Work Session
Wednesday, May 26, 2021
9:00 a.m.
Texas Parks and Wildlife Department
Commission Hearing Room
4200 Smith School Road, Austin, TX 78744
S. Reed Morian, Commission Chair
Carter Smith, Executive Director
Approval of the Previous Minutes from the Commission Work Session held March 24, 2021
- Update on the Texas Parks and Wildlife Department’s Progress in Implementing the Texas Parks and Wildlife Department Land and Water Resources Conservation and Recreation Plan – Carter Smith
- Internal Affairs Update
- Staff Recognition
- 25th Anniversary of Two Statewide Nature Tourism Programs
- Lone Star Land Steward Awards 25th Anniversary Event
- Aoudad-Desert Bighorn Sheep Disease Transmission Study Update
- Alligator Gar Management Update
- Toyota ShareLunker Program
- Legislative Update – Request Permission to Publish Proposed Rules Needed to Implement Legislation Passed During the 87th Texas Legislature – Carter Smith, James Murphy
- Financial Overview – Reggie Pegues
- Request to Exceed Capital Budget Transfer Limitations (Action Item No. 2)
- Internal Audit Update – Brandy Meeks
- Public Hunting Program – Establishment of an Open Season on Public Hunting Lands and Approval of Public Hunting Activities in State Parks – Justin Dreibelbis (Action Item No. 3)
- Public Lands Proclamation – Recommended Adoption of Proposed Changes – Justin Dreibelbis (Action Item No. 4)
- Aerial Wildlife Management Rules – Recommended Adoption of Proposed Changes – Claudia Solis, Stormy King (Action Item No. 5)
- Commercially Protected Finfish Rules – Recommended Adoption of Proposed Changes – Jarret Barker (Action Item No. 6)
- Statewide Oyster Fishery Proclamation – Temporary Closure of Oyster Restoration Areas in Galveston Bay and Matagorda Bay – Request Permission to Publish Proposed Changes in the Texas Register – Emma Clarkson
- Chronic Wasting Disease Detection and Response Rules – Containment and Surveillance Zone Boundaries – Request Permission to Publish Proposed Changes in the Texas Register – Mitch Lockwood
- Acquisition of Land – Somervell County – Approximately 106 Acres at Dinosaur Valley State Park – Trey Vick (Work Session and Executive Session) (Action Item No. 7)
- Grant of Utility Easement – Galveston County – Approximately 0.1 Acre at Galveston Island State Park – Jason Estrella (Work Session and Executive Session) (Action Item No. 8)
- Grant of Interagency Easement – Jefferson County – Approximately 21 Acres for Water Control Infrastructure at the J.D. Murphree Wildlife Management Area – Jason Estrella (Work Session and Executive Session) (Action Item No. 9)
- Grant of Pipeline Easement – Orange County – Approximately 5 Acres at the Lower Neches Wildlife Management Area – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 10)
- Land Conservation Strategy – Southeast Hill Country – James Murphy, Ted Hollingsworth (Executive Session Only)
- Litigation Update – James Murphy (Executive Session Only)
- Oysters
- Chronic Wasting Disease
- Red Snapper
Land and Water Plan
Financial
Natural Resources
Land Conservation
Executive Session
Work Session Item No. 1
Presenter: Carter Smith
Work Session
Update on the Texas Parks and Wildlife Department’s Progress
in Implementing the Texas Parks and Wildlife Department Land and
Water Resources Conservation and Recreation Plan
May 26, 2021
I. Executive Summary: Executive Director Carter Smith will briefly update the Texas Parks and Wildlife Commission (Commission) on the status of Texas Parks and Wildlife Department’s (TPWD) efforts to implement the Land and Water Resources Conservation and Recreation Plan (plan).
II. Discussion: In 2001, the 77th Texas Legislature directed that TPWD develop a Land and Water Resources Conservation and Recreation Plan (Texas Parks and Wildlife Code section 11.104). In 2002, the Commission adopted the first plan. A revised plan was adopted by the Commission in January 2005. In November 2009, the Commission approved a new plan, effective January 1, 2010, that included broad input from stakeholders and the general public. Minor revisions continue to be made to the plan. The 2015 version of the plan is available on the TPWD website. Executive Director Carter Smith will update the Commission on TPWD’s recent progress in achieving the plan’s goals, objectives, and deliverables.
The plan consists of the following four goals:
- Practice, Encourage, and Enable Science-Based Stewardship of Natural and Cultural Resources
- Increase Access to and Participation in the Outdoors
- Educate, Inform, and Engage Texas Citizens in Support of Conservation and Recreation
- Employ Efficient, Sustainable, and Sound Business Practices
Work Session Item No. 2
Presenters: Carter Smith
James Murphy
Work Session
Legislative Update – Request Permission to Publish Proposed Rules
Needed to Implement Legislation Passed During the 87th Texas Legislature
May 26, 2021
I. Executive Summary: Executive Director Carter Smith and General Counsel James Murphy will present an update regarding the 87th Texas Legislature.
