Texas Parks and Wildlife Commission
Regulations Committee Meeting
November 8, 2000
Commission Hearing RoomTexas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744
1 BE IT REMEMBERED, that heretofore on the 8th day 6 of November 2000, there came on to be heard matters under the regulatory authority of the Parks and 7 Wildlife Commission of Texas, in the Commission Hearing Room of the Texas Parks and Wildlife Headquarters 8 Complex, Austin, Texas, beginning at 11:03 a.m., to wit: 9 10 APPEARANCES: THE PARKS AND WILDLIFE COMMISSION: 11 REGULATIONS COMMITTEE: 12 CHAIR: Lee M. Bass Carol E. Dinkins 13 Nolan Ryan, (Absent) Dick Heath, (Absent) 14 Ernest Angelo, Jr. John Avila, Jr., (Absent) 15 Alvin L. Henry Katharine Armstrong Idsal 16 Mark W. Watson, Jr., (Absent) 17 18 19 20 THE TEXAS PARKS AND WILDLIFE COMMISSION: Andrew H. Sansom, Executive Director, and other 21 personnel of the Parks and Wildlife Department 22 23 24 25 ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 2 1 REGULATIONS COMMITTEE 2 CHAIR BASS: I guess I need to bang the 3 gavel to start the meeting. 4 Okay. The regulations committee will 5 now convene, and the first order of business is 6 approval of the minutes from our previous meeting, 7 which have been distributed. 8 Do we have any comments? 9 COMMISSIONER ANGELO: I had a question 10 if I can find it here. 11 On the top of page 5, there's a sentence 12 that I don't think makes any sense. It says, 13 "Dr. McKinney provided Mr. Angelo an initial 14 question." 15 CHAIR BASS: That doesn't -- There's 16 something missing there. 17 DR. McKINNEY: I didn't hear you. 18 COMMISSIONER DINKINS: You provided 19 Mr. Angelo -- 20 COMMISSIONER ANGELO: He provided me 21 with a question or the answer. Which was it? 22 COMMISSIONER IDSAL: Good job. 23 COMMISSIONER ANGELO: I'm not sure what 24 that was supposed to be, but it doesn't look -- it 25 doesn't appear to be -- ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 3 1 COMMISSIONER DINKINS: An answer, 2 probably. 3 CHAIR BASS: Would you like to propose 4 an amendment to it, or should -- 5 COMMISSIONER ANGELO: Well, I don't 6 really know. I -- 7 CHAIR BASS: -- we strike the sentence? 8 COMMISSIONER ANGELO: You know, I 9 don't -- I think we could probably strike the sentence 10 in the meantime because it doesn't -- 11 CHAIR BASS: Let's strike it. Let's 12 strike -- 13 COMMISSIONER ANGELO: It's not -- 14 CHAIR BASS: Let's strike the 15 sentence -- 16 COMMISSIONER ANGELO: It's not 17 substantive so -- 18 CHAIR BASS: Yeah. 19 With that alteration -- 20 COMMISSIONER HENRY: Move approval. 21 CHAIR BASS: We have a motion. 22 COMMISSIONER IDSAL: Second. 23 CHAIR BASS: Second. 24 All in favor? Any opposed? Thank you. 25 (Motion carries unanimously.) ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 4 1 AGENDA ITEM NO. 1: BRIEFING-CHAIRMAN'S CHARGES. 2 CHAIR BASS: Andy, quick briefing on the 3 chairman's charges. 4 MR. SANSOM: Thank you, Mr. Chairman. 5 The coastal fisheries division has 6 submitted to the chairman a draft outline of the 7 proposed shrimp study, or study of the shrimp fishery, 8 that you-all directed us to do at the time of taking 9 action with respect to shrimp regulations in August. 10 Today you will consider the aquatic 11 vegetation management plan as we've been directed by 12 House Bill 3079. 13 We have an ongoing regulations review 14 which Gene will give you a briefing on today which will 15 result in about a 30-percent reduction in those 16 portions of the regulations which will be dealt with. 17 I'd like to call your attention to the 18 fact, Mr. Chairman, that we will be publishing, between 19 now and next meeting, some proposed exotic species 20 rules which would have the effect of adding the Apple 21 snail to the list of prohibited shellfish and other 22 purposes, and that will come before you for 23 consideration at your next meeting. 24 CHAIR BASS: Okay. 25 AGENDA ITEM NO. 2: ACTION-RULE REVIEW. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 5 1 CHAIR BASS: Next order of business is a 2 rule review. 3 Gene, if you'd do that for us. 4 MR. McCARTY: Mr. Chairman, 5 Commissioners, for the record, my name is Gene 6 McCarty. I'm chief of staff for the department. 7 I would like to present for your 8 consideration the department's review of existing 9 regulations. 10 House Bill 1 of the 75th Legislature and 11 Senate Bill 178 of the 76th Legislature directed all 12 state agencies to review existing regulations no later 13 than four years after a rule becomes final. 14 This review is an assessment of whether 15 the reasons for initially adopting the regulations 16 continue to exist. And rule reviews are to be 17 conducted in accordance with the Administrative 18 Procedures Act. 19 A little background on TPWD's rule 20 review. The department completed a voluntary review 21 and sunset of all regulations in January of 1997. 22 In August of 1998, in compliance with 23 House Bill 1, the original rule review legislation, 24 TPWD filed a notice of plan for review in the Texas 25 Register outlining a proposed schedule review. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 6 1 And, in October of 2000, TPWD filed our 2 notice of intent to review for the chapters that you'll 3 be looking at today. That's Chapter 51, in Executive. 4 Chapter 52 (Wildlife and Fisheries). 5 This chapter deals mostly with our stocking policies. 6 Chapter 55: (Law Enforcement) deals 7 with Operation Game Thief, boating safety, hunter 8 safety, and other law enforcement issues. 9 And Chapter 61 (Design and 10 Construction). 11 Let me say that a number of people 12 worked on this rule review over time: Emily Armitano 13 and Judy Doran worked on the executive session -- 14 executive section; Robert McDonald worked on the 15 wildlife and fisheries; Jim Robertson and Jack King 16 worked on law enforcement; Scott Boruff and Steve 17 Whiston worked on design and construction. 18 To date, from our original October 2000 19 publication, we've received no public comment on 20 these -- on this rule review. 21 As a result of this review, staff 22 proposes the following action: 23 We propose to readopt Chapter 51 24 (Executive), with the following amendments: Amend 25 Subchapter A (Petitions for Rulemaking), and I'll go ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 7 1 into that in more detail in a minute because that's 2 probably the most significant part of this -- of these 3 amendments. 4 Repeal Subchapter B (Practices and 5 Procedures for Contested Cases). This will eliminate 6 redundancy with existing statutory law. This whole 7 Practice and Procedures section is also covered in 8 Government Code 2260, so it's not necessary for it to 9 be in our administrative code also. 10 Amend Subchapter D (Litigation and Other 11 Legal Action) to allow the executive director to name a 12 designee to act on his or her behalf when requesting 13 assistance from the attorney general's office. When we 14 have a minor accident, a vehicle accident or other 15 things, we often request assistance from the attorney 16 general's office, and, in practice, we do this -- we 17 do this now in terms of a designee of -- the executive 18 director is the person who's requesting -- it's 19 usually a lawyer within the agency, or myself -- 20 requesting assistance from the attorney general's 21 in -- in getting legal coverage for those -- for 22 those activities. 