Texas Parks and Wildlife Commission
Regulations Committee

Jan. 26, 2005

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744

BE IT REMEMBERED, that heretofore on the 26th day of January, 2005, there came to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission, in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters Complex, to wit:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION:

• Joseph B.C. Fitzsimons, San Antonio, Texas, Chairman
• Alvin L. Henry, Houston, Texas, Vice-Chairman
• J. Robert Brown, El Paso, Texas
• Ned S. Holmes, Houston, Texas
• Peter M. Holt, San Antonio, Texas (Absent)
• Philip Montgomery, Dallas, Texas
• John D. Parker, Lufkin, Texas
• Donato D. Ramos, Laredo, Texas
• Mark E. Watson, Jr., San Antonio, Texas

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

• Robert L. Cook, Executive Director, and other personnel of the Texas Parks and Wildlife Department

P R O C E E D I N G S

COMMISSIONER FITZSIMONS: The Conservation Committee is in recess, and we will then convene the Regulations Committee. First order of business, approval of the Committee minutes, which have already been distributed. Is there a motion for approval?

COMMISSIONER WATSON: So moved.

COMMISSIONER HOLMES: Second.

COMMISSIONER FITZSIMONS: Moved by Commissioner Watson. Second by Commissioner Holmes. All in favor, please say aye.

(A chorus of ayes.)

COMMISSIONER FITZSIMONS: Any opposed?

(No response.)

COMMISSIONER FITZSIMONS: Hearing none, the motion carries.

Item one, the Chairman's Charges. Mr. Cook?

MR. COOK: Thank you, Mr. Chairman. I have three or four items I am going to report to you on. The National Academy of Science review of our in-stream flow methodology, which is a very important part of our science review process, and a very important part of our water, our involvement in the water solutions for the future.

That review is in final revision by the Academy. We should have the final by about the end of February. Significant findings being as follows: one, the methodologies and process that the Texas Parks and Wildlife Department Water Board and TCEQ proposed to assess the in-stream flow requirements for Texas rivers is scientifically sound and represent the state of the art for this complex area of applied science.

Now that is a lot of words that basically says we are doing good science. Our survey methods, our methods of monitoring in-stream flow are good; state of the art, which is a real important message to get back from the National Academy of Science. The report does provide some suggestions on how to enhance our efforts in assuring studies are appropriate and adaptable to the diversity of Texas.

Which, it goes without saying, there is that incredible diversity across the state, and one size is not going to fit all, so we are going to have to modify it and adjust it. And we understand that and agree with that. But in general, that report came back favorable. We did have us and the other agencies involved, we did have some issues.

The Academy got off into some policy areas which they had been asked to not get off into, but they did. And so we asked them to remove that section from the report. We weren't requesting their opinion on policy. The science review of our Coastal and Inland Fisheries Division, a draft of that report has been prepared by the American Fisheries Society review team, and was submitted to us at the end of November.

Staff from both divisions will coordinate in preparing a review of the draft, and submit comments to the American Fisheries Society for inclusion in the final draft, due January 31. Our wildlife science review, the Wildlife Management Institute team which was hired by TPWD to complete the science review of Wildlife and State Parks Division submitted a preliminary report to the Agency on November 30.

Wildlife Division staff met last week to address issues identified within the report. A final report will be submitted to TPWD no later than the end of this month, and the Wildlife Management Institute is scheduled to provide a final science review briefing to TPWD executive office and division directors on February 8. So those processes are going along. In general, they look good. Our science is good.

We have got some adjustments to make, and we do not back up from that, and we'll be doing so as we can, and as we can afford to. The White-tailed Deer Advisory Committee has met seven times since the passage of the Resolution 256 with the latest meeting taking place in September of '04, and the next scheduled meeting to occur next week.

In 2004, the White-tailed Deer Advisory Committee submitted their report on its findings to the Senate Committee on Natural Resources, and the Chairman of the House Committee on State and Cultural Recreational Resources as required by the bill, by the resolution. And we provided that report to you folks.

The Committee continues to address topics such as CWD testing, Chronic Wasting Disease testing, and Triple-T permit program, deer harvest regulations and other issues. So, I think that committee is serving the purpose as it intended originally, and as was assigned by the legislature. I have here today our public hearing schedule.

In the past, there has been some concern about the timing that that information got out when and where, exactly what time. Exactly what is the location. So in response to that, this schedule is available to anyone in the audience today. All of the writers that are here, we'll be glad to provide that to you. And it will go out in our news release statewide later this week.

But we thought it was important to be pro-active there, and get this agenda put together. Get the sites picked. And the first hearing starts on, the first hearings are held on March 9. So we have got a good time frame lead on that, and the last hearing is on March 27.

COMMISSIONER HENRY: May I?

MR. COOK: Yes, sir.

COMMISSIONER HENRY: In just looking at the list, I couldn't help but notice that none of the hearings are held in any of the larger metropolitan areas. And I know we have a whole lot of hunters coming from there? Is there anything in particular about this?

MR. COOK: Well, it is interesting, and that is a good question. And we have, I mean, I have been to a number of them. For instance, some time ago we have controversial issues, and anywhere in the immediate area, I recall going to San Antonio on some occasions and having two people show up in San Antonio. It is interesting, you know. And we never know sometimes what is going to scare folks up.

COMMISSIONER HENRY: I just noticed that the closest one to Houston, for example, is Dickinson, which is quite a few miles.

MR. COOK: I don't have the answer to it. You know. We tried to hold them where we think we'll get the best attendance.

COMMISSIONER HENRY: Okay.

MR. COOK: And we continue to. The public hearing process is a difficult one, and it is certainly by itself not adequate in getting the message out. You get a lot of feedback in other matters. But that is a fact.

COMMISSIONER FITZSIMONS: It is a good point. I think it is something to keep in mind. Like Bob says, I have been to a couple of those in San Antonio, where B

MR. COOK: I recall the last one that we did in Houston, all of the questions were about state parks. It had nothing to do with regulations that we were there to talk about.

COMMISSIONER FITZSIMONS: Well, maybe that tells us something. We ought to have the park meetings. Commissioner Montgomery?

COMMISSIONER MONTGOMERY: Bob, I want to compliment you and the team for continuing the scientific review. It is very important that the Commission is behind it, and it just gives us confidence though that we laid the foundation right. Could you circulate the National Science piece and the Wildlife Management review that is going on when those are done? I would like to read them.

MR. COOK: Absolutely.

COMMISSIONER MONTGOMERY: Okay. Thank you.

COMMISSIONER FITZSIMONS: All right. Thank you, Bob. All right, item two on our agenda for regulations, Chapter 57 Fisheries proposed changes. Robin Riechers.

MR. RIECHERS: Mr. Chairman and Commissioners, my name is Robin Riechers. I am with the Coastal Fisheries Division. I am here to present to you today the rule review regarding Chapter 57, Fisheries. As you are aware, the fisheries section or fisheries rule is quite a broad set of rules under several subchapters, and of course, the rule review requires us statutorily to review these rules every four years and to determine if the necessity for the rule still exists.

In addition to that, obviously, we have taken that opportunity to make any changes that we see needed to be made as well. In the rule review process, or after the rule review process, staff basically is recommending that we adopt without any changes subchapters C, D, F, H, I, and J. And we do have what we will call clean up items or minor changes in subchapters A, B, E, G, K and L. And I will go over those now.

I apologize to fit this all on one slide. It got a little small. But this is Subchapter A: Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants. The first correction that we would like to make before you is basically a broadening of the applicability in the oysters and shrimp. Which species or which families this applies to. We have actually added three genus names to the shrimp species, adding those to the harmful or potentially harmful list. And we also have broadened the language in regard to oysters.

Throughout this chapter, we have referred to TNRCC still, and obviously as a clean up item, we are going to change that name, correct that agency name and refer to it as TCEQ or the Texas Commission on Environmental Quality. In addition to that, we are adding water spinach to the permitted list. Basically allowing this species to be grown under a permit now.

This will basically, hopefully allow us to track even better the propagation of that in controlled environments. We also in regards to mariculture facilities or aquiculture facilities, we are applying of notification of discharge 14 days prior to discharge instead of 72 hours. This is an industry supported option as well. Basically, it will allow us to go in there and do our required testing easier, and in fact, industry supports that as well. So that they are as on short a time frame also.

And in this section, we are repealing the fee section. In our previous review of Chapter 53, all those fees had been moved to Chapter 53, and so this is just redundant of that at this time. We will repeal that section. Under Subchapter B, Mussels and Clams, we are going to repeat the definitions of prohibited and restricted areas from the Department of State Health Services rules. We refer to those, their definitions throughout our rules. And this basically now will put it in one place, where if someone is looking at our code, they can actually go find the definitions in those rules as well.

Again, same as in Subchapter A, in the permits to sell non-game fish taken from public freshwater, we are going to repeal that permit fee section there as well, because it has also been moved to Chapter 53. Under Subchapter G, in the marking of vehicles, what we are doing here is basically clarifying the intent of the original rule.

At this point in time, the way it is worded, if someone is carrying other aquatic products, they don't have to have the fish labeling on the outside of the truck that you see sometimes when you are going down the road. The intent of that was, if they are carrying any sort of aquatic product, they would have that labeling. And we are just adjusting that language to ensure that all people are in compliance there, and the intent is clear.

Under scientific areas, Subchapter K, we are extending the Redfish Bay description. It currently expires in 2005, and we are proposing to extend it to 2010. In addition to that, as we looked at that description, we actually are clarifying the coordinates we had. We were off a little bit in our coordinates. We had some slivers of water that were right up against the land, and now through better G.P.S. technology, we basically can clarify that at this point.

And then lastly, under the aquatic vegetation management again, the same thing is in Subchapter A. We are correcting the name where we had been referring to TNRCC. We will be referring to it as the Texas Commission on Environmental Quality. With that, that concludes my presentation and I would be happy to answer any questions.

COMMISSIONER FITZSIMONS: Any questions for Robin?

(No response.)

COMMISSIONER FITZSIMONS: Robin, thanks very much. If there is no other question or discussion, without objection, I will authorize the staff to publish this item in the Texas Register for the required public comment period. Item three, public lands proclamation amendments. Mike Berger.