II. Discussion: Executive Director Carter Smith will update the Texas Parks and Wildlife Commission on the deliberations of the Conference Committee on Appropriations and other major legislative issues and initiatives impacting the Texas Parks and Wildlife Department. In addition, permission will be requested to publish proposed rules in the Texas Register that may be required to implement legislation enacted by the 87th Texas Legislature.
Work Session Item No. 3
Presenter: Reggie Pegues
Work Session
Financial Overview
May 26, 2021
I. Executive Summary: The staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD).
II. Discussion: The staff will update the Texas Parks and Wildlife Commission on state park, boat registration/titling, and license fee revenues collected by TPWD for Fiscal Year (FY) 2021 and will summarize recent budget adjustments for FY 2021.
Work Session Item No. 4
Presenter: Brandy Meeks
Work Session
Internal Audit Update
May 26, 2021
I. Executive Summary: The staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2020 and 2021 Internal Audit Plans and ongoing or completed external audits.
II. Discussion: The staff will provide an update on the TPWD FY 2020 and 2021 Internal Audit Plans, as well as a briefing of any external audits that have been recently completed or are ongoing.
Work Session Item No. 9
Presenter: Emma Clarkson
Work Session
Statewide Oyster Fishery Proclamation
Temporary Closure of Oyster Restoration Areas in Galveston Bay and Matagorda Bay
Request Permission to Publish Proposed Changes in the Texas Register
May 26, 2021
I. Executive Summary: With this item, the staff seeks permission to publish proposed changes to the Statewide Oyster Fishery Proclamation in the Texas Register for public comment. The proposed amendment would close several restoration sites in Galveston Bay and Matagorda Bay for two harvest seasons in order to conduct oyster habitat restoration activities and allow oysters to repopulate these areas and reach market size.
II. Discussion: Under Texas Parks and Wildlife Code §76.301, the Texas Parks and Wildlife Commission (Commission) is authorized to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters. Additionally, Texas Parks and Wildlife Code §76.115 authorizes the Texas Parks and Wildlife Department (TPWD) to close an area to the taking of oysters when the Commission finds that the area is being overworked, damaged, or the area is to be reseeded or restocked.
Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (like Hurricane Ike in September 2008 and Hurricane Harvey in August 2017), as well as high harvest pressure. TPWD’s oyster habitat restoration efforts to date have resulted in a total of approximately 1,640 acres of oyster habitat returned to productive habitat within Texas bays. The proposed closures are expected to result in the restoration of approximately 120 acres of productive oyster habitat.
Attachment – 1
Work Session Item No. 9
Exhibit A
STATEWIDE OYSTER FISHERY PROCLAMATION
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.
The proposed amendment would prohibit the harvest of oysters for two years within the boundary of the restoration area on four reefs: two sites in Conditionally Approved Area TX-6 in Galveston Bay (Dollar Reef and North Todd’s Dump, approximately 50 and 65 acres, respectively), one site in Conditionally Approved Area TX-1 in Galveston Bay (Pepper Grove Reef - Middle Site, 2 acres), and one site in Approved Area TX-18 at the mouth of Keller Bay in the Matagorda Bay system (Keller Bay Reefs, 82 acres). The proposed amendment would temporarily close a total of 199 acres of oyster reef for two years. The Texas Department of State Health Services (DSHS) regulates shellfish sanitation and designates specific areas where oysters may be harvested for human consumption. The designation of "Conditionally Approved" or "Approved" is determined by DSHS.
The temporary closures will allow for the planting of oyster cultch to repopulate in those areas and enough time for those oysters to reach legal size for harvest. Oyster cultch is the material to which oyster spat (juvenile oysters) attach in order to create an oyster bed.
Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked. Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (Hurricane Ike, September 2008 and Hurricane Harvey, August 2017), as well as high harvest pressure. The department’s oyster habitat restoration efforts to date have resulted in a total of approximately 1,640 acres of oyster habitat returned to productive habitat within these bays.
House Bill 51 (85th Legislature, 2017) included a requirement that certified oyster dealers re-deposit department-approved cultch materials in an amount equal to thirty percent of the total volume of oysters purchased in the previous license year. For the 2021 — 2022 fiscal years, the department anticipates this requirement will result in the restoration of approximately 47 acres. Funds and materials generated from House Bill 51 are expected to be used to restore up to 35.6 acres on Todd’s Dump Reef and up to 20 acres on Keller Bay Reefs in 2021-2022.