23 And, finally, in Chapter 51, amend 24 Subchapter G (Closely-related Nongovernmental 25 Organizations) to eliminate the list of entities ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 8 1 designated as closely related. Right now, our entire 2 list of nonprofit organizations is in our -- in our 3 administrative code. These number of organizations, 4 with our Friends groups and so forth, is rapidly 5 changing, and to avoid having to come back to the 6 commission every time a new Friends group is -- comes 7 on line as a nongovernmental organization and get -- 8 and have the commission take action to add it to list, 9 we would propose that the law simply read that we are 10 required to maintain a list, and that the executive 11 director be delegated authority to maintain that list. 12 Readopt Chapter 52 (Wildlife and 13 Fisheries). The review of that section occurs quite 14 often, and, certainly, the need for that section 15 continues to exist. 16 Readopt Chapter 55 (Law Enforcement). 17 The same is true for that. This section is reviewed 18 quite often, and the elements in there are currently 19 appropriate and continue -- and their need continues 20 to exist. 21 Readopt Chapter 51 (Editor's note: 22 Should be 61) (Design and Construction), with a minor 23 amendment to Subchapter A, which is soliciting bids, to 24 allow us to solicit bids through a more 25 widely-disseminated invitation for bids, rather than ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 9 1 just simply the process of doing that through want ads 2 in the newspaper. 3 In our original review, we had 4 originally proposed to repeal Subchapter C of Section 5 51, which deals with easements, but with further review 6 on that, over the process, we've determined that we 7 want to leave that in place, and we would -- in this 8 process, we would propose to remove our request for 9 repeal of that section. 10 Let me go to the section that probably 11 has changed the most, and that's the proposed petitions 12 for rulemaking. 13 TPWD's current procedures for processing 14 petitions for rulemaking are problematic due to the 15 length of time between commission meetings. The 16 Government Code requires that we act on a petition for 17 rulemaking within 60 days, and sometimes, especially if 18 we receive a petition of rulemaking at one commission 19 meeting, it's more than 60 days before we get to the 20 next commission meeting, at which time we can take 21 action. So we would propose that once a petition is 22 determined to be administratively complete, that we 23 refer the petition to the appropriate staff for 24 evaluation and recommendation within 10 days, to either 25 deny the petition or initiate rulemaking. The ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 10 1 commission would be forwarded the petition and staff's 2 recommendation for review. 3 If, after review, and if a member of the 4 commission wishes, the petition would be placed on the 5 next commission agenda, and if -- or if no member of 6 the commission wishes further investigation or action 7 on the petition, the petition would be denied, and the 8 petitioner would be notified. 9 The review of these four sections has 10 resulted -- there's 127 sections in these four 11 chapters. We're proposing to repeal 39 of those 12 sections, which would result in approximately a 13 30-percent reduction in total section count of these 14 four areas. 15 Our current motion to -- or request of 16 the committee would be that they forward this proposal 17 to the full commission for consideration and it be 18 considered for placement on the consent agenda. 19 The motion that you would be seeing 20 tomorrow in full commission would be that Texas Parks 21 and Wildlife Commission adopts, with proposed changes 22 to the text as published in the October 6, 2000, issue 23 of Texas Register, for Chapters 51, 52, 55, and 61. 24 And let me continue with the fact that 25 this -- we have several other sections that are going ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 11 1 to have to be reviewed. We're in our four-year cycle 2 from 19 -- from our original 1997 review. At our 3 January commission meeting, we'll be bringing to you 4 Chapters 53, which is Finance, Chapter 59, which is 5 Parks, and Chapter 69, which is Resource Protection. 6 In our April commission meeting, we will 7 bring you Chapter 65, which is Wildlife, which is 8 actually the statewide, and that's at the time that we 9 normally do that anyway, so that's pretty much coming 10 out on schedule. And, in June, we'll bring forward 11 Chapters 57 (Fisheries) and 58 (Oysters and Shrimp). 12 At that, I would entertain any questions 13 from the commission. 14 CHAIR BASS: Any questions or comments, 15 in particular, on the petition -- proposals for 16 handling petitions? 17 COMMISSIONER IDSAL: Only just to 18 clarify that we would be sent, for our review, by mail, 19 any petition -- 20 MR. McCARTY: A petition with a 21 recommendation from staff as to how that petition could 22 be handled. 23 COMMISSIONER IDSAL: And then we would 24 communicate back to you, by telephone or -- 25 MR. McCARTY: Telephone or mail -- ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 12 1 COMMISSIONER IDSAL: -- letter or 2 fax -- 3 MR. McCARTY: -- yes, ma'am. 4 COMMISSIONER IDSAL: -- Or whatever? 5 MR. McCARTY: Yes, ma'am. 6 COMMISSIONER IDSAL: Okay. 7 COMMISSIONER DINKINS: Has that type of 8 procedure been used in any other of the state 9 agencies? 10 MR. McCARTY: Not that I know of, no, 11 ma'am. 12 COMMISSIONER DINKINS: But you have 13 reviewed it with counsel? 14 MR. McCARTY: Yes, ma'am. Judy Doran, 15 legal counsel, has reviewed that procedure. 16 COMMISSIONER IDSAL: Is there any way 17 you could contact each of us, to be sure that we have 18 received it and that -- 19 MR. McCARTY: Yes, ma'am. 20 COMMISSIONER IDSAL: -- we're aware of 21 it and all that? 22 MR. McCARTY: Sure. 23 CHAIR BASS: I think -- 24 MR. McCARTY: I can -- 25 CHAIR BASS: Maybe we could structure it ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 13 1 where if there's not -- if you don't hear from us, you 2 presume that we want to have it on the calendar rather 3 than vice-versa. 4 MR. McCARTY: Okay. We can structure it 5 where there is a check-off there, where we do contact 6 you -- 7 CHAIR BASS: For sure, and then -- 8 MR. McCARTY: -- rather than just 9 presuming. 10 CHAIR BASS: I guess there's also 11 another thing we could possibly do, is even though the 12 petition has been responded to, at whatever our 13 subsequent meeting is, just have a review of what 14 petitions have been received so that if there's some 15 comment, it is an agenda item. 16 MR. McCARTY: We could -- 17 CHAIR BASS: Similar to how we could -- 18 how we do gifts or whatever. So that if somebody 19 does -- 20 MR. McCARTY: We could -- 21 CHAIR BASS: -- Does show up to speak to 22 that, it is an agenda item, and there is a venue for 23 them to speak directly to the commission. 