MR. BERGER: Good morning Mr. Chairman, Commissioners. I am Mike Berger, the Deputy Director of the Wildlife Division. And I am here this morning to talk about some recommended amendments to the public lands proclamation. The first of these removes a reference to Caddo Lake State Park and the Bryan Beach Unit of Peach Point Wildlife Management Area. The Caddo Lake State Park has always been previously referred to as Caddo Lake State Park and WMA, and in the past, only the WMA section has ever been hunted. So we would just remove the reference in this section to the state park.

And also, the Bryan Beach unit of Peach Point is no longer owned by the Department. It was transferred to the City of Freeport. So it is no longer appropriate for it to be in that section.

Section 65.191 proposed some definition changes and additions. We proposed to change the definition of ATV because the current definition would allow inappropriate motor vehicles such as farm machinery, lawn mowers, treaded or track vehicles, construction equipment and things like that to be used on wildlife management areas. So we would want to replace the current definition with the definition of All Terrain Vehicles that is used in the Transportation Code. And that definition is clearer and more straightforward.

And we would also add a definition for motor vehicle, again, as defined in the Transportation Code, to make it consistent with that Code. And we would add another definition for off-road vehicle, which would include ATVs, utility vehicles and means an inclusive term that would encompass all vehicles that could be used for off-road purposes on our public hunting lands. We would also add a definition of camping. The term is currently not defined, and a definition is needed in order to clarify exactly what we mean by that term, as it applies to public use of our WMAs and public hunting lands.

We would add a definition of recreational use to mean any activity other than hunting and fishing. And we would replace non-consumptive use with recreational use in that context. Also, I don't have on the slide here, but we would change the definition of a limited use permit to remove language that prohibits the use of that permit to take wildlife resources. Because we in another section here plan to allow that permit to be used for fishing on wildlife management areas.

In the next section, Access Permit Required, and Fees. As I just mentioned, we would allow people to enter wildlife management areas and public hunting lands to fish using a limited public use permit. Again, we would also remove Caddo Lake State Park and the Bryan Beach unit of Peach Point from the reference in this section.

COMMISSIONER FITZSIMONS: That doesn't have any impact on the public hunting permit you have on endorsement there on your license on WMAs?

MR. BERGER: No. We still have the annual public hunting permit, which allows the full range of public uses. In these amendments here, we would first prohibit camping on any given unit of public hunting lands for more than 14 consecutive days, or more than 21 days in any 30 day period. And this is necessary in order to ensure that recreational opportunity is equitably distributed to all persons.

We would also prohibit any activity not specifically authorized by the order of the executive director or the regulation of the Commission. And this is in order to be sure that there aren't unanticipated situations or instances that could arise that would allow an inappropriate or detrimental use to our wildlife management areas.

And then finally, to add a requirement or to change a requirement regarding our disabled users of our public lands. Currently, we are requiring that they have a note from their doctor that verifies that they are handicapped. And we would propose to change that to a requirement that they have a disabled persons identification placard or license plate displayed. Because in order to acquire one of those, you have to have already had the doctors letter to acquire that permit. That concludes our suggestions for this. And I will be happy to answer any questions.

COMMISSIONER MONTGOMERY: Quick question. I want to compliment you on allowing the fishing. I think it is great to have the multiple use. The intent of the change in camping definition, is that also to increase usage for recreational sports?

MR. BERGER: People are using our wildlife management areas and public hunting lands for camping at present. In some cases, there are a few abuses where people have set up nearly a permanent residence in our areas.

So to have a definition of what camping is, and then too, in the other section to restrict it to 14 days or 21 days in one period. It is just to be sure that no one abuses that privilege. And with approval, we would recommend, we will publish this in the Texas Register for public comment.

COMMISSIONER FITZSIMONS: Any other questions?

COMMISSIONER MONTGOMERY: Can I just make a motion?

COMMISSIONER FITZSIMONS: I authorize the staff to publish this item in the Texas Register for the required public comment period.

MR. BERGER: Thank you.

COMMISSIONER FITZSIMONS: Thank you, Mike. Next up, well we have got Mike, Robin and Ken for the item four, 2005-2006 Statewide Hunting and Fishing Proclamation. Ken, are you going to lead off?

MR. KURZAWSKI: Yes. Thank you, Chairman. Good morning, Commissioners. My name is Ken Kurzawski of the Inland Fisheries Division and today I will be presenting our proposed regulation changes for Freshwater Fishing. These changes and the ones in Coastal and Wildlife will be the changes in regulations that we will be taking to public hearings that we mentioned earlier. First change that we are proposing is for Lake Nazworthy in Tom Green County, near San Angelo. And that is to change the red drum limits.

We currently have a 20-inch minimum length limit, and a daily bag of three fish on that reservoir. These are the limits that we have established on the reservoirs that we're stocking inland with red drum. There is six others.

And those limits were put on to allow these fish to get up to a quality size and also to distribute the harvest of these fish among as many anglers as possible. We are stocking these reservoirs on a what we call a Quick Grow and Take basis. And there is a limited number of fish and we just want to when we do stock those fish, we want as many anglers to be able to take part of them as possible. Our proposal would be to drop those length and bag limits.

Our goal there is to allow increased harvest of red drum in this particular reservoir. Unfortunately, one of the requirements of red drum to survive in inland waters is to have some heated waters. There was a power plant on Lake Nazworthy. That power plant is no longer operational and we are losing that warm water discharge. And there is some potential there for mortality of the fish that are in the reservoir if water temperatures would drop low enough, so what we are proposing to do here with this change is to allow anglers to take as many and utilize as many of those fish as possible.

We have ceased stocking in that reservoir, because of the power plant no longer being operational. And we are just hoping that anglers will be able to catch and harvest as many of these as possible before a possible winter kill. The next change is also in the San Angelo area, right in San Angelo, on the North and South Concho Rivers.

The current regulation is there, for channel cat and blue catfish. We have no minimum length, and a five fish daily bag, we would have a restriction that angling is by pole and line only. These sections of river are under our community fishing lake program, where we are trying to get people in urban areas, give them some access to some fishing, we are doing some stocking there of catfish, and we are just trying to make some incentives there for fishing in those areas.

We have had some problems with people knowing exactly where these river sections started and ended and were proposing to redefine those boundaries in those areas. And our proposed changes there, were going to specifically note on the South Concho River, above Lone Wolf Dam, that will change to the statewide regulations.

This particular section of South Concho has mostly private access, and it is not one of the areas we have been using for some of the events we have been holding in the fishing events in the San Angelo area. That area that we have been using is on the North Concho, from O.C. Fisher Dam to Bell Street Dam and a small section of the South Concho River.

And that section, we want to maintain those no length limits for catfishing and gear restrictions. And we are hoping this by more closely, more easily defining these, that people understand those better and on those sections that we weren't using for events that will allow some opportunity for increased harvest and also year use.

Final regulation of proposed change we have is on the Toledo Bend Reservoir. We currently have an exception there for spotted bass. They are under a twelve inch minimum length limit. In 2002, we changed spotted bass and Guadalupe bass limits statewide to no length limit, because most of these fish are usually say a small size, and we did maintain a bag limit on them.

What we are proposing to do on Toledo Bend is to change that, remove that exemption, change it back to the Texas statewide limit which is no minimum. And these are results of ongoing discussions we had with the Louisiana Department, and they are going to enact similar changes on their side of Toledo Bend. So our goal there is to standardize our regulations on Toledo Bend with Louisiana, and then by doing that, we'll also have them standardized with our existing statewide regulations.

Those are all the changes we are proposing. If you have any questions, I would be happy to try and answer those.

COMMISSIONER FITZSIMONS: Anything for Ken?

(No response.)

COMMISSIONER FITZSIMONS: Thank you, Ken. Next up, Robin.

MR. RIECHERS: Again, for the record, my name is Robin Riechers of the Coastal Fisheries Division, and I am here to present to you the Coastal Fisheries proposals for the Statewide Hunting and Fishing Proclamation. As you may recall at the November meeting, we basically brought to you the scope and issue of harvest of live mollusk and other intertidal species.

The type of species I am referring to here are hermit crabs, periwinkles, hermit crabs who make use of these shells, periwinkles and in your lower left hand corner is the lightning whelk, which is the State Shell of Texas. Again, as we discussed at the November meeting, these species, many of them have life history characteristics that make them susceptible to over-harvest or the possibility of over-harvest.

And while we don't know a lot about them, we do know that we want to protect them for their component of how they contribute to the ecological system that we have out there. After review of these scoping issues, we basically are bringing forward to you two proposals today. The first of which would be a seasonal closure. The closure would be from November 1 to April 30, and it would be a closed area associated with the live shell-bearing mollusk, their shells, starfish or sea urchins.

And it is basically in an area down there in the South Padre Island area. And I'll show you the map of this area in just a second here. Basically, that map as it show there, it is the hatched line, and it starts at the end of the North Jetty at the Brazos Santiago Pass. It runs the width of that pass, back to the in-shore side or the base side of South Padre Island, and then out a thousand yards from mean high tide up to Marisel Drive there.

Basically, it is encompassing pretty near a thousand acres, best as we can tell there. Of note on this, the dates were chosen basically, the November 1 to April 30 are when we have those exceptionally low tides where it is exceptionally easy to get out in those mud flats and harvest. That winter period is when we have those low tides. So we basically are spanning that entire time frame.

The other proposal then is also to establish a statewide bag limit, which would be 15 univalve snails in the aggregate. And that of course, is only dealing with the live animal univalve snails, or the live critters in the shell. And then within that concept of that bag limit, there would be no more than two each in the daily bag of lightning whelk, the horse conch, the Florida fighting conch, pear whelks, banded tulips, and the Florida rock snail.

That concludes my presentation at this time, and for the Coastal Fisheries recommendations for statewide hunting and fishing. I would be happy to answer any questions.

COMMISSIONER FITZSIMONS: That was a little bit easier than the spotted sea trout.

MR. COOK: Wait and see.

COMMISSIONER FITZSIMONS: Thank you, Robin. Any questions for Robin?

(No response.)