Following Hurricane Harvey in 2017, the National Marine Fisheries Service (NMFS) awarded the Texas Parks and Wildlife Department over $13 million of fisheries disaster relief funding that was appropriated by Congress under the Bipartisan Budget Act of 2018 (P.L. 115-123). The notification to the governor of Texas from National Marine Fisheries Service (NMFS) stated that funds should be spent to “strengthen the long-term economic and environmental sustainability of the fishery” and over $4 million was dedicated specifically to oyster restoration activities. A portion of these funds, combined with funding generated by House Bill 51 (85th Texas Legislature, 2017) and the Shell Recovery Program (82nd Texas Legislature, 2011), will be used to restore up to 120 acres of oyster habitat in Galveston and Matagorda bay systems in 2021-2022. Within Matagorda Bay system, oyster habitats will be restored within an 82-acre area on Keller Bay reefs. Within the Galveston Bay system, oyster habitats will be restored in a 50-acre area on Dollar Reef and a 65-acre area on North Todd’s Dump reef. In addition, the Coastal Conservation Association has donated funding to restore a 2-acre area on Pepper Grove reef (“Pepper Grove Reef – Middle Site) during this large restoration event. Oyster abundance on these reefs has severely declined over time; average oyster abundance on these reefs is 50- 75% less than the average oyster abundance on other reefs in the Matagorda Bay and Galveston Bay systems. The portion of the reefs selected for restoration is characterized by degraded substrates. The restoration activities will focus on establishing stable substrate and providing suitable conditions for spat settlement and oyster bed development.
2. Fiscal Note.
Dakus Geeslin, Science and Policy Branch Chief, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.
3. Public Benefit/Cost Note.
Mr. Geeslin also has determined that for each of the first five years that the rule as proposed is in effect, the:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state; the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens; the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices; the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach legal size and subsequent recreational and commercial harvest; and providing protection from harvest to a reef complex thus establishing a continual supply of oyster larvae to colonize oyster habitat within the bay system.
(B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that because the areas designated for closure have been degraded to the extent that they no longer support any commercial exploitation, the closures effected by the proposed rule will not result in direct adverse economic impacts to any small business, microbusiness, or rural community. The department does note, however, that numerous areas previously closed (South Redfish Reef, Texas City 1, Texas City 2, Hanna’s Reef, and Middle Reef), are now home to healthy populations of oysters that have reached legal size and may be harvested by both recreational and commercial users.
There will be no adverse economic effect on persons required to comply with the rule as proposed.
(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.
(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.
(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.
(F) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.
(G) The department has determined that the proposed rules is in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).
(H) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will:
(1) neither create nor eliminate a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of any fee;
(5) not create a new regulation;
(6) will expand an existing regulation (by creating new area closures);
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Dr. Tiffany Hopper, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650; email: tiffany.hopper@tpwd.texas.gov, or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters, and §76.115, which authorizes the commission to close an area to the taking of oysters when the area is to be reseeded or restocked.
The proposed amendment affects Parks and Wildlife Code, Chapter 76.
6. Rule Text.
§58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.
(a) — (b) (No change.)
(c) Area Closures.
(1) (No change.)
(2) No person may take or attempt to take oysters within an area described in this paragraph. [The provisions of subparagraphs (A)(i) -(ii), (B), and (C) of this paragraph cease effect on November 1, 2021.] The provisions of subparagraphs (A)(i)-(v) and (C)[(A)(iii) — (vii), (D) and (E)] of this paragraph cease effect on November 1, 2022. The provisions of subparagraphs (A)(vi) – (viii) and (B) cease effect on November 1, 2023.
(A) Galveston Bay.
[(i) Todd’s Dump Reef. The area within the boundaries of a line beginning at 29° 29’ 55.4"N, 94° 53’ 40.1"W (29.498733°N, -94.894467°W; corner marker buoy A); to 29° 29’ 55.4"N, 94° 53’ 30.6"W (29.498724°N, -94.891834°W; corner marker buoy B); thence to 29° 29’ 46.6"N, 94° 53- 30.4"W (29.496273°N, -94.891768°W; corner marker buoy C); thence to 29° 29’ 46.6"N, 94° 53’ 40.2"W (29.496273°N, -94.894495°W; corner marker buoy D); and thence back to corner marker buoy A.]
[(ii) Pasadena Reef. The area within the boundaries of a line beginning at 29° 28’ 21.1"N, 94° 49’ 17.3"W (29.472517°N, -94.821472°W; corner marker buoy A); thence, to 29° 28’ 08.3"N, 94° 49’ 00.3"W (29.468971°N, -94.816744°W; corner marker buoy B); thence to 29° 27’ 58.9"N, 94° 49’ 09.7"W (29.466359°N, -94.81935°W; corner marker buoy C); thence to 29° 28’ 12.0"N, 94° 49’ 26.5"W (29.469989N, -94.824025°W; corner marker buoy D); and thence and back to corner marker buoy A.]
(i)[(iii)] Pepper Grove Reef. The area within the boundaries of a line beginning at 29° 29’ 14.7"N, 94° 40’ 01.0"W (29.487421°N, -94.666944°W; corner marker buoy A); thence, to 29° 29’ 14.8"N, 94° 39’ 52.3"W (29.48745°N, -94.664525°W; corner marker buoy B); thence to 29° 29’ 08.1"N, 94° 39’ 52.2"W (29.485596°N, -94.664497°W; corner marker buoy C); thence to 29° 29’ 08.0"N, 94° 40’ 00.9"W (29.485567°N, -94.666915°W; corner marker buoy D); and thence back to corner marker buoy A.