24 MR. McCARTY: Okay. 25 CHAIR BASS: So it would be different ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 14 1 from the gift item business. That might be something 2 to consider. 3 How do other agencies handle this? 4 Obviously, in many agencies, the commissions meet much 5 more frequently than we do, and it's not as big an 6 issue, but I'm sure there are agencies that are 7 petitioned that meet, at least, somewhat as 8 infrequently as we do. 9 MR. McCARTY: I don't know. 10 Judy, do you have the background on -- 11 MS. DORAN: Just that most agencies meet 12 more frequently than us, and this is a fairly new 13 procedure. I can get you more details if you want on 14 that. 15 COMMISSIONER IDSAL: You say it's new; 16 it's a new procedure with you-all? Have you got any 17 feedback for us on how it's working and -- 18 MS. DORAN: No comments. 19 COMMISSIONER IDSAL: No comments. 20 MR. McCARTY: And Larry just -- Larry 21 indicated that the coastal coordinator council uses a 22 procedure very similar to this. 23 DR. McKINNEY: Let's give you an update 24 on what is used. 25 The coastal coordinating council, they ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 15 1 meet only three or four times a year, and they have to 2 take actions in referral of projects coming before them 3 within, like, 30 to 60 days, dependent -- and the way 4 they handle that is they -- and Commissioner Watson 5 represents us on that council. 6 And the GLO sends written notices of a 7 project that might be referred, with a staff 8 recommendation, to those members. That gives them the 9 opportunity, if they wish, to communicate back with the 10 secretary of the council, and then they can -- if they 11 choose to refer it, then that item is put on the 12 agenda, and all action is suspended on it, rulemaking 13 and so forth, until the council can meet. That allows 14 them to meet the two guidelines. So they do that there 15 in a similar fashion. 16 CHAIR BASS: Is everybody comfortable 17 with this? 18 COMMISSIONER DINKINS: Mr. Chairman, I 19 would move that we move to the full commission agenda, 20 the recommendation of staff, with the alteration that 21 you suggested, for it to be included as an agenda item 22 in case someone does want to comment on it, and that we 23 also ask that staff contact the members of the 24 commission, in some way, to assure that they actually 25 did receive and realize that they needed to review and ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 16 1 either respond or not on that particular item. We do 2 get rather a lot of correspondence. 3 CHAIR BASS: Sure. 4 COMMISSIONER HENRY: Consent agenda or 5 not? 6 COMMISSIONER DINKINS: Yes, on the 7 consent agenda. 8 COMMISSIONER HENRY: I'll second the 9 motion. 10 CHAIR BASS: Motion and a second. 11 Motion carries. Thank you. 12 (Motion carries unanimously.) 13 AGENDA ITEM NO. 3: BRIEFING-STATEWIDE HUNTING AND 14 FISHING REGULATIONS PREVIEW. 15 CHAIR BASS: Statewide hunting and 16 fishing. 17 MR. HAMMERSCHMIDT: Mr. Chairman, 18 Commissioners, my name is Paul Hammerschmidt, program 19 director for the coastal fisheries division. 20 My presentation today will brief you on 21 potential regulatory plans of the coastal fisheries 22 division for the Statewide Hunting and Fishing 23 Proclamation. 24 During this regulation cycle, coastal 25 staff will investigate the possibility of increasing ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 17 1 the daily bag limit for Spanish mackerel from 7 to 15 2 fish. And this has already been implemented in the 3 federal waters by the Gulf Council. Certainly, as 4 we've done before, establishing rules consistent with 5 those in the federal waters helps enhance law 6 enforcement and reduces angler confusion. 7 To kind of give you some background on 8 the fish itself, Spanish mackerel is a highly migratory 9 species. It's found along the western Atlantic coast 10 of the United States and throughout the Gulf of 11 Mexico. 12 Tagging studies have shown that it has 13 seasonal movement patterns north and south along the 14 Texas/Mexican coast, and east and west movement along 15 the northern Gulf. In addition, some genetic studies 16 have shown that there are two distinct stocks between 17 the Gulf and the Atlantic. 18 These fast-moving surface-feeding fish 19 normally form large schools of like-sized individuals. 20 In Texas, the average size that's caught is about two 21 to three pounds. 22 They frequently enter title estuaries, 23 bays, and lagoons and are really common in the 24 nearshore waters of the Gulf. 25 Female Spanish mackerel grow faster and ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 18 1 reach larger sizes than males, and they've been known 2 to live as long as nine years, but anything over four 3 years is kind of rare. They generally reach maturity 4 by the age of two. 5 Spawning occurs from around April 6 through September, and this long spawning period helps 7 them to expand their spawning capabilities and avoid 8 some of the problems with environmental conditions. 9 From 1992 to 1998, there was an average 10 of about 6800 fish landed each year by recreational 11 anglers in Texas waters, and about 2000 from the EEZ. 12 And of all those anglers who did land Spanish mackerel, 13 only 10 percent of them caught a bag limit. So it 14 seems clear that we have a fishery here that's going 15 largely unrecognized by anglers. 16 Spanish mackerel is one of those species 17 that our agency deals with that is managed under dual 18 jurisdiction between the state of Texas and the federal 19 government. We manage the species out to nine nautical 20 miles. All the federal government, through the Gulf of 21 Mexico Fishery Management Council and National Marine 22 Fishery Service, manage from 9 to 200 nautical miles 23 into the EEZ. And as you know, the Gulf Council is one 24 of eight that was formed by the Magnuson Act in 1976. 25 Our division works closely with the Gulf ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 19 1 Council in negotiating management strategies for 2 species such as Spanish mackerel through staff's 3 participation and advisory panels, scientific and 4 statistical committees, stock assessment panels, 5 socio-economic panels, and as a voting member on the 6 council itself. 7 Some management history of this fish: 8 In 1982, the Gulf Council approved the first fishery 9 management plan for coastal migratory pelagics in the 10 Gulf of Mexico and south Atlantic, and that included 11 Spanish mackerel. 12 In 1986, the two groups of Spanish 13 mackerel were recognized, and this resulted in a 14 revised stock assessment which found that the Gulf 15 stock was in an overfished condition. 16 Subsequent management measures, which 17 included quotas and seasons and bag limits and gear 18 restrictions and that type, were implemented over the 19 next decade to help rebuild the overfished stocks. 20 The culmination of these management 21 measures, including a really significant one, which was 22 the Florida Net Ban in 1996, is now -- this is a good 23 fishery success -- fishery management success story. 