COMMISSIONER FITZSIMONS: Mike?

MR. BERGER: Thank you Mr. Chairman and Commissioners. I am Mike Berger of the Wildlife Division. And I am here to talk about the Wildlife Division recommendations for the statewide and the rules affecting white-tail deer, mule deer, turkey, lesser prairie chickens and other miscellaneous hunting provisions.

Let's start with the simplification of Doe Day Regulations. You will notice here there are seven different Doe Day types around the state, bearing from no days to 23, 30 or a full season. What we would propose is to simplify and increase some opportunity for the taking of does to three different categories other than closed and full season. We expand the full season quite a bit, and expand other areas as well. This is an expansion of opportunity in nearly all areas of the state.

The next provision is we want to eliminate one buck zones and the one buck and two buck aggregate bag limits. Currently, there are 171 counties with a one buck bag limit divided into east and west, that is the blue and the red areas. Hunters are restricted to one buck, this is using their license tags, and it is not for MLD properties, but they are restricted to one buck from the eastern counties and one buck from the western counties.

And we would like to eliminate those zones and the aggregate bag limit, meaning that hunters could take one buck from any of the one buck counties and if they so chose, they could take all three buck, use all three buck tags on their license in separate one buck counties. There are 62 counties with a two buck bag limit. And under the current rules, a hunter can take two bucks from that combined area.

And again, the change that we would allow would allow you to take two bucks in any single two buck county and then you could take your third buck in another two buck county or a one buck county or a three buck county, where ever you chose. So as long as you don't exceed the county bag limit there then you are okay. So this is what it would look like then. We would have the blue would be the one buck counties. The two buck counties are in Green.

And in a little bit, you will hear about our antler restriction counties and our proposal for those. And were that to be put out for public comment and ultimately adopted, we would have another increase in the number of two buck counties with some antler restrictions. But you will hear about that.

COMMISSIONER FITZSIMONS: Wait. Moving from one buck to two buck?

MR. BERGER: It would move from one buck to two buck with restriction. And so now, I would like to talk about that, and introduce Bob Carroll, our wildlife district leader from La Grange to come up here and talk to you about our three year experimental antler restriction.

MR. CARROLL: Mr. Chairman, Commissioners. The little card that Mitch is passing out right now is a hunter guide that we passed out over 36,000 of these to hunters and landowners during this three year experiment. It was meant to help and assist the hunters in making a well-informed choice on which bucks to shoot. And we feel like that it served its purpose well.

Let me bring you up to date a little bit on how we got to this point. In the past, we had the Texas Sportsmen Association and we had wildlife coops from the Columbus, Washington County area come to the Commission and asking for help to reduce the hunting pressure on the buck herd. And these six counties were selected in that area that this request was coming from. Also they were selected because of the heavy hunting pressure that was represented in these six counties.

Some of the heaviest in the state. The antlers restriction regulation as it has read the last three years reads: A legal buck deer is defined as having a hardened antler protruding through the skin and at least one unbranched antler, or an inside spread measurement between main beams of 13 inches or greater, or 6 points or more on one side.

The reason I have highlighted the six points or more on one side, is because this is the point of the regulation that we would recommend to drop. This was this particular deer. It was legal the last three hunting seasons. It has six points on one side, but less than a 13 inch spread, and it only made up 1 to 2 percent of the harvest that came into the check stations, a very minimal amount.

And by dropping this third criteria, it would simplify the regulation. This would be a legal deer, as one unbranched antler. This would have been a legal deer. It had one unbranched antler. This would have been a legal deer, because it had a 13 inch or a greater inside spread. We used the back of that card. You might look at it, and see a deer that would cause the hunters to use the ears when they were in alert position to help judge inside spread.

In the Southern Oak Prairie District, the ears at tip-to-tip measurement is approximately 13 inches. And we felt like this would be a good measure for the hunters to be able to use. We also sent out an opinion survey at these six counties in November, and we asked this question on there. My ability to judge inside antler spread has improved since the antler restriction regulation has become law. 76 percent agreed with this. That they had gotten better at judging inside spread.

This was an illegal buck, in this regulation. It did not meet any of the three criteria that it should have. We had two goals to this regulation. The first goal was to improve the age structure of the buck herd. The second, if we could do that, was to increase hunter opportunity by adding a second buck to the bag limit.

There are exceptions to this regulation. Landowners who have been issued level two or level three managed land deer permits may operate under a Wildlife Management Plan and have their own season and bag limits; therefore, they would not have to abide by this regulation. And so the data we collected, we knew that there would be an impact on the harvest, the first year of this regulation.

The five years prior to the regulation, the average buck harvest in these six counties was almost 5,000 bucks. The first year of the regulation, the buck harvest declined by 38 percent, which we expected. And we didn't know how quickly it would rebound. But as you can see, in 2003, the second year of the regulation, it rebounded to above the five year average part of going into it.

MR. COOK: '02 was the first year.

MR. CARROLL: '02 was the first year. The '04 information will not be in, that is some of the only information we don't have yet. It won't be until late March or early April. But it appears that there is a one year penalty with this regulation that the hunters, that they are going to have a reduced harvest that first year. But it jumps back pretty quick.

COMMISSIONER FITZSIMONS: Do you have any data on what you found showing the average age?

MR. CARROLL: Do what?

COMMISSIONER FITZSIMONS: The average age of deer killed? Harvested?

MR. CARROLL: Yes. That is coming.

COMMISSIONER FITZSIMONS: Okay.

MR. CARROLL: All right. These were the deer that we had 17 check stations in these counties. They were incentive-based check stations. These were the deer that were brought to the check stations each year. What I would like to call your attention to, are the two columns. One headed: At Least One Unbranched Antler, and the other: Inside Spread Equal to or Greater than 13 Inches. If you will look at the 2002 and '03, the first year, we had approximately one and a half times as many 13 inch or greater spread deer killed that year, brought to the check station.

And look at the second year in '03, '04. That increased almost twice as many 13 inch spread deer killed in regards to one unbranched antler. If you look at the last year of the reg, in '04 and '05, we had almost four times as many 13 inch or greater inside spread deer killed than we did with one unbranched antler. And you will see additional data as we flip through this to support this.

I'd like to commend our Law Enforcement Division. They helped us greatly in enforcing this regulation and in collecting data for us. This information was collected by them. The first year of the regulations is a red bar. We had 41 illegal bucks harvested that first year.

The second year of the regulation, we had 31 illegal bucks harvested. And the last or third year of the regulation, we had 17 illegal bucks harvested. And looking at the bar graphs, it really looks like the hunters were trying to abide by the regulation. Most over half each time were within an inch of that thirteen inches. So they were getting better at judging this antler spread.

This is the chart you asked about. This is a very important chart in this data set. I am going to flip through these. The red bar represents the percent year and a half old harvest in this deer herd, prior to this regulation.

And I am going to go through it by age class. I am going to show you each year that we collected data, and the goal will come at the end that we set for this. The first year of the regulation this year and a half old percent of the harvest declined 36 percent. The second year of the regulation it declined more than 28 percent. The third year of regulation had declined to 14 percent. The goal we had set was 15 percent.

The 2-1/2 year olds in the 1990s were represented by 27 percent of the harvest. The first year of the regulation that dropped to 16 percent. Then 17 percent the second year. The third year was at 15 percent. The goal we had set was 20 percent. We were trying to get less than the goal in the year and 2 2 year old age classes, and above the goal, with the three and the 4 2 year old age classes. 3 2 represented 16 percent of the harvest in the 1990s. First year of the reg, that jumped to 25, 26. The second year it jumped to 33. The third year it went to 39 percent.

The goal that we had set was 35 percent. There were 4 percent of the harvest represented by 4 2 year old and older bucks in the 1990s. First year of the reg, that went to 23. The second year of the reg, 22. Third year of the reg, 32. And the goal that we had set was 30 percent. So we bettered our goal in each case. We did better than really, what we thought we would do with this. Let me show you this data in another perspective. This chart might look complicated to start with, but let me try to help you understand it. If you will look at the bottom axis, what this does, it presents this data in the frequency of deer harvested by age class, by spread. If you look on the bottom axis, and see the number eight, and the pink bar that comes up, that is the tallest bar of the year and a half old age class, which means there were more bucks killed in this antler spread, 8 inches, of the 1 2 year old age class, than any other antler spread.

This is the composition of the harvest the year before we started this regulation. Now I want you to pay particular interest again to the bottom bar, the bottom chart. And look at the area between seven and 13 inches. This is the deer that this regulation was designed to protect. And we wanted to drop them out of the harvest. In the first year of the regulation, you can see where it did that. It protected those deer.

Now, as I flip through the next two years of this regulation, and the data here, pay particular attention to the left hand side of the chart, and the pink bars, and that is how it will decline. And the right hand side, with a 13 inch or greater spread deer, and how that will increase. This is the second year of the regulation. This is the third year of the regulation.

So, this leads us, when we see this shift happen like this, we believe that staying with the regulation as it is, with a one buck limit, we would be inadvertently protecting spike bucks. And we have a surplus of deer, in spike bucks, in that lower end, and we want to give the hunters opportunity to harvest. So that is one of our reasons for wanting to go to a two buck bag. Another question that we asked with the six county survey, I support making the current experimental buck harvest regulation and include antler restriction as a permanent law. This was sent to 12,000 hunters and landowners in the six county area. 72 percent agreed with that. We also scoped 15 additional counties, one buck counties in District 7 to see if there was an interest in this regulation.

We scoped each county. Each county showed a very high interest in the regulation. So we came back and then we survey these counties. Each county, individually, we sent 1,500 surveys. Landowners, half. Another half to hunters. The response from this was an 81 percent agreed to the question, I would support a buck harvest regulation that includes antler restrictions and a second buck which must have at least one unbranched antler. So there was quite a bit of interest out there in expanding this into these additional 15 counties.

The proposed regulation that we are proposing reads like this. A legal buck will be defined as having a hardened antler protruding through the skin and at least one unbranched antler or an inside spread measurement between main beams of 13 inches or greater. This is a new addition. Bag limit: two bucks. One buck must have at least one unbranched antler. The green counties here are the six county experimental area, and the yellow counties are the 15 additional counties that were scoped and surveyed for expansion of this regulation. And we are recommending that we include these 15 in this regulation proposal.