(ii)[(iv)] Resignation Reef. The area within the boundaries of a line beginning at 29° 28’ 54.3"N, 94° 52’ 23.6"W (29.481741°N, -94.873234°W; corner marker buoy A); thence, to 29° 28’ 49.3"N, 94° 52’ 35.4"W (29.480370°N, -94.876513°W; corner marker buoy B); thence to 29° 28’ 39.5"N, 94° 52’ 27.5"W (29.477627°N, -94.874316°W; corner marker buoy C); thence to 29° 28’ 47.7"N, 94° 52’ 18.1"W (29.479921°N, -94.871687°W; corner marker buoy D); and thence back to corner marker buoy A.
(iii)[(v)] Trinity Sanctuary Reef. The area within the boundaries of a line beginning at 29° 38’ 26.2"N, 94° 51’ 53.1"W (29.640616°N, -94.864753°W; corner marker buoy A); thence, to 29° 38’ 22.9"N, 94° 51’ 48.7"W (29.639701°N, -94.863539°W; corner marker buoy B); thence to 29° 38’ 17.9"N, 94° 51’ 49.8"W (29.638304°N, -94.863857°W; corner marker buoy C); thence to 29° 38’ 13.2"N, 94° 51’ 50.1"W (29.636994°N, -94.863926°W; corner marker buoy D); thence to 29° 38’ 10.1"N, 94° 51’ 53.2"W (29.636131°N, -94.864777°W; corner marker buoy E); thence to 29° 38’ 17.1"N, 94° 52’ 01.3"W (29.638092°N, -94.867041°W; corner marker buoy F); and thence back to corner marker buoy A.
(iv)[(vi)] Trinity Harvestable Reef 1. The area within the boundaries of a line beginning at 29° 38’ 56.2"N, 94° 51’ 34.4"W (29.648936°N, -94.859552°W; corner marker buoy A); thence, to 29° 38’ 58.8"N, 94° 51’ 29.5"W (29.649673°N, -94.858202°W; corner marker buoy B); thence to 29° 38’ 55.4"N, 94° 51’ 27.1"W (29.648733°N, -94.857531°W; corner marker buoy C); thence to 29° 38’ 56.7"N, 94° 51’ 24.8"W (29.649075°N, -94.856906°W; corner marker buoy D); thence to 29° 38’ 50.5"N, 94° 51’ 20.5"W (29.647369°N, -94.855690°W; corner marker buoy E); thence to 29° 38’ 46.8"N, 94° 51’ 27.7"W (29.646345°N, -94.857704°W; corner marker buoy F); and thence back to corner marker buoy A.
(v)[(vii)] Trinity Harvestable Reef 2. The area within the boundaries of a line beginning at 29° 36’ 47.0"N, 94° 52’ 23.7"W (29.613063°N, -94.873269°W; corner marker buoy A); thence, to 29° 36’ 37.2"N, 94° 52’ 22.9"W (29.610327°N, -94.873046°W; corner marker buoy B); thence to 29° 36’ 36.7"N, 94° 52’ 31.1"W (29.610187°N, -94.875306°W; corner marker buoy C); thence to 29° 36’ 46.5"N, 94° 52’ 31.9"W (29.612924°N, -94.875529°W; corner marker buoy D); and thence back to corner marker buoy A.
(vi) Dollar Reef. The area within the boundaries of a line beginning at 29° 27’ 30.44" N, 94° 52’ 03.23" W (29.458456 oN, -94.867565oW, corner marker buoy A); thence, to 29° 27’ 32.83" N , 94° 51’ 59.91" W (29.459121oN, -94.866643oW, corner marker buoy B); thence, to 29° 27’ 29.13" N, 94° 51’ 52.67" W (29.458094oN, -94.864632oW, corner marker buoy C); thence, to 29° 27’ 15.67" N, 94° 51’ 53.44" W (29.454535oN, -94.864846oW, corner marker buoy D); thence, to 29° 27’ 04.04" N , 94° 52’ 08.47" W (29.451124oN, -94.869021oW, corner marker buoy E) ; and thence back to corner marker buoy A.
(vii) North Todd’s Dump Reef. The area within the boundaries of a line beginning at 29° 30’ 33.76" N , 94° 53’ 17.07" W (29.509379oN, -94.888077oW, corner marker buoy A); thence, to 29° 30’ 27.89" N , 94° 53’ 44.39" W (29.507749oN, -94.895666oW, corner marker buoy B); thence, to 29° 30’ 17.10" N, 94° 53’ 41.73" W (29.504752oN, -94.894926oW, corner marker buoy C); thence, to 29° 30’ 23.60" N, 94° 53’ 12.46" W (29.506556oN, -94.886797oW, corner marker buoy D); and thence back to corner marker buoy A.
