Commission Agenda Item No. 5
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 current rule requires persons approaching or leaving public fresh water in 47 counties to drain all bilges, live wells, and other similar receptacles and systems holding or capable of holding water, with exceptions. The proposed amendment would extend the applicability of the current rule to all public fresh water in the state.

         The current rule is intended to slow or prevent the spread of the zebra mussel (Dreissena polymorpha), an invasive exotic species that has become a major nuisance in North America. 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 impacts to aquatic ecosystems, invasive exotic species also threaten agriculture, ranching, forestry, and industry.

         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.

         Zebra mussels were first detected in Texas in 2009, when the department confirmed their presence in Lake Texoma. In 2012, the department utilized its authority to regulate the possession of exotic aquatic species and promulgated rules intended to prevent zebra mussels from spreading. The rule at that time affected only a section of the Red River including Lake Texoma and Lake Lavon.  Later in 2012, parts of the Elm Fork of the Trinity River, including Lakes Ray Roberts and Lewisville, were added. In June 2013, zebra mussels were confirmed in Lake Bridgeport, a reservoir in Wise and Jack counties. The department responded by adding additional segments of the West Fork of the Trinity River, which added Lakes Eagle Mountain and Worth in addition to Bridgeport to the rule. In September 2013, the department confirmed the presence of zebra mussels on Lake Belton in Bell and Coryell counties and added lakes Belton and Stillhouse Hollow (and the Leon and Lampasas rivers above those lakes) to the applicability of the rule.

         Meanwhile, in 2013, the 83rd Texas Legislature (Regular Session) enacted House Bill (H.B.) 1241, which authorizes the Texas Parks and Wildlife 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. In a rulemaking adopted in November 2013 (38 TexReg 8912), the department replaced the previous rule that affected specific segments of river systems with a new approach that implemented water-draining requirements on all public water bodies within 17 counties (Collin, Cooke, Dallas, Denton, Fannin, Grayson, Hood, Jack, Kaufman, Montague, Palo Pinto, Parker, Rockwall, Stephens, Tarrant, Wise, and Young).

         Following the confirmation of zebra mussels in Lake Belton, staff determined that a more proactive application of the regulation was 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 and is therefore the most likely avenue by which zebra mussels would be spread from the basins where they are already known to exist. Therefore, in a rulemaking approved in January of 2014, the department added 30 more counties along the IH 35 corridor to the applicability of the current rule (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).

         At the January 27, 2014, meeting of the Parks and Wildlife Commission, the commission determined that given the rapid movement of zebra mussels from the Oklahoma border to central Texas within a three-year period, the current “detect-and-respond” strategy should be replaced with a statewide rule that requires vessels approaching or leaving public fresh water (and receptacles aboard those vessels) to be drained. Therefore, the proposed rule would extend the applicability of the rule to all public fresh water, while retaining the exceptions currently in effect. Under the provisions of Parks and Wildlife Code, §66.0073, the department cannot require the draining of water from vessels approaching or leaving salt water.

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.

6. Rule Text.

         §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;

                                                   (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;

                                                   (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 fishing activities are restricted to a single public water body on any given day;

                                                           (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 fresh water in Texas[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