I would like to leave you with two more questions that I think are very important, that we asked to the people there. The first was the experimental antler restriction regulation has had a negative impact on youth hunting. 78 percent disagreed with this. We have had very few detractors in this regulation time. The few comments that we got from them did include, well, they thought it would have a negative impact on youth hunting. But from what the landowners and the hunters told us in the survey, they didn't think that it did.

The last question we asked: would I enjoy hunting more now than I did before new antler restriction regulations were put into effect. 70 percent agreed with this. Now this makes me feel real good. We have improved the quality of that hunting opportunity for that hunter out there. And I think the Department should be proud of this.

COMMISSIONER FITZSIMONS: We're proud of the work you did there, but some of us weren't convinced of this. Me included, in the beginning. But as you will remember, I asked you, whenever that was, three or four years ago. Is this the only way we can get these one buck counties to two bucks? And I'll support it, if that is how we get to two bucks, because that is the goal. From one buck to two buck. And you have done it. It is no surprise, I guess, to any of us, that management works. It is unbelievable.

COMMISSIONER MONTGOMERY: Question. What is the penalty for shooting an illegal buck and do we distinguish in our penalty system between voluntary admission that you shot an illegal buck versus involuntary.

MR. CARROLL: I would defer that to David Sinclair in the audience. But I would like to say this. The wardens had a good plan here, and they used very good discretion in it, and I am proud of them.

COMMISSIONER MONTGOMERY: Clearly, law enforcement was working in synch with management for that whole thing. It looked like an impressive team effort.

COMMISSIONER FITZSIMONS: They weren't scaring anybody. That is important. Commissioner Ramos?

COMMISSIONER RAMOS: In expanding this program, and by the way, I was also surprised, but pleasantly surprised that this worked. In looking now at expanding it to additional counties, do we find that the current herds in those counties were comparable to where we started with these other ones?

MR. CARROLL: Yes, sir. Most of that country is live between Houston and San Antonio, and there's a very high hunter density in it. And small land ownership sizes.

COMMISSIONER RAMOS: Have we had any input from any of the landowners in that area as to how they feel about this program?

MR. CARROLL: Are you talking about the 20?

COMMISSIONER RAMOS: The new counties.

MR. CARROLL: Yes, sir. We scoped them, and then we had scoping meetings in each county. And then we surveyed each county, and that is where the 81 percent agreed that they would like to have this. Yes, sir.

COMMISSIONER MONTGOMERY: I didn't get an answer to my question.

COMMISSIONER FITZSIMONS: Commissioner Montgomery? David?

MR. SINCLAIR: Commissioners, I am David Sinclair, Chief of Wildlife Enforcement. And we do investigate those cases, individually. And we look at them individually. I would say, I forget what the numbers were. There were several illegal deer killed this last year, but there were only ten warning citations issued, and nine real citations. So we are not filing every case. We are judging those on a case by case basis.

COMMISSIONER MONTGOMERY: I am just curious. What is the penalty for doing that?

MR. SINCLAIR: It is a Class C misdemeanor. Maximum fine of $500.

COMMISSIONER MONTGOMERY: Nothing special in this managed situation for the voluntary reporting? Okay.

MR. CARROLL: The first year of the reg, I might add, there were no hard tickets filed. I recording one, the second year of the reg, there were 18 hard tickets filed, and the third year of the reg, there were ten hard tickets filed.

COMMISSIONER FITZSIMONS: And how many were filed before the regs?

MR. CARROLL: I can't answer that.

COMMISSIONER FITZSIMONS: My guess is that ten of those ten a certain number will never get filed, no matter what.

COMMISSIONER HOLMES: You mentioned earlier that you didn't have all the numbers in for this season, but you did display some numbers.

MR. CARROLL: We had the numbers in for everything except for the statewide hunter harvest survey, which will tell us the total number of bucks harvested in those six counties. Everything but that.

MR. COOK: It's another verification of numbers harvested, is what it is. As opposed to the check station.

MR. BERGER: The data here, I think, came from the check station.

MR. CARROLL: Yes. Most of the data here came from the check station.

COMMISSIONER HOLMES: Which presumably would increase the total number harvested from that 600 some-odd number.

MR. CARROLL: Oh yes. That was just deer brought in the check station. The volunteer check stations. Yes, sir.

COMMISSIONER FITZSIMONS: I can tell you from just what I have been told by the people I know in that part of the world that there is a new interest in hunting by a lot of people who quit hunting. They are getting excited because they are starting to see some deer that have some age and bigger.

MR. CARROLL: Absolutely.

MR. COOK: From my perspective, that may be the most valuable thing here, is getting landowners and hunters seeing some results that they can have a positive impact and thereby implementing some habitat management practices that will further their program. If we continue to create coops working together. I think it is real important that that area has some of the strongest coop areas in the entire state. And so, yes.

I think it is Mr. Carroll and his staff have done an excellent job over there, and this is a particularly as the Chairman says, these one buck counties around the state. This is a regulation option that we are sounding out in other areas. And you will probably be hearing more about it in other areas, in the eastern and northeastern part of the state.

COMMISSIONER FITZSIMONS: On this page one buck issue, is it fair to say that those one buck counties continue because of age structure? Or we could move the age structure forward, like you have here. You can go to two buck? Or is that a generalization.

MR. CARROLL: Yes. As long as you protect that second buck, to a degree, by making it stipulate that it has to be one on the list.

COMMISSIONER FITZSIMONS: Commissioner Parker?

COMMISSIONER PARKER: In this case, good news travels fast. The people in East Texas are anxiously awaiting this program.

MR. BERGER: As Mr. Cook said, we have a number of some scoping meetings scheduled throughout the areas in the Piney Woods and other one buck counties around the state. And if there is interest, we'll follow up with surveys, it is in our future, still.

COMMISSIONER RAMOS: I may have missed this, but as a result of this experimental harvesting of deer, two things. One, has the opportunity for hunters increased?

MR. CARROLL: Yes, sir.

COMMISSIONER RAMOS: That's fine. And the second one is, has our overall herd numbers in each county dropped because of the harvest, or did we eliminate and improve the older. Is the herd at the same level, overall, generally?

MR. CARROLL: If you are talking about density wise, numbers wise, the herds probably have increased a little bit in numbers. You have to realize that four of those six counties are not high deer density counties, two are. And we don't issue a lot of MLD permits in those four low deer density counties. So we don't take a lot of female out of there, out of the herd.

COMMISSIONER RAMOS: Okay. So we have more hunter opportunity. We have more deer and better deer?

MR. CARROLL: Yes, sir.

COMMISSIONER RAMOS: Okay.

MR. CARROLL: And we do stress B

COMMISSIONER RAMOS: So I guess we can take the word experimental off of it?

MR. CARROLL: Absolutely.

COMMISSIONER FITZSIMONS: Okay. Make a note for Bob Carroll's file. You were right. I was wrong.

COMMISSIONER RAMOS: I'll tell you who we need to commend, too, are the residents and the hunters of those counties. And those coops. They really supported the program. And without the support of the hunters and landowners you know, in keeping an open mind to these type of projects, we'll never improve the quality of our resource in the state.

MR. CARROLL: But they were willing to give it a chance.

COMMISSIONER RAMOS: Yes. That is great.

COMMISSIONER FITZSIMONS: Thank you, Bob.

MR. BERGER: Next, I would like to introduce Clay Brewer, our Mule Deer Program leader to bring you a recommendation for expansion of our Managed Land Deer program to mule deer.

MR. BREWER: Good morning, Mr. Chairman, Regulation Committee members. The purpose of this briefing is to request permission to publish a proposal that would create a managed lands deer permit program or MLDP program for mule deer. To lead into this discussion, this slide shows the current mule deer seasons in Texas.

In the Panhandle, mule deer season begins the Saturday before Thanksgiving and runs for 16 consecutive days. In nine days, in seven southwestern counties. In the Trans-Pecos, the season begins the last Saturday of November, and runs 16 consecutive days. To provide some background, a mule deer MLDP program was requested by landowners in 2002.

A proposal was developed and published in the Texas Register, local newspapers throughout the Trans-Pecos and Panhandle, Livestock Weekly, TPWD web page, and seven public hearings were conducted to obtain public input. The proposal was tabled at the May 2003 Commission meeting, because of strong public opposition, primarily from landowners in the Trans-Pecos.

We really didn't hear a whole lot of opposition from the Panhandle at that time. As a result of continued requests from landowners, managers and others, TPWD field staff began visiting with folks on both sides of the issue to try to find a program that might be accepted by a majority in the Trans-Pecos. In visiting with people, it became very clear that many were opposed to the previous proposal because the extended season incentive fell within the peak of mule deer breeding.

The proposal, the actual season, the proposed season began seven days before the general season and extended through December 31. Based on this input, we began working on a compromise which led to the development of a new proposal. In the last few months, we visited with hundreds of people, organizations to discuss this compromise. The elements of the new proposal are similar to the previous proposal with the exception of the extended season incentive, which avoids the peak of mule deer breeding.

The season would begin the first Saturday of November and extend through the last day of the general mule deer season. Other elements of the proposal include an approved wildlife management plan, three years population or survey data. Two years harvest data. Landowners would have to agree to implement at least three habitat improvements. It is important for you to understand that the inclusion of the stiff data requirements is a critical issue for both landowners and TPWD field staff.

For landowners, it is an indicator of how serious folks are about proper management. Field staff believes that the data is a must for proper management decisions. Finally, the program is voluntary and available to everyone. And with that, I will answer any questions you might have.

COMMISSIONER FITZSIMONS: Mr. Cook.

MR. COOK: Just to clarify, under the proposal, the season would open under the MLDP permits, would open the first Saturday of November and go through about mid-December, whatever that is?

MR. BREWER: You are right. That is correct.

COMMISSIONER FITZSIMONS: Is there any biological reason, if you have got a restricted harvest, and you all have a recommendation, correct, on your tract of land out there.

MR. BREWER: Yes, sir.