24 Excuse me. Recent stock assessment showed that Spanish 25 mackerel populations in the Gulf are fully recovered, ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 20 1 and that they are at a level now where the available 2 harvest is not being taken. In fact, the federal 3 government increased the bag limit to 15 fish per day 4 last summer in federal waters, recognizing that the 5 increase would not create additional problems in the 6 fishery. 7 In Texas waters, our routine monitoring 8 data echo these improvements. The division's 9 unweighted samples show, on average, an almost 10 five-fold increase in catch per unit of effort from the 11 period of 1976 through '89, as compared with the period 12 of 1990 through 1998. 13 This fishable surplus of Spanish 14 mackerel gives our fishery managers the rare occasion 15 to increase fishing opportunities for anglers in the 16 state. And although Spanish mackerel are primarily a 17 Gulf species, their natural range brings them close to 18 the passes and jetties. And this means that you don't 19 have to have a large Gulf-rigged boat or any 20 specialized tackle to catch them. From personal 21 experience, they're an awful lot of fun on light 22 tackle. 23 In addition, the potential redirection 24 of angler focus to a species like Spanish mackerel, 25 whose populations can withstand greater fishing ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 21 1 pressure, should ease pressure on species who have not 2 recovered, such as king mackerel and red snapper. 3 So, to recap, our staff will investigate 4 the possible changes to Spanish mackerel regulations 5 that will be compatible with those of the federal 6 government. 7 Finally, staff will prepare clean-up 8 language that will require the color of floats on 9 commercial craft traps used by commercial fin fishermen 10 to be white rather than yellow. The trotline float 11 color of yellow was inadvertently incorporated into the 12 crab trap regulations. White was the original intent, 13 and that was to be -- the commercial license number 14 was to be preceded by an F. So we're going to try to 15 fix that. 16 And I'll be happy to answer any 17 questions. 18 CHAIR BASS: Are there currently yellow 19 markers out there? 20 MR. HAMMERSCHMIDT: I don't know. 21 Jim, how are we doing that? 22 MR. JIM ROBERTSON: Saltwater 23 trotlines -- 24 DR. McKINNEY: Yeah, the saltwater 25 trotlines are yellow -- ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 22 1 MR. JIM ROBERTSON: -- are yellow. 2 MR. HAMMERSCHMIDT: -- and when we 3 drafted the language, the yellow got carried over into 4 the crab trap regulations. 5 CHAIR BASS: Thank you. 6 MR. DUROCHER: Mr. Chairman, 7 Commissioners, for the record, I'm Phil Durocher, the 8 director of Inland Fisheries, and this is Ken 9 Kurzawski; he's the division regulations coordinator. 10 And Ken will be giving you a brief review of the 11 issues, the regulation issues, that we're looking at 12 for this coming year. 13 MR. KURZAWSKI: Good morning, 14 Commissioners. 15 Today I want to present some of the 16 issues concerning freshwater fishing regulations that 17 our staff have identified and that we wish the 18 commission to consider as part of this regulation 19 cycle. 20 These proposals so far have undergone 21 review by our district staffs at a regional level. 22 Also undergone statewide review with all our staff 23 biologists, and also review by senior staff at the 24 statewide level. 25 Recently, we presented them before the ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 23 1 Freshwater Advisory Board, in October, for their 2 consideration and for their input. 3 The first area that we're considering is 4 some simplification of regulations for smallmouth bass 5 on seven reservoirs. They are Belton, Cisco, 6 Greenbelt, Oak Creek, Stillhouse Hollow, White River, 7 and Whitney. 8 We're proposing to change the existing 9 18-inch minimum length limit to -- back to the 14-inch 10 limit, which is the statewide limit, and we would also 11 move the daily bag from 3 to 5, which is also the 12 statewide limit. 13 This regulation was implemented on these 14 reservoirs in 1994, in the hopes of increasing 15 population abundance in these reservoirs, resulting in 16 improvements in angler catch and also in reproductive 17 potential for these populations. 18 We haven't seen any gains or impacts 19 under the 18-inch minimum and believe we could simplify 20 the regulations, go back to the statewide, and not have 21 any impacts on the angling quality in these 22 reservoirs. 23 The next area is to -- we're looking at 24 is to modify some harvest regulations on largemouth 25 bass on three reservoirs. Our goal here is to improve ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 24 1 or maintain the quality in these reservoirs. 2 The first one is Lake Sweetwater in 3 Nolan County. It currently has a 14-inch minimum. 4 We'd like to change that to a 14- to 18-inch slot. Our 5 goal there is to increase abundance of quality-sized 6 bass, result in better angling. This is one of the 7 better angling -- better bass angling lakes in the 8 Abilene area. It has a good population structure at 9 this time. The slot will enhance that, provide more 10 quality-sized fish, and larger-sized bass, and so far, 11 the initial comments we've had from anglers in that 12 area, bass anglers, tournament anglers, that they're 13 supportive of that. They recognize there are some good 14 fish out there, and they think this might -- this will 15 probably be a good step to further enhance the quality 16 of the fishing in Lake Sweetwater. 17 The next is Pinkston Reservoir. It's 18 another smaller reservoir. This one in east Texas. 19 This one currently has a 14- to 18-inch slot, and we're 20 proposing to up that to the 14- to 21-inch slot, with 21 the restriction of harvest of only one bass over 21 22 inches, and our goal there is to increase the abundance 23 of trophy-sized bass in this reservoir. This reservoir 24 has a history of producing some trophy bass. The fish 25 pictured there was a 16.9 pound bass caught in 1986, ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 25 1 which was a state record for a short period of time. 2 And our goal there would be increase the abundance of 3 these trophy-sized bass, and so far, we've received a 4 lot of support from anglers on this one, also. 5 The final regulation for bass is O.H. 6 Ivie. We were modifying an existing 18-inch minimum on 7 that reservoir. We wish to change that 18-inch minimum 8 to a no-minimum but sort of maintain some of the 9 18-inch regulation in that by allowing anglers to take 10 2 bass under 18 inches. Sort of splitting up the 11 current bag. Still maintaining the five-fish bag, but 12 allowing them to take two fish under 18 inches. 