(viii) Pepper Grove Reef – Middle Site. The area within the boundaries of a line beginning at 29° 29’ 15.83" N , 94° 40’ 01.01" W (29.487733oN, -94.666948oW, corner marker buoy A); thence, to 29° 29’ 15.93" N , 94° 39’ 52.30" W (29.487760oN, -94.66453oW, corner marker buoy B); thence, to 29° 29’ 14.81" N , 94° 39’ 52.28" W (29.487450oN, -94.664525oW, corner marker buoy C); thence, to 29° 29’ 14.71" N , 94° 40’ 00.99" W (29.487422oN, -94.666944oW, corner marker buoy D) ; and thence back to corner marker buoy A.
(B) Matagorda Bay System – Keller Bay Reefs. The area within the boundaries of a line beginning at 28o 36’ 16.7” N, 96o 28’ 29.042” W (28.604656oN, -96.474734oW, corner marker buoy A); thence, from 28o 26’ 16.7” N, 96o28’ 40.933” W(28.604659oN, -96.478037oW, corner marker buoy B); thence, from 28o 36’ 5.31”N, 96o 28’ 48.95” W (28.601476oN, -96.480265oW, corner marker buoy C); thence, from 28o 35’ 56.2” N, 96o 28’, 39.94” W (28.598953oN, -96.477761oW, corner marker buoy D); thence, from 28o 35’ 55.9” N, 96o 28’ 21.9” W (28.598886oN , -96.47275oW, corner marker buoy E); and thence back to corner marker buoy A.[Noble Point Reef. The area within the boundaries of a line beginning at 28° 39’ 38.79"N, -96° 36’ 33.68"W (28.660774°N, -96.609355°W); thence to 28° 39’ 38.79"N, -96° 36’ 29.15"W (28.660774°N, -96.608098°W); thence to 28° 39’ 33.38"N, -96° 36’ 33.68"W (28.659270°N, -96.609355°W); thence to 28° 39’ 33.38"N, -96° 36’ 29.15"W (28.659270°N, -96.608098°W).]
[(C) Copano Bay.]
[(i) Sanctuary Reef. The area within the boundaries of a line beginning at 28° 8’ 33.82"N, -97° 3’ 6.47"W (28.142728°N, -97.051796°W; corner marker buoy A); thence to 28° 8’ 34.5"N, -97° 3’ 24.18"W (28.142917°N, -97.056718W; corner marker buoy B); thence to 28° 8’ 31.39"N, -97° 3’ 29.1"W (28.142052°N, -97.058085°W; corner marker buoy C); thence to 28° 8’ 23.32"N, -97° 3’ 29.09"W (28.139812°N, -97.058081°W; corner marker buoy D); thence to 28° 8’ 20.78"N, -97° 3’ 26.77"W (28.139106°N, -97.057435°W; corner marker buoy E); and thence back to corner marker A.]
[(ii) Non-Sanctuary Reef. The area within the boundaries of a line beginning at 28° 8’ 23.23"N, -97° 2’ 53.02"W (28.139785°N, -97.048062°W; corner marker buoy A); thence to 28° 8’ 24.76"N, -97° 3’ 4.99"W (28.14021°N, -97.051387°W; corner marker buoy B); thence to 28° 8’ 12.98"N, -97° 3’ 6.69"W (28.136938°N, -97.051859°W; corner buoy C); thence to 28° 8’ 8.61"N, -97° 2’ 52.48"W (28.135726°N, -97.047912°W; corner buoy D); and thence back to corner marker A.]
(C)[(D)] Aransas Bay- Grass Island Reef. The area within the boundaries of a line beginning at 28° 06’ 17.9"N, 97° 00’ 25.6"W (28.104990°N, -97.007128°W; corner marker buoy A); thence, to 28° 06’ 06.1"N, 97° 00’ 12.7"W (28.101691°N, -97.003527°W; corner marker buoy B); thence to 28° 06’ 20.45"N, 96° 59’ 55.9"W (28.105682°N, -96.998876°W; corner marker buoy C); thence to 28° 06’ 32.3"N, 97° 00’ 08.9"W (28.108981°N, -97.002476°W; corner marker buoy D); and thence back to corner marker buoy A.
(D)[(E)] Christmas Bay, Brazoria County.
(E)[(F)] Carancahua Bay, Calhoun and Matagorda County.
(F)[(G)] Powderhorn Lake, Calhoun County.
(G)[(H)] Hynes Bay, Refugio County.
(H)[(I)] St. Charles Bay, Aransas County.
(I)[(J)] South Bay, Cameron County.