COMMISSIONER FITZSIMONS: And I talked to one biologist who gave me an example of a 65,000 acre ranch. The biologist thought their guess would be probably be a recommendation of six deer. Six mature bucks on that. It is hardly an over-harvest. But is there any biological difference on what day that deer dies?

MR. BREWER: No, sir.

COMMISSIONER FITZSIMONS: Okay.

MR. BREWER: I mean, in the MLD program, it comes with a set of harvest restrictions. So, in reality, in many cases, there would be fewer deer killed, or depending on the situation. So it would be a restricted harvest.

COMMISSIONER HOLMES: I'm having a hard time figuring out how many days this season is likely to be.

MR. BREWER: Well, and the reason why I showed you that first slide, it is 16 days. In the Panhandle, the season begins the Saturday before Thanksgiving and it goes for 16 days. So it is the first Saturday in November, and it runs through 16 days after that Saturday before Thanksgiving. So you know, in some cases, you are talking 40 something days, something like that, 45 days roughly. Yes, sir.

COMMISSIONER FITZSIMONS: Now most schools aren't out until mid-December, right? If you are looking at youth hunting opportunities? For Christmas vacation? Commissioner Parker?

COMMISSIONER PARKER: What is the ‑‑ I have been hearing the pros and cons of this. In your opinion, why is there such a controversy about this program in the Trans-Pecos area. Now I have heard nothing in what I call West Texas, which is Midland, north to across the Red River to New Mexico. I call that West Texas and the Panhandle above that.

Those areas, I haven't heard any controversy. In the Trans-Pecos, there is a high level of controversy about the program. In your opinion, why are we having such a controversy in the Trans-Pecos area?

MR. BREWER: Number one is the rut. And there was no doubt, it was the most controversial aspect of the previous proposal. And that is why we developed a compromise.

COMMISSIONER PARKER: When is the rut?

MR. BREWER: Actually, the existing season last year picked up the beginning of the rut. So the general season would actually involve some of the rut. So to answer your question, to me, that was the heated issue. And for us, our goal was to find something to try to fit somewhere in the middle. Because we have landowners that want this program just as strongly as those that don't want this program.

And so we had to find some way to fit in the middle of this thing. And to me, that was the answer, by pulling the rut out. And I hear comments today, that if you will leave the rut out of it, we can accept this. This doesn't hurt us.

So, and then on top of that, I think there is you have probably seen it in newspaper articles and other things recently, that I think there is some concern that next year we are going to be sitting here at this table again talking about the rut. So I do think there is some genuine concern about that. So to me, that is the key issue.

COMMISSIONER FITZSIMONS: But there is no ‑‑ again, there is no biological reason not to hunt the rut, like we do with Whitetail?

COMMISSIONER WATSON: Well, you know, Mike, I think you all have done a wonderful job. I think particularly in bringing this back. And I think you have really listened to everybody. And as somebody that has been involved in MLD for about eight years, you know, is what we have seen before in one of the previous presentations, you know, management does work. And this is voluntary. You don't like it, don't participate.

But I think that the people that want to participate, MLD is a fantastic management tool, and I think the resource will be better for it. And I applaud you for it, and I really would support this being made available.

COMMISSIONER BROWN: You know, one of the comments that I have heard is that it is voluntary, but if we don't participate, we are going to be forced to participate to protect our property. You know, so I just know that argument that is out there.

COMMISSIONER FITZSIMONS: Yes. That point ought to be addressed. And I think the only way to address it is to look at the history of MLD. And what do we run, about 15 percent?

MR. COOK: We talked about that a little bit the other day, Commissioner. And I don't have the numbers. We could get them right quick. In fact, it would probably would take a week, or Mitch could tell us right off.

But if you look at Whitetail range in Texas, we have had an MLD program for Whitetail for 15 years or so, 20 years. And right now, today, there is about I think it is probably somewhere in the range, crunching my numbers of 15 to 20 percent of the Whitetail range that are in approved management programs.

MR. BREWER: 2,900 landowners. Roughly 7.4 million acres in the Whitetail program.

MR. COOK: You know, so even after all of those years, it is not like people are forced into it. And I heard that. And I think the perception though, prior to coming in, I can understand people having that perception.

And I think that if they are providing good hunting and good recreation opportunity, they are certainly not going to have any trouble leasing their country for hunting if they don't go with this program. I think over time, yes, I think they will get some pressure from their customers to go this route, because it gives their customers, hunters more flexibility and more opportunity.

COMMISSIONER FITZSIMONS: Commissioner Ramos.

COMMISSIONER RAMOS: Well, as you may recall, if you look at the minutes, two years ago, I was wholeheartedly in favor. And I am like Commissioner Watson. I wholeheartedly believe in tools that we can create and give to landowners of this state to improve their herds. And to me, it is almost a no-brainer that we should not offer those tools.

But more importantly, as it relates to a managed land deer program, it is a management program, and those programs are only going to be good or as weak as the manager or the steward of the land. So whether the season is pre-rut or post-rut to me is of no significance, because you are going to have specific criteria. You are going to have data, and you are going to have studies.

And you are going to have someone that is advising you. And they should then be comes to you as a manager, implement those or not. So I wholeheartedly support this. I think this last program that we talked about just a minute ago, is perfect proof that sometimes we doubt stuff. And you know, we could even call this an experimental program.

But I really feel that we should have the landowners have a tool and those that feel that you know, that is the worst thing in the world, well, that is fine. Let time prove them right or wrong. But I don't think we should not consider a program that is going to improve the resource. And I wholeheartedly support that.

COMMISSIONER FITZSIMONS: That is a good point, Commissioner Ramos, as it reminds me of the story I was told before I came on the Commission about quail season being too long. And the Chairman at that time told the landowner, stop it whenever you want to. And that is our philosophy here. We give you as much latitude as you biologically can handle with your plan, and you hunt every other day if you want to. You can stop it during the rut if you want to.

And I think we should give that choice to the individual landowner. Just as we do when a fellow told me, you have got quail season too late. They are pairing up. And I said, then you ought to quit.

COMMISSIONER RAMOS: Well, that is the whole point. In any program that we implement, whatever it is, be it as to quail, deer, javelina, jackrabbits, that is only going to be as effective or as good as the steward of the land, the landowner. And if that landowner says I don't want any jackrabbits shot on my ranch, fine. You have that prerogative, and it is an optional program.

But I don't think we should keep the progressive landowners, or the ones that are willing to take a chance. And I don't see it as a chance. I see it as an opportunity. I don't see why we should preclude them from taking that step. I think in time, it is going to be a great program for the state.

COMMISSIONER FITZSIMONS: Clay, you have been on the hot seat. You have been doing the hard work. You have been drinking a lot of coffee. Some of it good. And making a lot of visits. And the heat needs to be here, though. Because the point you brought up is exactly the point, the rut.

And absolutely, I think it was a valid point about are we being pushed into this. And I think the experience shows that that doesn't happen. You don't get those phone calls. Mike, do you get phone calls from people saying I don't want to do MLD, but I have got to?

MR. BERGER: No, sir.

COMMISSIONER FITZSIMONS: All right. Now it may be different here. But let's deal with your second point, which is people are saying: well, sooner or later, they are going to come back and be talking about this rut. Well, let's just talk about it right now. I mean, I think it is clear that the point is, it is up to the landowner. If he is in or out of that.

And I think that when we go to these public hearings, and I will be there, you know, we deal with that straight up front. Because I know you have worked hard at this compromise. It shows a lot of work. But it doesn't change the fact that the date really doesn't matter, and it ought to be up to the landowner. So with that proviso, anything else?

COMMISSIONER HOLMES: Just one last observation and comment. Have we seen any indication over the 15 or 20 years of MLD program for Whitetail that it has overall harmed the herd of deer, statewide, on the individuals that have participated in that program?

MR. COOK: I was here when it started. I wrote some of the plans. I have a plan on my home ranch for ten years. I was here before the plans. I have absolutely no question it is better. There has been no harm neighbor-wise or otherwise.

COMMISSIONER HOLMES: Is there any reason to believe that it would be a different result for mule deer?

MR. COOK: In my opinion, no sir. Absolutely not. I have to share this with you, in reference to the Chairman's comments about let's talk about this now, because I think it is important. Mr. Brewer has done us a great job, as other staff.

We have got other staff in the audience, of finding a compromise position. And the question becomes one of kind of where do we go from here? And I need to tell you that as a practicing manager, if the harvest is six or eight or ten or whatever it is, ideally, those big deer would be the last deer I would kill. I would let them go through the rut.

You know, in Whitetail deer, which is a different species, different set of situations, and we all understand that. Many of the people who are in excellent management programs, excellent habitat, don't even start hunting until the rut, because they know that is when they are going to have the opportunity to take those, during and after the rut, when they are going to have the opportunity to take that limited number of those older age class deer that are it's time to take them out of the herd. They are not going to even have much of an opportunity prior to that.

Habitat-wise, it is different in mule deer. I mean, they are a little more obvious. But you have all hunted the rut. You have all hunted before and after the rut. And it is a factor.

I think one of the questions that was asked a while ago, Clay, the rut in the mule deer in the Trans-Pecos typically cranks up about mid-December. You have got a good wet year, folks, it is going to start earlier. They are in better shape and better condition. Their blood gets to boiling earlier.

In a really poor year, the rut is going to be shorter, strung out. But in a good year, and under good range conditions, it is going to start early. It is going to peak early and taper off quickly. And that is what you want.

COMMISSIONER FITZSIMONS: So what you are saying, you are really removing one more management tool by removing the rut.

MR. COOK: That's what, if I were a practicing manager out there, that would be what I would be saying to you. Yes, sir.

COMMISSIONER FITZSIMONS: And your habitat based on the goal of that landowner.

COMMISSIONER RAMOS: And I hope I am not speaking out of school, but would it be staff's recommendation that but for this compromise that we have discussed, that you all would be in favor of our including the rut, and then leave it up to the individual manager as to how they would use the rut, and in what management manner they would use it. And if you are uncomfortable with that, that is fine. But ideally, taking everything out of it, if you were in the abstract.

MR. BERGER: Let me say that what we came up with in presenting to you here today is a compromise from the previous proposal that Clay has worked hard on to achieve. And he has stated that biologically, I mean, and Bob has said too, if he were a manager, he would like all the flexibility he can do.