13 The reason for -- we're proposing this 14 and considering it is the overabundance of 14-to 15 18-inch bass that we have in the reservoir at this 16 current time. These fish are slow growing. We have 17 some fish in there that are 16, 17 inches that are six, 18 seven, eight years old. They're not growing above that 19 18-inch minimum, and we feel we need to remove some of 20 those fish from the system. The situation is somewhat 21 heightened by the low water levels that are in O.H. 22 Ivie. It did recently pick up some water, a few feet, 23 in its level, but we're still around 50 percent 24 capacity, and we feel we need to remove some fish there 25 to get the angling quality, ensure that the angling ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 26 1 quality continues into the future. And our goal there 2 would be to remove some of those 14- to 18-inch bass 3 and maintain the quality of angling that we have 4 there. 5 This last winter, three Budweiser 6 ShareLunker fish were caught out of the reservoir. We 7 still have a good population of larger fish, but we 8 need to ensure that we keep some fish moving through 9 that system to take advantage of the growth in that -- 10 potential in that reservoir. 11 Final regulation that we're -- for 12 consideration is a regulation standardization with two 13 small reservoirs on the Caddo National Grasslands. 14 Currently the U.S. Forest Service has 15 some regulations that differ from ours, and we're 16 proposing to standardize those. Prohibit the use of 17 three fishing methods: Trotlines, throwlines, and 18 juglines. The goal there is to -- the reason for 19 doing this is to help improve the quality of the 20 catfish angling. Our staffs there are working together 21 to try and improving the angling qualify for that and 22 to standardize those regulations with the Forest 23 Service regulations. 24 That's all the ones -- proposals we are 25 considering at this time. We look forward to any input ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 27 1 you have and to consider -- and to continue to gather 2 input and -- on these proposals. 3 CHAIR BASS: Thank you. I'm sure there 4 will be other things that come up between now and 5 final, but it looks like a good package. Thank you. 6 Mr. Cooke. 7 MR. GRAHAM: Chairman Bass, I'm Gary 8 Graham, director of the wildlife division, and I've 9 asked Jerry Cooke to present the statewide regulations 10 for wildlife. 11 MR. COOKE: Mr. Chairman and Members, my 12 name is Jerry Cooke, game branch chief of the wildlife 13 division. I'll be presenting you the issues that's 14 been identified by staff as potential changes for the 15 coming statewide regulatory cycle. 16 The normal process for wildlife 17 division, during the summer months, is to identify 18 issues for your consideration in November. These 19 issues are those that we feel are related to chairman's 20 charges of maximizing hunting opportunity, as well as 21 providing greater landowner flexibility, while still 22 protecting the wildlife resources that we're all 23 responsible for. 24 We present these issues to you now to 25 ensure that the changes that are developed for the ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 28 1 proposal in January are those you consider appropriate, 2 and to allow you the opportunity to identify issues 3 important to you that you would like to have us further 4 investigate before the January meeting. 5 The first is recognizing the continued 6 improvement from the Eastern Wild Turkey Restoration 7 Program, by providing a standard spring Eastern turkey 8 season in Houston, Rusk, Smith, Upshur, and Wood 9 counties. This would be the standard season as exists 10 in the remainder of that part of east Texas. 11 CHAIR BASS: Ultimately, how much 12 farther do we think that might be able to expand? 13 MR. COOKE: This -- if this 14 proposal -- 15 CHAIR BASS: I mean, we're going to run 16 out of habitat at some point. 17 MR. COOKE: If this were proposed and 18 adopted, this would bring it to 37 counties, but we're 19 close -- let me back up. 20 We're close, but we have counties all 21 along the coast, as far down as Matagorda County, that 22 we have already stocked and are growing. So it could 23 expand another 10 or 15 counties, I would suspect, but 24 those would be primarily along the coast, and there may 25 be a few fillers, but you're pretty -- about -- ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 29 1 you're about as far east as you're going with those. 2 CHAIR BASS: As far west. 3 MR. COOKE: Excuse me. West. And east 4 as far as that goes. 5 COMMISSIONER ANGELO: Have they reached 6 a hold population that fits the holding capacity of the 7 area they're in, or are they still expanding? 8 MR. COOKE: They're still expanding. 9 The thing that we primarily identify as an established 10 population is when the group sizes get large. Eastern 11 birds aren't like Rio Grande birds; they move in 12 smaller groups, but when you're seeing five, six, ten 13 birds to a group, we know we're there. But those 14 flocks continue to grow, depending on the year. 15 COMMISSIONER ANGELO: Okay. 16 MR. COOKE: Our staff has recognized 17 that the Javelina population in Archer County has 18 developed to the point that a season could be provided 19 there, and that could be developed also. 20 Another issue is the potential to expand 21 the Youth-Only season for deer and turkey, for modern 22 arms, during the weekends of October and January. 23 Currently, youth hunts can be conducted 24 by archers during October, muzzleloaders during 25 January, and with modern arms, on Level II and Level ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 30 1 III MLD properties, during both periods, and, of 2 course, during any weekend of the general season. 3 Any proposal that might result from this 4 issue would not affect any of those opportunities 5 currently available; however, there is potential -- 6 there is no potential for landowners who are not 7 participating in any of these special seasons or permit 8 option to provide youth hunts during October or 9 January. 10 The original treatment of this issue 11 identified all weekends of October and three weekends 12 of January as potentially available for such 13 expansion. However, there is concern among some staff 14 that over-harvest of either bucks, does, or both could 15 result in parts of Texas where populations are not 16 strong and where hunting pressure currently is intense, 17 depending, of course, on how the proposal might be 18 developed. 19 Also, there will probably be some 20 opposition to expanding this kind of a season in the 21 month of October from archers as a group. 22 CHAIR BASS: So this type of a proposal 23 is something we think will probably get trimmed back, 24 for various reasons, because of some counties having as 25 much pressure as they can withstand currently and ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 31 1 presents some social conflicts? 2 MR. COOKE: We just wanted to make it 3 clear to the commission that you probably couldn't 4 build a blanket proposal that was very expansive 5 statewide without there being some problems developed, 6 so that may require some kind of adjustment, either in 7 weekends or in area. Those kinds of things. 