(J)[(K)] Areas along all shorelines extending 300 feet from the water’s edge, including all oysters (whether submerged or not) landward of this 300-foot line.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on
Work Session Item No. 10
Presenter: Mitch Lockwood
Work Session
Chronic Wasting Disease Detection and Response Rules – Containment and Surveillance Zone Boundaries – Request Permission to Publish Proposed Changes in the Texas Register
May 26, 2021
I. Executive Summary: With this item, the staff seeks permission to publish proposed amendments to rules establishing disease management zones for the control of Chronic Wasting Disease (CWD) in the Texas Register for public comment. The proposed amendments would:
- Create a new Containment Zone (CZ) and Surveillance Zone (SZ) in portions of Lynn, Lubbock, Garza, and Crosby counties in response to the discovery of CWD in a free-ranging mule deer;
- Create a new SZ in portions of Hunt, Kaufman, Rockwall, and Van Zandt counties in response to the discovery of CWD in a deer breeding facility; and
- Create a new SZ in Uvalde County in response to the discovery of CWD in multiple deer in a deer breeding facility.
II. Discussion: On February 26, 2021, the Texas Parks and Wildlife Department (TPWD) received confirmation that a free-ranging mule deer in the Texas Panhandle had tested positive for CWD. On March 29, 2021, TPWD received confirmation that a 2.5-year-old white-tailed doe in a deer breeding facility in Hunt County and multiple white-tailed deer (four bucks and one doe, ranging from 1.5 years of age to 3.5 years of age) within a deer breeding facility in Uvalde County had tested positive for CWD. The proposed rules would establish a new CZ and new SZs in response to those discoveries, as appropriate. The TPWD staff notes that epidemiological investigations of movements into and out of the affected deer breeding facilities are ongoing and that additional zone designations are possible and will be discussed at the time of the Texas Parks and Wildlife Commission meeting if necessary.
Attachment – 1
Work Session Item No. 10
Exhibit A
DISEASE DETECTION AND RESPONSE RULES
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes amendments to 31 TAC §65.81 and §65.82, concerning Disease Detection and Response. The proposed amendments would establish one containment zone (CZ) and three surveillance zones (SZ) as a result of the discovery of CWD-positive deer in various parts of the state.
Chronic wasting disease (CWD) is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (referred to collectively as susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle and commonly known as “Mad Cow Disease”), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.
Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. What is known is that CWD is invariably fatal to certain species of cervids, and is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion-dollar ranching, hunting, wildlife management, and real estate economies could be significant.
The department has engaged in several rulemakings over the years to address the threat posed by CWD, including rules to designate a system of zones in areas where CWD is confirmed, within which the possession and movement of live deer under department permits is restricted and harvested deer are required to be presented at check stations to be tested for CWD.
On February 26, 2021, the department received confirmation that a free-ranging mule deer in the Texas Panhandle had tested positive for CWD. On March 29, 2021, the department received confirmation that a 2.5-year-old white-tailed doe in a deer breeding facility in Hunt County and multiple white-tailed deer (four male, one female, ranging from 1.5 years of age to 3.5 years of age) within a deer breeding facility in Uvalde County had tested positive for CWD. The proposed rules would establish a new CZ and new SZs in response to those discoveries.
The proposed amendment to §65.81, concerning Containment Zones; Restrictions, would create new CZ 5 in a portion of Lubbock County. A CZ is a specific location in which CWD has been detected or the department has determined, using the best available science and data, that CWD detection is probable. With respect to the CZ that would be established by this rulemaking, the department assumes the highest probability of additional detection exists within approximately a five-mile radius from the approximate location where CWD is detected in a free-ranging deer. Although the CZ designation imposes mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer, it is not necessary for hunters to be aware of or concerned with CZ boundaries, since the CZ is wholly within an SZ where mandatory check station requirements and deer carcass movement restrictions for hunter-harvested deer also apply. This rulemaking does not create a CZ in response to the discovery of CWD-positive deer in deer breeding facilities in Hunt or Uvalde counties because deer breeding facilities are required by law to be designed and built to both prevent the free movement of deer and contact with free-ranging deer, which is imperative for the control and management of CWD and affords some confidence that CWD within such facilities is contained within those facilities. Second, deer breeding facilities where CWD was discovered are operating under a Texas Animal Health Commission quarantine which restricts deer movement, and are subject to a herd plan that requires CWD testing at an equal or higher level to what is required in a CZ.
The proposed amendment to §65.82, concerning Surveillance Zones; Restrictions, would create new SZ 6 in portions of Lynn, Lubbock, Crosby, and Garza counties, a new SZ 7 in Uvalde County, and a new SZ 8 in portions of Hunt, Rockwall, Kaufman, and Van Zandt counties. An SZ is a department-defined geographic area in this state within which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected. The SZ in the Texas Panhandle is a buffer around proposed new CZ 5; the other SZs created by this rulemaking would be smaller because the detections triggering their creation occurred in deer breeding facilities (a confined herd).
Within CZs and SZs, the movement of live deer is restricted and presentation of harvested deer at department check stations is mandatory. In addition, deer carcass movement restrictions set forth in §65.88 of Subchapter B, Division 1 apply to deer harvested within a CZ or SZ. The boundaries of proposed the new CZs and SZs have been tailored to as much as possible follow recognizable features such as roadways, water bodies, and county boundaries, and the department notes that any designation of a CZ or SZ is always accompanied by a robust public awareness effort.