And I think, that is what the staff can comment on, is biologically, would it have an impact on the herd and the population levels. And whether the rut is hunted or not hunted makes no difference into what our harvest recommendation would be to that individual landowner. It would be consistent with his management plan for his goals and objectives. And how he took that harvest, and whether it is a 16 day season, a 40 day season or a 60 day season, it would be up to him.

COMMISSIONER RAMOS: And it goes back to the individual landowner.

MR. BERGER: Yes, sir.

COMMISSIONER RAMOS: How liberal he wants to be, or how conservative. And to the extent that he is too liberal, well, obviously, he is going to be hurting himself. Either way. Either benefit yourself or hurt it. But it is all driven by the landowner and not the hunter.

MR. BERGER: And he would have those harvest recommendations based on his harvest philosophy.

COMMISSIONER FITZSIMONS: All right. Then to make clear on what we are going to publish and send for public comment period, I think the consensus is, we want to include the issue of the rut extended to the end December in these public hearings. Because as I said, those people who say well it is just going to come up later. They are absolutely right. And we might as well deal with it now. Because there is no reason to wait to talk about this.

COMMISSIONER RAMOS: And we have got to do what is best for the program and what is best for the resource. And if staff feels that we need to include the rut, I think we should do it. And with MLDPs, you know, historically, we have taken staff's recommendation as proven to be nothing but super.

COMMISSIONER FITZSIMONS: In fairness to the staff, I think the comment was, it makes no difference as to the recommended harvest. I mean, these guys are on the hot seat here. We need to put the heat right here, because B

MR. BREWER: He is right. There is going to be a burning cross in my yard.

COMMISSIONER FITZSIMONS: You need to give them my address.

COMMISSIONER RAMOS: I still think it is landowner driven and irrespective of staff. But I hear you.

COMMISSIONER FITZSIMONS: Well, let's be real clear on that. He said that it doesn't change the recommendation. He didn't say that he is recommending the rut.

COMMISSIONER RAMOS: I understand.

COMMISSIONER FITZSIMONS: The question simply was it doesn't change that recommendation. And the compromise, correct me if I am wrong, is purely sociological, not biological.

MR. BREWER: You are exactly right.

COMMISSIONER FITZSIMONS: Okay.

MR. BREWER: You are exactly right. It is a heated issue. But it is important for you guys to understand that the support that we have built is because of that compromise, that we did exclude the rut.

COMMISSIONER FITZSIMONS: I understand. It is still voluntary, though.

MR. BREWER: You are right.

COMMISSIONER FITZSIMONS: And we are still down to, at the bottom line, we are still talking about a certain number of people that aren't going to participate, and that is fine. But they don't want their neighbor to have that choice of participating or not. And to me, that is just contrary to the philosophy and policy of this department. If you don't want to do it, fine. But don't tell the other guy he shouldn't be.

COMMISSIONER MONTGOMERY: Well, that was the upshot last time, is they want us to regulate their neighbors.

(Crosstalk.)

COMMISSIONER PARKER: In the end, we are going to have the public hearings, where everyone can come and have their say.

COMMISSIONER FITZSIMONS: Yes, sir. March 9 and 10 at Alpine and Van Horn. I am leaving my lion hunt early to get there. I go from the hunter to the hunted.

COMMISSIONER PARKER: I plan to be there with you.

COMMISSIONER FITZSIMONS: Any other questions for Clay and Mike?

(No response.)

COMMISSIONER FITZSIMONS: Clay, thank you. You have done hard work.

MR. COOK: Do we understand what we are going forward with? To the public hearings?

MR. BERGER: Yes, sir. The first Saturday in November, until the end of December with the data requirements and habitat stipulations as presented.

COMMISSIONER FITZSIMONS: Absolutely. Thank you.

MR. BERGER: Yes, sir.

COMMISSIONER FITZSIMONS: Thank you. We'll see how many Commissioners show up for the public hearing out there.

MR. BERGER: Well, that concludes the deer section of the wildlife recommendation.

COMMISSIONER FITZSIMONS: I forget sometimes, we have something other than deer.

MR. BERGER: There are other species of interest. If we move on to spring turkey seasons, again, we have a simplification and expansion of opportunity, which we will always try to refine. You will see here that our spring turkey seasons run for various times, and have various bag limits and things.

And we would again, like to simplify that quite a bit by establishing the same season length. And it is an expansion from approximately 37 days to approximately 44 days. And all of the red, it is four birds, gobblers only, Rio Grandes. That is most of the Rio Grande habitat in the state. And we start it the Saturday closest to April 1, and run it for 44 days.

The brown counties, for the most part, the Eastern block particularly, are Eastern turkeys where we have stocked those birds, and they have been successful in the habitat there, and we would, as we approved last year, this spring season will be the first 30 day season for those birds, running April 1 to April 30. One bird, gobblers only.

There are four counties along the coast down there that also have Rio Grandes. Four of the brown counties in the western blob have Eastern birds in them. The rest of the western portion of the brown counties are Rios. And they will have the same season, the April 1 to 30 season, one bird, gobblers only, whether it is Rio or Eastern. And there is still a mandatory check station requirement for Easterns, whichever block they are harvested in.

MR. COOK: Mike, if you don't mind, please go back one. There is some of this sometimes some of these are artifacts of years and again, it almost like revisiting our rules section, you know. And I appreciate the guys going through this process, and you know, the spring turkey season has been a wonderful opportunity for hunters in Texas.

They have grown in popularity far beyond, I think, even those of us who were making those kind of recommendations back in the '60s. And I think the cleanup that you are seeing here, the simplification from the resource standpoint, is a very solid recommendation. It makes life simpler for hunters, landowners, people involved, and I just wanted to point that out. Go back now. You have got those different dates and lines and stuff. And as much of that as we can clean up and remove, the better off we are.

MR. BERGER: Well, you will see cleanup here and then when we get to the fall season in South Texas, you have Zapata and Cameron counties, which are closed. And as you go forward here, you will see that that is included there. So those counties would now be open in the spring as well. In the fall season, we have a similar situation.

It is not quite as colorful as the spring season was, but you can see that again, there are a variety of season lengths and bag limits, and some counties left out. And you will see that we would go forward to simplify this as well. So that the red would be consistent with the north zone deer hunting seasons. And there would be four birds of either sex, from the first Saturday in November to the first Sunday in January, that is what the north zone Whitetail season is.

The yellow is the south zone, because this one with the south zone, deer season, first Saturday in November to the third Sunday in January. And then we have the little pink section down there which is the Sand Plains of South Texas. And it has a longer fall season that goes into February. So those are the three seasons there.

You will notice that we have added Zapata and Cameron county again. And if you would go back one, you would see that Tarrant County has been added as well to that all season, to make that more consistent. We also propose to have a recommendation from constituents and from this Committee and the Commission, an encouragement that we would have a youth only spring turkey season for Rio Grande turkeys for the weekend immediately prior, and the weekend immediately after the regular season in all counties where there are Rio Grandes. So that is an expansion of that youth opportunity.

Now we need to talk about Lesser Prairie Chickens just for a little bit. As you know, they have been losing habitat over time, for decades, actually, along with a number of prairie grouse species. But for us, the Lesser Prairie Chicken is ours. We currently have a season in the eight counties shown, the northeast Panhandle and the southwest Panhandle.

Staff feels that it is appropriate to take some action at this time to protect the remaining scattered populations of chickens in Texas, while we formulate plans to help the recovery of these species and develop partnerships to expand the usable habitat available. We don't have any data to indicate that hunting has been a contributing factor to the prairie chicken situation. In fact, the average harvest has been only 150 on average of 151 birds by 203 hunters over the past five years. That has been the average harvest.

Restricting hunting does offer some small measure of protection to the remnant lex [phonetic] that may become viable sources of birds if we are able to expand those habitat areas in the future. We are reaching out to landowners in the northeast and southwest Panhandle, planning a series of facilitated meetings in the next couple of months to work with them, to try to find out what could we do. What incentives could we provide them that would encourage them to engage in more management for Lesser Prairie Chickens to improve their lot.

We are also looking at research to find ways to better survey the prairie chickens and improve our range map of these birds. We know there are birds outside these hunted areas, but we don't know exactly where they are. So we want to work with other agencies and our federal and adjoining states. We are working with the States of New Mexico and Oklahoma and with the Fish and Wildlife Service on a number of opportunities for research and agreements to come up with ways to improve that habitat.

And while we are developing and implementing these recovery plans, we believe that it is appropriate to restrict hunting. Now I didn't say close, I said restrict. And what we would propose is something like our managed land program for deer, which we know has worked. So we would restrict the Lesser Prairie Chicken season to only those properties that would have one of our approved wildlife management plans with a Lesser Prairie Chicken enhancement component within that plan. And that they would be implementing that plan.

And as we have talked about with deer, on those properties there would be a harvest quota, or a harvest recommendation, and it would still have that same restricted season, a two day season, but with the harvest restriction for the plan. So that would be the proposal that we would put forward for comment. Hunting allowed only on those properties with a plan with a management component for Lesser Prairie Chickens.

COMMISSIONER FITZSIMONS: While we are on the subject of Lesser Prairie Chickens, do you know this is something I have taken particular interest in, because of the habitat component of trying to link up an isolated habitat. How is that working? Is it going to work through coops? How are we going to move this ball, Mike?

MR. BERGER: Well, the honest answer is, we don't know exactly how we are going to move that ball. But that is partly what these meetings are set up to do. To get groups and individual landowners together and find out what will it take. What kind of encouragements can we offer? Is it encouragement through the Farm Bill? Is it through some kind of additional regulation? Through protection of some kind, working through Fish and Wildlife Service.

We just don't know that yet. But we have to hear from those people and that is the process we are engaged in at this time. And also working to make our resources go farther and better working in cooperation with the states that share this prairie chicken resource. From the southwest Panhandle, it goes across into New Mexico, and it goes across into Oklahoma.

COMMISSIONER FITZSIMONS: Are NRCS and other farm program issues going to be involved in these meetings?

MR. BERGER: Yes, sir.