8 Currently, antlerless and Spike Deer 9 control permits are valid during the period in which 10 any regular season is open on a property. The purpose 11 of ADCP is to allow a landowner to reduce a deer herd 12 that imminently endangers itself or its habitats, and 13 where conventional hunting would be not effective to 14 accomplish this reduction. Because of this focus, in 15 most instances, it is a cross-purposes with Level II 16 and Level III MLD properties. Populations with the 17 greatest need for harvest are provided only the 18 county's general season, which is much shorter, to 19 accomplish much more difficult harvest goals at a time 20 that would not necessarily be optimal for improving 21 habitats to the maximum. 22 A proposal developed from this issue 23 could establish a period in which ADCPs were valid, 24 such as the Saturday nearest September 30th through the 25 last day of any open deer season in a given county. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 32 1 One issue that came up is that on U.S. 2 Forest Service lands, Corps of Engineers lands, Trinity 3 River Authority, and Sabine River Authority, in the 4 east Texas muzzleloader season, has wording in the 5 regulation that treats them differently than other 6 landowners in those counties, and we would wish to 7 clarify that the flexibility available to other 8 landowners would be available to them as well. It has 9 to do with requirement of an MLD permit on those 10 properties, and by removing one sentence, essentially, 11 they would be treated like everyone else. 12 In Fannin, Hunt, and Rains Counties, we 13 would simply allow LAMPS permits to be used in those 14 counties. There wouldn't be any other change in the 15 season or bag limit in the county, but it would allow 16 landowners who were not specifically interested in high 17 levels of management to still harvest antlerless deer. 18 In 14 counties just north of the Edwards 19 Plateau, we would propose to add one antlerless deer to 20 the bag and provide them with the same 14-day 21 antlerless and spike-buck season as is found in the 22 Edwards Plateau. These populations are as strong as 23 any in the northern plateau, and it would seem 24 appropriate to pursue this. 25 In Aransas, Atascosa, Bee, Calhoun, ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 33 1 Cameron, Hidalgo, Live Oak, Nueces, Refugio, San 2 Patricio, Starr, and Willacy counties, we would pursue 3 a proposal that would allow five deer, no more than 4 three bucks, to be taken in those counties, and also 5 provide them with the same 14-day antlerless and 6 spike-buck season that is found in the remainder of 7 south Texas. 8 Also, we would propose that throughout 9 that south Texas area, that the opening day of the 10 season be changed to the first Saturday in November, 11 which would make it consistent with all the other deer 12 openings in the state of Texas. 13 CHAIR BASS: So that would give us a 14 uniform -- 15 MR. COOKE: A uniform -- 16 CHAIR BASS: -- statewide -- 17 MR. COOKE: A uniform opening date. 18 CHAIR BASS: Traditionally, the opening 19 of all turkey seasons has been tied to the opening of 20 white-tailed deer. 21 MR. COOKE: It will be as well. 22 CHAIR BASS: It would be as well? 23 MR. COOKE: Yes. As you said, the fall 24 season has always been traditionally linked to the deer 25 season, and while I didn't specifically mention that ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 34 1 here, we would make those consistent as well. 2 CHAIR BASS: Probably need to make that 3 clear to the public -- 4 MR. COOKE: Absolutely. 5 CHAIR BASS: -- At large. 6 COMMISSIONER IDSAL: What's the current 7 date on that -- what's the current opening date, I 8 should say? 9 CHAIR BASS: The second Saturday -- 10 MR. COOKE: Second Saturday -- 11 CHAIR BASS: -- of November. 12 MR. COOKE: It essentially just 13 moves -- 14 CHAIR BASS: One weekend. 15 MR. COOKE: There's not a real clear 16 reason why it would be opening a week later. I mean, 17 obviously, the ruts are later and that sort of thing 18 but -- 19 CHAIR BASS: Great. 20 MR. COOKE: This would make it -- 21 CHAIR BASS: It's not a biologically -- 22 MR. COOKE: Not a biological issue. 23 We also have -- 24 CHAIR BASS: Be nice to have a 25 statewide -- ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 35 1 MR. COOKE: -- Some issues -- some 2 issues related to mourning dove that Vernon Bevill will 3 be presenting for you. 4 MR. BEVILL: Mr. Chairman, members of 5 the committee, my name is Vernon Bevill. I'm the 6 program director for the game bird program. 7 I wanted to talk with you today about an 8 issue that we'd like to take forward and scope and come 9 back to the April commission meeting with a more 10 definitive evaluation of the potential impact of 11 change. 12 Six years ago we went from a 12-bird to 13 70-day mourning dove season to a 15-bird, 60-day 14 mourning dove season statewide. We have three dove 15 zones for the state of texas. The south zone opens 16 later than the other dove zones by requirement of 17 federal regulations. The Migratory Wildlife Advisory 18 Board has maintained a close eye on this dove season 19 and bag limit change with an interest in whether you 20 get more opportunity from the added bag or opportunity 21 from the added days. And the Migratory Advisory Board 22 suggested to us that we re-evaluate the public interest 23 particularly in the south zone since mourning doves 24 tend to take up in the South Zone, and in the course of 25 the fall and hunting is probably better a few weeks ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 36 1 after the season opens than it is on that Friday when 2 the season does open. The rationale for reevaluating 3 this and deciding whether or not leaving it like it is 4 or maybe changing it kind of fall along these lines. 5 As I said, they do stack up in the South Zone and are 6 more available a little later. 7 One of the things we've looked at 8 continuously since we've made this change is the 9 average harvest per hunter day, and, as you see in this 10 slide, the average harvest per hunter day was basically 11 3.5 in the period when it was a 12 and 70 season, and 12 now, under 15 and 60, it's 3.6 in that period since the 13 change. So there's no statistical difference in the 14 average harvest per hunter day. 15 We have, during this period, actually 16 had a decline in, both, number of hunters and harvest 17 statewide. And that decline is a little more 18 pronounced in the South Zone than any of the other 19 zones. 20 One of the things this change might do 21 would allow more concurrent hunting with the quail 22 season, and, as you've known from previous 23 presentations that I have made to you, the average dove 24 hunter in Texas basically doesn't harvest more than 25 about 15 birds per season; sometimes it's a little less ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 37 1 than that. 2 If we were looking at such a change, we 3 would probably look at putting this change at the front 4 end of the second split. In other words, open the 5 second split earlier in December and then run it into 6 the end of the first week in January, as we currently 7 run the second split. But we are at a point now where 8 we are simply looking at this issue, as we have been 9 guided to -- encouraged by the Migratory Wildlife 10 Advisory Board, with the idea that we put it out for 11 public review during the scoping process. When we come 12 back to you, in April, with a request to publish our 13 proposed proclamation for early and late season 14 regulations, we'll have a more definitive evaluation of 15 this and have a staff recommendation of whether this 16 change would be appropriate or not based on the levels 17 of input we receive. 