2. Fiscal Note.
John Silovsky, Wildlife Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of disease management activities will administer and enforce the rules as part of their current job duties and resources.
3. Public Benefit/Cost Note.
Mr. Silovsky also has determined that for each of the first five years the amendments as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be a reduction of the probability of CWD being spread from locations where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.
(B) There could be adverse economic impact on persons required to comply with the rules as proposed. Such impacts would be identical to those described in the analysis of the rules’ potential effect on small businesses, microbusinesses, and rural communities elsewhere in this preamble.
(C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.
For the purposes of this analysis, the department considers all deer breeders to be small or microbusinesses, which ensures that the analysis captures all deer breeders possibly affected by the proposed rulemaking. The department has determined that proposed rules will affect three deer breeders, one in proposed SZ 7 and two in proposed SZ 8. Of those three facilities, the two within proposed SZ 8 hold Transfer Category (TC 1) status, while the facility within proposed SZ 7 holds TC 2 status.
Under current rules, deer in a TC 1 facility located within in a SZ may be transferred to any lawful receiver; therefore, neither facility would be affected by the proposed amendments, although one of those facilities has been designated Non Movement Qualified (NMQ) as a result of receiving deer directly from another facility where CWD has been detected and is therefore prohibited from receiving or transferring deer under other department rules in Chapter 65, Subchapter B.
Under current rules a TC 2 facility located within in a SZ may receive deer from any facility in the state that is authorized to transfer deer and may transfer deer to a breeding facility or release site that is within the same SZ, but is prohibited from transferring deer to any facility outside of the SZ. Therefore, the breeding facility in proposed SZ 7 would be affected by the creation of the SZ if the breeder desires to transfer deer to or receive deer from facilities outside the SZ.
The department does not require deer breeders to report financial information such as sales volume, income, or pricing; thus, it is impossible for the department to estimate the value of such lost sales, although based on anecdotal reports it could be anywhere from many hundreds of dollars to several thousand dollars. The adverse economic impact to the affected breeder would consist of the loss of any sales to deer breeders or release sites outside the SZ. The department notes, however, that because deer breeders are required to report the sites where breeder deer are released or transferred, it is possible to estimate adverse economic impacts on the basis of individual breeders’ transfer history, which in this case indicate that the affected permittee has transferred seven deer during the life of the permit, with the last transfer into the facility occurring in 2014 and last transfer out of the facility occurring in 2015. Based on the historical average of fewer than one deer transfer per year, the length of time since the last transfer, and low total number of transfers, the department estimates (using anecdotal information concerning breeder deer sales values) lost sales to the affected permittee, if any, of somewhere between $5,000 and $10,000 per year as a result of the proposed amendments. However, the department also notes that the affected breeding facility can take advantage of testing options available under current rules that would allow it to attain TC 1 status, in which case the transfer of deer to destinations outside the SZ would be allowed.
In the development of the proposed rules the department considered several alternatives to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.
One alternative was to do nothing. This alternative was rejected because the discovery of CWD within five miles of another facility increases the concern that CWD may have escaped containment. Therefore, because the department has a statutory duty to protect and conserve the wildlife resources of the state, doing nothing would not only be contrary to the goal of the rule, but would constitute abnegation of the department’s statutory duty.
Another alternative considered was to allow TC 2 facilities within a SZ that are MQ but not epidemiologically connected to the positive facility to continue to transfer deer out of the SZ. While this alternative would reduce potential negative economic impacts, it would also have the effect of significantly increasing the potential for the spread of CWD from the SZ, which, as noted previously in this preamble, is an area in which the department has determined, using the best available science and data, that the presence of CWD could reasonably be expected.
The department also considered allowing TC 2 facilities within a SZ that are MQ to transfer deer out of the SZ following some sort of live animal testing at appropriate intervals. This alternative was rejected because the department determined that it would be more problematic and expensive than performing the testing necessary under current rules to achieve TC 1 status.
The department has determined that the proposed rules will not affect rural communities.
(D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not result in direct impacts to local economies.
(E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
(F) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed new rules. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rules.
(G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will:
(1) neither create nor eliminate a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of any fee;
(5) not create a new regulation;
(6) expand an existing regulation (by creating new areas subject to the rules governing CZs and SZs), but will otherwise not limit or repeal an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Mitch Lockwood, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 792-9677 (e-mail: mitch.lockwood@tpwd.texas.gov); or via the department’s website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; Subchapters R and R-1, which authorize the commission to establish the conditions of a deer management permit for white-tailed and mule deer, respectively; and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.
The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.
6. Rule Text.
§65.81. Containment Zones; Restrictions. The areas described in paragraph (1) of this section are CZs.
(1) Containment Zones.
(A) – (D) (No change.)
