Commission Agenda Item No. 8
Exhibit A

ZEBRA MUSSEL RULES

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §57.972, concerning General Rules. The proposed amendment would add Lake Ray Roberts and Lake Lewisville to the list of water bodies where special regulations intended to control the spread of zebra mussels (Dreissena polymorpha) are in effect.

         The zebra mussel is a small, non-native mussel originally found in Eurasia. It has spread throughout Europe, where it is considered to be a major environmental and industrial menace. The animal appeared in North America in the late 1980s and within ten years had colonized in all five Great Lakes and the Mississippi, Tennessee, Hudson, and Ohio river basins. Since then, they have spread to additional lakes and river systems.

         Zebra mussels live and feed in many different aquatic habitats, breed prolifically, and cannot be controlled by natural predators. Adult zebra mussels colonize all types of living and non-living surfaces including boats, water-intake pipes, buoys, docks, piers, plants, and slow-moving animals such as native clams, crayfish, and turtles. The U.S. Fish and Wildlife Service has estimated the potential economic impact of zebra mussels to be in the billions of dollars.

         Zebra mussels affect natural ecosystems both directly and indirectly. The greatest direct impact relates to the mussel’s feeding behavior. Zebra mussels are filter feeders and each mussel can process up to one liter of water per day. During this process, particles in the water column are removed and either eaten by the mussels or coated in mucus and ejected. Unfortunately, the material removed from the water consists of other live animals and algae that supply food for larval fish and other invertebrates. In response to this changing food supply, indigenous populations of some animals decline and food webs are disturbed or eliminated. Once zebra mussels become established in a water body, they are impossible to eradicate with the technology available today.

         What makes zebra mussels particularly difficult to control is that they have a free-floating, microscopic larval stage called a veliger. Because young zebra mussels are so small, they are spread easily by water currents and can drift for miles before settling. After settling, the mussels attach to hard objects and remain stationary as they grow. They often attach to objects involved in human activities, such as boats and boat trailers, and are inadvertently moved from one water body to another by people. Any water collected from waterbodies where zebra mussels are present could contain veligers; thus, water transported from waterbodies with known zebra mussel populations is a vector for the spread of zebra mussels.

         The department earlier this year amended §57.972 to implement special regulations to control the spread of zebra mussels from the Red River and Lake Lavon. The adoption notice was published in the May 11, 2012, issue of the Texas Register (37 TexReg 3602).  Zebra mussels were confirmed in Lake Ray Roberts on July 17, 2012 and in the Elm Fork of the Trinity River upstream of Lake Lewisville on July 18, 2012. On July 30, 2012, the department filed an emergency rule to rule to address the discovery of zebra mussels in Lake Ray Roberts and the Elm Fork of the Trinity River. The emergency rule added those water bodies to the applicability of existing rules to control the spread of zebra mussels. The proposed amendment would supplant the emergency rule on a permanent basis.

          Under ordinary circumstances, the department would consider any person in possession of zebra mussels (including veligers) to be in violation of Chapter 57, Subchapter A, which prohibits the possession of exotic aquatic shellfish, including zebra mussels. The proposed amendment would provide that the department will not consider a person in possession of veligers to be in violation of the exotic species rules, provided all live wells, bilges, and other receptacles or systems capable of retaining or holding water as a consequence of being immersed in a waterbody have been completely drained prior to the use of a public roadway. The proposed amendment also would provide that a person traveling on a public roadway via the most direct route to another access point located on the same body of water would not be required to drain or empty water.

2. Fiscal Note.

          Mr. Ken Kurzawski, Program Director for Regulations and Information in the Inland Fisheries Division, has determined that for each of the first five years that the proposed amendment is in effect there will be no fiscal implications for the department as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

         Mr. Kurzawski also has determined that for each of the first five years that the proposed amendment is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the proposed amendment will be the protection of an important ecosystem enjoyed by the public.

         (B) 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 affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that there will be no adverse economic impacts on small businesses or microbusinesses as a result of the proposed amendment. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (C) The proposed amendment will not result in negative economic impacts to persons required to comply.

         (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 rule as proposed will not impact local economies.

         (E) The department has determined that Texas Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (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 rule, as the rule would not affect private real property.

4. Request for Public Comment.

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

5. Statutory Authority.

         The amendment is proposed under Parks and Wildlife Code, §66.007, which prohibits the possession or placement into public waters of exotic fish or shellfish except as authorized by rule or permit issued by the department.

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

6. Text.

         §57.972. General Rules.

                 (a) – (j) (No change.)

                 (k) A person who leaves a water body listed in this subsection while in possession of a harmful or potentially harmful species listed in §57.111 of this title (relating to Definitions) that is invisible to the unaided human eye is not in violation of §57.112 of this title (relating to General Rules), provided that:

                         (1) all live wells, bilges, and other similar receptacles and systems that are capable of retaining or holding water as a consequence of being immersed in a water body have been drained prior to the use of a public roadway; or

                         (2) the person is travelling on a public roadway via the most direct route to another access point located on the same body of water.

                         (3) This subsection applies to the following bodies of water:

                                  (A) the Red River from the I-44 bridge in Wichita County to the Texas/Arkansas border, including the Texas waters of Lake Texoma; [and]

                                  (B) Lake Lavon; and

                         (C) all impounded and tributary waters of the Elm Fork of the Trinity River above the Lewisville Dam, including Lake Lewisville and Lake Ray Roberts.

         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