18 There are issues associated with this. 19 It's -- In changing a zone season and bag limit in one 20 zone and leaving the others the same, you do create a 21 little regulatory diversity that is a little bit of a 22 complication, and that's an issue that we'll certainly 23 look at with law enforcement and so forth. So, at this 24 time, our intent is just to go forward and scope this 25 out and see where the public interest stands. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 38 1 Recent surveys of the hunting public in 2 Texas indicate that the majority of our dove hunters 3 are comfortable with the 15 and 60 bag limit and -- to 4 the tune of about 59 percent to 41 percent. 5 CHAIR BASS: Vernon, what's the latest 6 date, under the federal framework, that we can keep the 7 dove season open? 8 MR. BEVILL: Actually, the latest 9 date -- Texas is a special case. All other dove 10 frameworks close on the 15th of January. We could go 11 to the 25th if we had the days to do that with. 12 CHAIR BASS: So, in other words, the 13 proposed dates you have up here are merely illustrated 14 and could be changed? 15 MR. BEVILL: Could be changed. In fact, 16 we could even consider putting some of those days into 17 the first split, the tail end of the first split, and 18 rearrange the days in the second split. 19 CHAIR BASS: I guess my only -- the 20 concern I would have is the one you raised, that some 21 confusion amongst the public of "Am I in an area where 22 it's a 12-bird bag or 15-bird bag," and it, in a 23 sense, goes against the grain of our efforts of 24 simplification, but it perhaps does go in the spirit of 25 our efforts to maximize hunter opportunities, so this ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 39 1 is -- 2 MR. BEVILL: And that -- 3 MR. BEVILL: And that's a -- 4 CHAIR BASS: -- that cuts both ways. 5 With our HIP information, this might be something that 6 we want to, at least, look at the feasibility of -- 7 and cost of -- doing a direct mail survey to people, I 8 guess, you know, both -- maybe in the South and 9 Central Zones where that line of demarcation and bag 10 limit change could become somewhat confusing to people, 11 and address -- be able to address that specific issue 12 and get some public sentiment on it. 13 COMMISSIONER IDSAL: I'd like to just 14 comment, Vernon, that I've gotten a tremendous amount 15 of questions about this in south Texas, probably more 16 than any other issue. People coming up and saying they 17 wish we would take a look at this. And I understand 18 that the surveys we did last year don't jibe with what 19 I've seen, and maybe we need to figure out a way to 20 communicate. You know, it's anecdotal. I understand 21 that. But it's so overwhelming that I'd like to see 22 if -- you know, just review the way we did it in the 23 past and maybe see if we're not getting to enough 24 people. 25 MR. BEVILL: Our mail survey that we did ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 40 1 in '99, it was 59 for 15 and 60, 41 against. And it 2 broke out by one zone, exactly 59/41 in the South Zone, 3 but our anecdotal public comment was just the reverse; 4 we had more people suggesting we go back to 12 and 70 5 than sticking with 15 and 60. So -- 6 COMMISSIONER IDSAL: I'd say mine has 7 been -- 8 MR. BEVILL: So it is -- 9 COMMISSIONER IDSAL: -- a hundred 10 percent -- 11 MR. BEVILL: -- a mixed bag out there. 12 COMMISSIONER IDSAL: -- to zero. 13 And I just want to see why there's that 14 disconnect there. 15 MR. BEVILL: When we made this change 16 six years ago -- and Chairman Bass remembers -- that 17 the big issue was what is opportunity? Is it a higher 18 bag or more days? And with only a 3-bird tweak of the 19 bag limit, really, it's not enough of a substantial 20 regulatory change that we could tease out any real 21 answers to what we have accomplished. And then you've 22 got the compounding factors of drought. You've got the 23 compounding factor in the South Zone of drought, and 24 then right before the season opens, torrential rains 25 that redistribute birds. So, you know, we've just been ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 41 1 unable to, from a regulatory standpoint, resolve what 2 we've accomplished here one way or the other. 3 CHAIR BASS: Any other questions? 4 Thank you. 5 MR. BEVILL: Thank you. 6 CHAIR BASS: All right. Next agenda 7 item is petition for -- Oh, yeah. I'm sorry. I 8 forgot. 9 Jerry, would you mind coming back up? 10 One thing that -- 11 MR. COOKE: Near escape? 12 CHAIR BASS: Near escape. 13 I've had some conversations recently, 14 with Mr. Sansom, about -- and I think you have as 15 well, is making an effort once again to address the 16 issue of one-buck counties. 17 MR. COOKE: Yes, sir. 18 CHAIR BASS: And the potential that we 19 could allow or create opportunity for hunters who wish 20 to hunt in a second one-buck county to do so. It's 21 been kind of a corollary of some of the tag reform 22 issues we've discussed but not pursued. 23 It's my understanding that, at least, in 24 a portion of the current one-buck counties, it's not a 25 biological issue if somebody who had shot a buck in a ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 42 1 one-buck County A were to subsequently be able to shoot 2 a buck in one-buck County B. 3 Some of this has been addressed through 4 MLD permit programs and special permit programs, but I 5 don't have any evidence of it, other than just 6 intuitive, but there might be -- might well be some 7 hunter opportunity we can create in a biologically 8 sound way if we could come up with some mechanism, 9 whether it be a corollary of the red fish tag system 10 that we have, where we issue a second tag when 11 customers turn one in and provide us certain 12 information, whether it be something that's created out 13 of the technological things that our new point-of-sale 14 license might be able to create. I don't have an 15 answer, really, other than just a hypothetical, all of 16 which, you know, I'm sure have some flaws in them. But 17 through this process, you know, I'd like to see us come 18 up with some ideas, as flawed as they may be, and float 19 them to the public and maybe create some dialogue that 20 somebody -- you know, that, with the public, they 21 might come up with some ideas that help us refine ours, 22 or have a whole new approach, that create ability to 23 tap some opportunity in counties where the current 24 one-buck regulation is not already creating as much 25 hunter pressure as we feel the herd can bear. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 43 1 MR. COOKE: Right. As you know, the 2 one-buck counties are primarily based on the intensity 3 of harvested bucks, and things that significantly do 4 increase that could have resource implications. 