(E) Containment Zone 5: That portion of the state within the boundaries of a line beginning at the intersection of County Road (C.R.) 3600 and E. Division St. in Slaton in Lubbock County; thence west along E Division St. to S. New Mexico St.; thence northwest along S. New Mexico St. to Railroad Ave.; thence northwest along Railroad Ave. to Industrial Dr.; thence northwest along Industrial Dr.to U.S. Highway (U.S.) 84; thence northwest along U.S. 84 to State Highway (S.H.) Spur 331; then northwest along S.H. 331 to S.H. Loop 289; thence north along S.H. Loop 289 to Farm to Market (F.M.) 40 ; thence east along FM 40 to C.R. 3650; thence south along C.R. 3650 to C.R. 6840; thence east along C.R. 6840 to C.R. 3700; thence south along C.R. 3700 to C.R. 3600; thence south along C.R. 3600 to E. Division St.
(F)[(E)] Existing CZs may be modified and additional CZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).
(2) (No change.)
§65.82. Surveillance Zones; Restrictions. The areas described in paragraph (1) of this section are SZs.
(1) Surveillance Zones.
(A) – (E) (No change.)
(F) Surveillance Zone 6: That portion of the state within the boundaries of a line beginning at the intersection of State Highway (S.H.) 207 and Farm to Market (F.M.) 211 in Garza County; thence west along F.M. 211 to U.S. Highway (U.S.) 87 in Lynn County; thence north along U.S. 87 to F.M. 41 in Lubbock County; thence west along FM 41 to F.M. 179; thence north along F.M. 179 to F.M. 2641; thence east along F.M. 2641 to U.S. 62/82; thence east along U.S. 62/82 to S.H. 207 in Crosby County; thence south along S.H. 207 to F.M. 211 in Garza County.
(G) Surveillance Zone 7: SZ 7 That portion of the state lying within the boundaries of a line beginning at the intersection of U.S. 90 and the Dry Frio River in Uvalde County; thence west along U.S. 90 to U.S. 83; thence north along U.S. 83 to S.H. 55; thence northwest along S.H. 55 to Indian Creek Road; thence northeast along Indian Creek Road (private road) to Lower Frio Ranch Road (private road); thence southeast along Lower Frio Ranch Road to Deep Creek; thence southeast along Deep Creek to the confluence of Deep Creek and the Dry Frio River; thence south along the Dry Frio River to U.S. 90.
(H) Surveillance Zone 8: That portion of the state lying within the boundaries of a line beginning at the intersection of S.H. 205 and US Hwy. 80 in Kaufman County; thence east along U.S. 80 to North 4th Street in Wills Point in Van Zandt County; thence north along North 4th Street to F.M. 751; thence north along F.M. 751 to the south shoreline of Lake Tawakoni in Hunt County; thence west and north along the Lake Tawakoni shoreline to the confluence of Caddo Creek; thence northwest along Caddo Creek to West Caddo Creek; thence northwest along West Caddo Creek to I.H. 30; thence southwest along I.H. 30 to F.M. 548 in Rockwall County; thence southeast along F.M. 548 to S.H. 205 in Kaufman County; thence southeast along S.H. 205 to US Hwy. 80.
(I)[(F)] Existing SZs may be modified and additional SZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).
(2) (No change.)
This agency hereby certifies the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on
Work Session Item No. 15
Presenters: James Murphy
Ted Hollingsworth
Work Session
Land Conservation Strategy – Southeast Hill Country
May 26, 2021
I. Executive Summary: The Texas Parks and Wildlife Department (TPWD) proposes to protect sensitive habitat in the Southeast Texas Hill Country by the strategic acquisition and conservation of land. The TPWD staff is working closely with several private sector partners on a strategy to acquire land that will protect sensitive habitat in the Southeast Texas Hill Country. The staff will discuss potential real estate acquisitions with the Texas Parks and Wildlife Commission.
Work Session Item No. 16
Presenter: James Murphy
Work Session
Litigation Update
May 26, 2021
I. Executive Summary: Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Texas Parks and Wildlife Commission regarding pending or anticipated litigation, including but not limited to the following pending lawsuits:
- Potential or pending litigation related to oysters, including but not limited to State of Texas v. Chambers-Liberty Counties Navigation District, Each in his Official Capacity: Terry Haltom as CLCND Commissioner, Allen Herrington as CLCND Commissioner, Kenn Coleman as CLCND Commissioner, Ken Mitchell as CLCND Commissioner, and Dave Wilcox as CLCND Commissioner, and Sustainable Texas Oyster Resources Management, LLC., Cause No. D-1-GN-15-003093, in Travis County District Court.
- Potential or pending litigation regarding disease in white-tailed deer, including but not limited to Ken Bailey and Bradly Peterson v. Carter Smith, Executive Director, Clayton Wolf, Wildlife Division Director, Mitch Lockwood, Big Game Program Director and Texas Parks and Wildlife Department, Cause No. D-1-GN-15-004391, in Travis County District Court.
- Potential or pending litigation related to red snapper, including but not limited to State of Texas v. U.S. Department of Commerce, Civil Action No. 3:20-cv-00297, in United States District Court, Southern District of Texas, Galveston Division.