COMMISSIONER FITZSIMONS: Because that is what has driven it. That is the key.

MR. BERGER: Yes, sir. And other groups, for example, like the Plains Cotton growers, who have been very interested. So we are not looking only at groups that have some conservation in their name, but also the ones that are representative of landowners who are in traditional production agriculture to see what they can do to become involved.

COMMISSIONER FITZSIMONS: There is a lot of CRP up there that ought to be LPC habitat that isn't.

MR. BERGER: Right. And you know as well as I do, having seen that country, that when it is planted into a monocultural of Old World Bluestem, or something similar, that is not going to be Lesser Prairie Chicken habitat. It wants to be moved into native shortgrass prairies. What benefits prairie chickens and a host of others.

COMMISSIONER FITZSIMONS: Well, what drives that decision? Is it NRCS and what is the other one?

MR. BERGER: FSA, the Farm Service Administration is the one that regulates CRP. And we are working hard on getting them to have their mid-contract practices allow some manipulation that will benefit other species. That is what you have, a very entrenched bureaucracy there that needs encouragement.

MR. COOK: I just signed a letter with the director in New Mexico, Oklahoma and myself and the director of the regional U. S. Fish and Wildlife Service just signed letters to both of those federal organizations to try to bring everybody together on this issue. It is important that we take some very positive steps here. And I think the staff has that we have assigned some people some very specific tasks, and yes, we need to get some things done.

COMMISSIONER FITZSIMONS: Commissioner Montgomery.

MR. BERGER: And we have as Bob said, assigned a person whose exclusive task is to work on this, and work cooperatively with the other states to pull plans together, to put these meetings together to define and develop all the opportunities.

COMMISSIONER MONTGOMERY: Having private law, raising my hand, on the NIFWIF trip I went on almost two years ago, it seemed that the critical issue is getting the ranchers to understand what can be done. The Farm Bill is Greek to everybody. And explain to those agents. So we need a proactive program to get those agents working with the ranchers to understand that.

MR. BERGER: Under the Farm Bill and the Equip Program, which is probably the deepest pocket of the Farm Bill program, of what Texas gets, and Texas gets the largest share of any state for the Equip program. And we have designated a number of project areas in the state to focus on different species or suites of species. And we have one section of that money.

And we have, I believe, over $2 million in the last couple of years for cost share and incentive payments to landowners in that area for Lesser Prairie Chicken and quail habitat enhancement. And we are working to fine tune that as we go along. And after these meetings, hopefully, we will have some new ways that we can focus farm bill programs to make more progress than we have so far. This has only been working two years like that with more progress than we have so far to develop those habitats and find incentives for those landowners.

COMMISSIONER MONTGOMERY: Are you satisfied we have enough demonstration projects either on our WMA up there on the Canadian or on private land to show people what can be done?

MR. BERGER: Not yet. We are going to get it done, and get moving in that direction.

COMMISSIONER HOLMES: Is there anything to be learned from what seems to be a successful program of releasing Eastern Turkeys? Is there anything that would relate to the prairie chicken? Or is the Farm Bill issue and habitat issue so overpowering that it wouldn't B

MR. BERGER: Well, that is the one that is easier to work at first. What we are working on with the mapping effort is to find out where we now have the lex where they breed, and find out if there is similar habitats that are unoccupied adjacent to or nearby. And if we can find enough of those, it is a possibility that we could, I believe there is a breeding facility that New Mexico operates.

It is possible that those birds or maybe some locally trapped birds could be moved a short distance away. But again, that is in the future. But restocking, if there is appropriate habitat to put them in, which is what we did with Eastern Turkeys. We determined the appropriateness of the habitat, and the availability, and then put the wild captured birds in there.

COMMISSIONER FITZSIMONS: Big job ahead of you there.

MR. BERGER: Yes, sir.

COMMISSIONER FITZSIMONS: All right. Thank you.

MR. BERGER: Hunting by remote control. We talked about this in November. And technology has reached a state of development that allows firearms to be controlled and fired via computer from remote locations. Such an apparatus theoretically could be used to hunt birds and animals. And under this scenario, were it to come to pass, the Department would really have no way of establishing compliance with its licensing laws. The Commission possesses the authority to regulate means and methods used to take game animals and game birds.

And so we propose the change that you see here, that would affect game animals and game birds. Require a person hunting game animals or game birds be physically present and personally operate the means of take. Another item is the appeals process for deer permits. The White-tailed Deer Advisory Committee has discussed this matter in their meetings, and the value of an appeals process.

And staff concurs with those discussions and is making this recommendation that under an appeals process, a permittee who had been denied an MLD permit, or an Antlers and Spike Buck Control permit could appeal that decision to a committee composed of myself, our regional director, our Big Game program leader, and the White Tail Deer or the Mule Deer program leader, as applicable. This same process, we want to expand to the Triple T program and the Deer Management program. That is in a different proclamation, and we'll be bringing that proposal to you this spring.

Trailing wounded deer with dogs. When we began to relax regulations on the use of dogs to trail wounded deer, these two counties, Hunt and Washington were not included at that time. And we in the Law Enforcement Division personnel determined that the original reason for the restriction no longer exists, and we recommend that those counties be removed from that prohibition as well. And I have word that Clayton Wolf wanted to make a statement relative to the mule deer.

MR. WOLF: I just wanted to seek clarification. The comments on the end of the mule deer MLDP season are heard the end of December. Of course, we have a lot of Whitetail range and Whitetail season there where it ends the first Sunday in January. And so I wanted to make sure that it seemed like it would make sense to have everything end the same day, as opposed to three or four days apart, and make sure that we have permission to do that.

COMMISSIONER FITZSIMONS: No argument from me.

MR. WOLF: Thank you.

COMMISSIONER FITZSIMONS: Even better for the school kids.

MR. BERGER: That concludes the recommendations for the statewide. And we would like to publish those for comment. As you have already heard, we will have 29 public hearings around the state to collect these public comments and report those back to you.

COMMISSIONER FITZSIMONS: Thank you, Mike, for all your hard work, and everybody on the staff. Any other questions or discussions?

(No response.)

COMMISSIONER FITZSIMONS: We have got to move along here. As usual, regulations take a little time. Thanks, Mike. If there are no further questions or discussion, without objection, I authorize staff to publish this item in the Texas Register for the required public comment period. Next up, right on the spot there, Ann Bright. Number five, rule review.

MS. BRIGHT: Good morning. I am Ann Bright, General Counsel. And I am here for the final process of the rule review process. This is usually a three meeting process, and we are down to the very end on Chapters 59 and 69. Notices of the proposed review were initially published in September for these two chapters. In November, we obtained permission from the Commission to publish some changes to these two chapters. And these changes have been published in the Texas Register.

The bulk of these changes, I should initially point out, and actually probably all of them are really just clarifying and cleaning these up, making it more understandable and easier to use. In the local park planning assistance, we are standardizing the eligibility criteria. This primarily affects rural areas, to make it a little simpler for people to understand and to clean up some confusion there. For threatened, endangered and protected native plants, we are clarifying some of the requirements for commercial plant permits.

Also, we realize that there were some species that are on the United States government's lists of endangered and threatened, one of each that were not on our list, and we are adding those. We also realized that some names have changed over time, for some of these species, some of the scientific names, which I am not going to attempt to pronounce, and we are correcting those in our rules.

On fish and wildlife values, we are looking to revise the definition of endangered and threatened species to account for a deletion of a previous cross-referenced rule. We are adding a reference to the American Fisheries Society's publication regarding fish values. On rehabilitation permits, at one point the Department sponsored a rehabilitation conference that permittees were required to attend. We don't do that anymore, but there are other conferences that they can attend. So we deleted that reference.

On scientific, educational and zoological permits, we basically eliminated the renewal and replaced that with subsequent permits, because the same process is required to get a subsequent permit. It is not an automatic renewal or anything like that. We also wanted to clarify some issues regarding the sale, barter and exchange of specimens collected under the permit. And one of those things again, that has probably always been prohibited. We just want to make sure it is clear.

And then just normal cleanup. There were several places where we realized that we can make the language a little cleaner, correct some citations. We have taken the opportunity to do that. And tomorrow, we will be coming, if authorized, to the Commission and this will be the motion that we will present; to adopt the changes and to complete the rule review. And I would be happy to answer any questions.

COMMISSIONER HENRY: Is there any discussion by the Commission?

(No response.)

COMMISSIONER HENRY: Are there any questions for staff?

(No response.)

COMMISSIONER HENRY: If there are no further questions or discussion, without objection, I will place this item on the Thursday Commission meeting agenda for public comment and action. Thank you, Ann. Next, Dr. McKinney.

MR. MCKINNEY: Chairman and members. I am Dr. Larry McKinney, Director of Coastal Fisheries. At your last meeting, I presented to you a proposal to look at and consider protection of game fish under freezing conditions and briefed you on our concerns there. Since that time, we have gained some new information and had some public input on that proposal, so we have made some changes. And that is what I will briefing you on today. I will only use one slide from our last briefing to talk about our concerns, where it is coming from.

The fact that Texas is subject, can be subjected to freezing conditions from polar air masses that come down into Texas. We had a pretty spectacular example of that this year, with what happened on the coast in '04. Very quickly, I'll give you a rundown of what happened. During that period of time, temperatures dropped below freezing on two days. December 24 and 25, it reached below 28 degrees on the 25th. And of course had the first snowfall that they had down in Brownsville, as I mentioned there.

Water temperatures, which of course what we are concerned with dropped from 66 degrees Fahrenheit on the 22nd to 37 degrees at 5:00 a.m. on the 25th, then recovered back to 55 on the 26th. When fish are affected, or what promotes fish kills is two things. One is rapid temperature changes, as you might expect when those cold waters occur quickly. Commissioner Brown, you are very well aware of the impact of that.

COMMISSIONER BROWN: Very well.

MR. MCKINNEY: And then of course, when water temperatures drop below 47 degrees for any period of time, that really begins to put a stress on the fish. So that is the kinds of conditions we are concerned with. The impact, fortunately of ‑‑ the bark was a lot worse than the bite this particular time. We did have a small fish kill, primarily confined to the lower part of the coast.

