Eastland, Ellis, Erath, Falls, Fannin, Fayette, Freestone, Grayson, Hamilton, Hays, Henderson (west of State Highway 19), Hill, Hood, Jack, Johnson, Kaufman, Leon, Limestone, Llano, McLennan, Montague, Navarro, Palo Pinto, Parker, Robertson, Rockwall, Somervell, Stephens, Tarrant, Travis, Wichita, Williamson, Wise, and Young counties.

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

            Issued in Austin, Texas on


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