As you can see, the numbers of fish killed there. Primarily affected was the Gray Snapper or Mango Snapper. The analogy I use there, is these fish are somewhat like whitewing doves over the last ten or so years. They have moved south. They are a tropical species. But they have moved north rather, not south. They have moved south now. But they have moved north under conditions and when the conditions are too much for them, they hit them pretty hard. So that was really what was hit.

So I think that is the full extent of it. No real impact on fishing. The one thing that we'll be looking for, unfortunately, is that some of the fish that did die, when this happened last time, in the '80s, we got a little bit of a boost to that brown tide, because of the nutrient releases. And we are going to watch that closely. There is nothing we can really do about it. We would hope that the impact was so small that we will not see a recurrence of brown tide for all the reasons that we would not like to see it.

Our proposal to you will really focus on two parts of our overall freeze response plan, on communications and regulations. But before I get to that, I want to make one mention of another thing that we are working on, and we are making some progress on this. The lower part of the Intercoastal Waterways through Laguna Madre is a significant refuge for fish during these conditions. And it is still relatively shallow.

And one of the big impacts that can happen is barge traffic through that channel can really exacerbate a situation. We have a lot of fish taking refuge there. We have been working, Kyle Spillar on my staff, down there, and others have been working with the towboat community and we're happy to report to you that they are very supportive of helping us on these situations, and they are willing to suspend traffic for some period of time down there. We are going to work out a formal agreement with them. But I am very pleased with that response, and that will be significant.

COMMISSIONER BROWN: Is that primarily in the land cut area?

MR. MCKINNEY: That is where we are most concerned about it, but they will suspend it for the entire length.

COMMISSIONER BROWN: All the way?

MR. MCKINNEY: Yes. That is what we are talking about now, so that is good.

COMMISSIONER BROWN: Yes.

MR. MCKINNEY: And that is one of the reasons that the rules that we are going to be proposing to you, I think, are so important. But really, we are talking about restricting recreational fishing during these periods of time. And for us to go to these businesses, they are going to take an economic hit or a risk of an economic hit for suspending those activities. I want to make sure that they are comfortable with it, and that they know that we are doing everything we can from the recreational side to minimize these impacts as well.

So we are all in the same boat together, and working together. And that is the reason we are moving forward at this time. We had comment on the original rule proposal in support of the proposal. CCA and Lower Laguna Madre Foundation and 51 individual comments. Someone must have gotten on the phone the last couple of days, because I had five or six phone messages this morning that were in support of it, from individuals.

So someone is campaigning out there a little bit, which is fine. And we had 20 individuals that were opposed. When we looked at the composition of the opposition, basically as might be typical, some folks are just opposed to any further restrictions at all for any reasons. Another group, perhaps felt these rules were not supported by data. Of course, we have pretty extensive reports from as far back as recorded history, really, in this area as it impacts there.

Some felt that current regulations provide adequate protection, and certainly, they do so from illegal activities, but we are talking about the impacts on recreational fishing areas, so it is a little bit beyond that. And then the final group, and probably the most of the comments came from the fact that rules need to be more specific about implementation. And we certainly took that into consideration.

One of the main factors of that and what we learned from the current freeze is to bring forward some modifications of those broad general rules that we proposed to you originally. And that is the basis of what this briefing will really focus on. First of all, we felt we could define what freezing means in this situation. So we defined that more clearly in the proposal.

The practical implications of that are this, and this is, in other words, when would staff recommend a closure under this rule? And basically, how we would operate is that if we saw a prediction of three continuous days of freezing conditions coming into a particular area, that would put us on the alert that we might need to seek this restriction, and when we have that first full day of freezing conditions actually occur, that would probably be the trigger point, at which we would move forward on.

Now we are also working very closely with Texas A & M at Corpus Christi, some scientists there. They have a predictive model they think they can develop for us to make this even a more accurate and a more useful tool. And if that happens, we will switch over to that at that point. So we are working actively with them in that regard, to make it easier for us to make these predictions and move forward and act as necessary.

Another concern that came up was just what areas are you talking about? There was certainly some concern. Were you talking about closing down the entire Laguna Madre, or Corpus Christi Bay, or something like that. And clearly, that was not our intent. And so we wanted to address those concerns by defining more closely what these areas were primarily being areas that have access to bank fishing and where fish might take refuge. Just wanted to give you some examples.

And in your folder that was passed out there is another page there with a more complete list of sites. That would be examples that our staff have picked out. We have just put a few on this graph to show you some geographic distribution. And the different types of things. But basically, harbors and ports and places like that where these fish are congregating and they are very easily accessed.

And so that is we would not propose putting the sites into the rules themselves, but we'll talk more about how we made sure people knew about the potential sites in the future. But I wanted to give you that kind of example.

COMMISSIONER BROWN: What about Baffin Bay?

MR. MCKINNEY: Not at the hole, no, Mr. Brown. And we had some questions about that. For example, from commercials and others. And I was probably more flippant. I said you know, if you are brave enough to get out on Baffin Bay under these conditions, or any of those places, more power to you.

I don't think there are going to be any fish out there necessarily, but you may need other help besides fishing help, if you are going to do that. The few times I have tried it, I mostly wished I hadn't. And then finally, just to also make clear that we would take strong efforts on the communications end of this thing to make sure our constituents knew what we were doing and when and when we were asked for disclosure and when we would release it.

And the response to that, for example, we will make sure that the potential sites were made available well in advance through web sites and through our communications. We have a communication strategy that is also in your packet that we passed out. So we will do a lot of work to make sure that the information is out there as to when we might pull that trigger if we felt it was necessary.

Final, more clarification to make sure that folks understand. We are talking about recreational fishing. Fishing with hook and line, pole and line, throw lines. That is what we are talking about here. By being specific here, we do take away some concerns from the commercial fisheries; the black drum, the trot-liners and some of the potential economic impacts that we really don't want to get into. Again, we are not really concerned about those activities during that time. But this would give those commenters some comfort; this is what we are talking about, being more specific, and so that is why we propose it.

So with that, Mr. Chairman and members, that is what the proposal we would bring forward to you tomorrow. If you have any questions, I will be glad to answer them.

COMMISSIONER FITZSIMONS: My two coastal guys.

COMMISSIONER BROWN: I have already asked questions.

COMMISSIONER FITZSIMONS: All right.

COMMISSIONER WATSON: I'll take one. By the way I think it is absolutely appropriate to do this, and I don't think you'll have any difficulty.

COMMISSIONER HOLMES: Yes. I'm very supportive of it, too, and I appreciate you bringing it forward. I had just one question and it is kind of a technical question. You had in your notice provision you had appropriate notice. And I am not sure I know what appropriate notice means.

MR. MCKINNEY: Well, appropriate means whatever works. It is pretty broad.

COMMISSIONER FITZSIMONS: That would be known as effective notice.

MR. MCKINNEY: That's it. We didn't want to limit our options. We wanted to use everything. To some extent, we are going to have to experiment with it a little bit to see what works. So we want to make sure that we were held accountable to some level of what was best. So we just thought appropriate would be the term.

COMMISSIONER PARKER: In other words, you are using radio, television, newspaper, all that.

MR. MCKINNEY: Right. If you look at our communication strategy plan, yes sir, that plan is there. It implies that we will be using all of those. Everything that we can, basically.

COMMISSIONER BROWN: In defining the areas, and it is going to be consistently defined as the same areas each time this takes place.

MR. MCKINNEY: We would not make a closure in an area that we didn't have on that list. It would be on that list.

COMMISSIONER PARKER: Would this be published in the annual publication?

MR. MCKINNEY: It could be. And we have got the space for it. But certainly on the internet and through our sport writing groups, sports writers and others to make it available and through the annual would be a good place to do it. Again, it is just a matter of space.

COMMISSIONER PARKER: I would think that publishing this in the annual would give clarity.

COMMISSIONER FITZSIMONS: It's a good idea.

MR. MCKINNEY: Well, I know that Law Enforcement appreciates that, because that is really what they use a lot. So we would want to help them in any way we could. And I do, I forgot to mention this, and I am remiss in it. Thank you for reminding me.

During this last freeze event, even though we didn't have these rules in place, I do want to acknowledge and appreciate our Law Enforcement folks. They went out to all these types of areas, took a look at them and checked them out and did some work there. Which I think helped. And I do appreciate that.

COMMISSIONER FITZSIMONS: Anything else? Lost my place here.

(No response.)

COMMISSIONER FITZSIMONS: Okay, if we have no further discussion and no objection, I will place this item on the Thursday Commission meeting agenda for public comment and action. Next up, thank you. Next up, item seven: legislative rules review. Mike?

MR. BERGER: Good morning, Mr. Chairman, Commissioners. I am Mike Berger, Director of the Wildlife Division. And I'm here with the rules review process. As part of that process, staff has recommended that since the Wildlife Division now administers the aerial management program, the rules governing that program should be transferred from the law enforcement chapter of the Administrative Code to the Wildlife Chapter of the Code. So we would propose to repeal the rules in Chapter 55 and transfer them to Chapter 65 Wildlife. Questions?

COMMISSIONER FITZSIMONS: Is that it?

MR. BERGER: That's it.

COMMISSIONER FITZSIMONS: If there are no further questions, I'll place this item on the Thursday Commission Meeting Agenda for public comment and action. Anything else to come before the Regulations Committee, Mr. Cook?

MR. COOK: No, sir.

COMMISSIONER FITZSIMONS: Hearing none, the Committee has concluded its business. We'll move on to the I was going to say Finance Committee Meeting, but we are going to recess for Executive and adjourn. We adjourn Regulations. Okay. I would like to announce that pursuant to the requirements of Chapter 551 Government Code, referred to as the Open Meetings Law, an executive session will be held at this time for the purpose of consideration of Section 551.072 of the Texas Open Meetings Act regarding real estate matters and general counsel advice.

(Whereupon, the Regulations Committee meeting was adjourned.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission
Regulations Committee
LOCATION: Austin, Texas
DATE: January 26, 2005

I do hereby certify that the foregoing pages, numbers 1 through 86, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Penny Bynum before the Texas Parks and Wildlife Commission.

1/08/05

(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731