5 However, we've done some preliminary evaluations of 6 distributions of hunters, distributions of hunter days, 7 distribution of harvest in a mapped sort of a way, that 8 suggest that there may be some ways to, say, break it 9 into the two zones and allow one buck in one zone and 10 one buck in another zone. 11 Obviously, we would not want to create 12 or even propose a regulation that wouldn't be 13 enforceable, you know? So, obviously, we want to take 14 into account all of the implications of it as well. 15 But there is certainly ways that we can 16 look at it, and, actually, we're quite encouraged 17 because we have the opportunity of the changing 18 licensing system, because we were fairly restricted, 19 because of the hardware and software of the previous 20 system, to really get very creative at all. 21 CHAIR BASS: And this may be an 22 opportune time since we're still fairly early -- 23 MR. COOKE: Since we're doing that -- 24 CHAIR BASS: -- in the process. 25 MR. COOKE: -- anyway -- since we're ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 44 1 doing that anyway. And there may be some ways that 2 would not have -- or, at least, we could approach 3 experimentally, to be sure that it does not have any 4 significant impact on the resource. But I think 5 there's ways that we could look at that. Not a 6 problem. 7 CHAIR BASS: Well, I think it would be 8 worth our while and something to try to focus on. 9 MR. COOKE: I'd be happy to share, also, 10 with you a hard copy of that preliminary stuff, just to 11 give you an idea of where we're thinking and see where 12 we're going from there. 13 CHAIR BASS: That's the only other thing 14 I had. 15 Any other comments? 16 Thank you. You may escape. 17 AGENDA ITEM NO. 4: ACTION-PETITION FOR RULEMAKING. 18 CHAIR BASS: Sabine Lake petition. 19 MR. SANSOM: I might note, Members, that 20 the next two items relate to the discussion that we had 21 earlier about petitions. These are both examples of 22 them. 23 MR. RIECHERS: Mr. Chairman and 24 Commissioners, my name is Robin Riechers. I'm 25 management director of the Coastal Fisheries division. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 45 1 I'm here to present to you a petition regarding 2 rulemaking for Sabine Lake that was presented to you at 3 your last meeting. 4 The petition proposed that all spotted 5 seatrout, red drum, and flounder landed in Jefferson 6 and Orange counties would have to abide by the current 7 Texas -- or the current, at the time, Texas size and 8 bag limits. 9 As you know, Jefferson and Orange County 10 surround Sabine Lake, which is a border water with 11 Louisiana. 12 Currently, on Sabine Lake, there are 13 different bag limits on red drum and Spotted seatrout 14 and different size limits for all three of the species 15 mentioned in the petition. 16 Under the current reciprocal licensing 17 agreement with Louisiana, a person who is licensed in 18 either state can fish in the waters of the other state, 19 as drawn there by the boundary -- or indicated by the 20 boundary line throughout the lake there. And then land 21 the bag limits associated with that other state. For 22 instance, a Texas angler can actually fish on the 23 Louisiana side and catch up to 25 Spotted seatrout, and 24 then land those fish at a Texas boat ramp, as long as 25 they were caught on the Louisiana side. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 46 1 Specifically, the petition cited, both, 2 biological reasons for their concern, as well as law 3 enforcement concerns, and indicated that there were 4 recreational fishermen who were currently abusing this 5 practice, if you will, or privilege, in quite an 6 alarming fashion. 7 When reviewing the department's survey 8 data associated with this area, we found that less than 9 one percent of the people currently land over the 10 current Texas bag limit, indicating that if there is 11 abuse, it certainly is small. 12 In addition, for all three of these 13 species, our resource monitoring shows that 14 abundance -- the resource abundance is increasing for 15 all three of these since the early 1990s. We would 16 attribute that, both, to some of the rules that we've 17 passed in the nineties for spotted seatrout and 18 flounder, and always to the removal of netting on the 19 Louisiana side, which has occurred in the 1990s. 20 In addition, the petition also reflected 21 on landing of fish that were caught in the EEZ in great 22 numbers and then bringing them back to Texas. They 23 were landing them off of Louisiana where the EEZ waters 24 start at three miles and then bringing them back. This 25 currently is in conflict with our Texas law, so that, ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 47 1 that really wasn't the issue, and the landings data 2 also does not bear that out. 3 We certainly agree with the conservation 4 spirit of the petition, and we would hope that 5 petitioners continue to work with us and the Louisiana 6 Department of Fisheries to develop compatible 7 regulations for Sabine Lake. This would certainly 8 solve any of the perceived problems that are currently 9 occurring there, or any of the abuse that is occurring, 10 the small amount of abuse. 11 We have proposed to a larger scoping 12 effort in the area and attempt to contact, both, the 13 businesses and the individuals, and explore the type of 14 situation that the petition raised, and, certainly, 15 explore further that rule change. 16 We would want to also look at the 17 economic consequences of that type of rule change 18 because we could potentially be encouraging launching 19 from the Louisiana side in deference to the Texas 20 side. There are currently two boat ramps within about 21 a 30 -- one is right across the causeway, and one is 22 probably within about a 30-minute drive, and we could 23 actually have Texas residents going over there to 24 launch their boats, so we would want to explore that as 25 well. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 48 1 So, in conclusion, staff would recommend 2 that we deny the petition at this time, and we would 3 ask you to direct us to continue to evaluate the data 4 and review the public input regarding this 5 recommendation. This item could also be considered for 6 a consent agenda. 7 COMMISSIONER ANGELO: I guess, 8 basically, you concur with the concerns they expressed, 9 but you don't really believe that right now we're 10 suffering the problems that they think we are? 11 MR. RIECHERS: That's correct. 12 COMMISSIONER ANGELO: And you're going 13 to look into it to make sure that that's right? 14 MR. RIECHERS: Yes, sir. 15 CHAIR BASS: Motion? 16 COMMISSIONER ANGELO: I'd move approval 17 with the item and that it be on the consent agenda. 18 COMMISSIONER IDSAL: Second. 19 CHAIR BASS: Motion and a second. All 20 in favor? Opposed? 21 (Motion carries unanimously.) 22 AGENDA ITEM NO. 5: ACTION-PETITION FOR RULEMAKING-QUAIL 23 SEASON. 24 CHAIR BASS: Petition for Rulemaking Ä 25 Quail Season, please. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 49 1 MR. GRAHAM: Chairman Bass, I'm Gary 2 Graham. Members of the committee, I'm Gary Graham, 3 director of the wildlife division, and I'm pleased to 4 introduce to you Steve DeMaso, who is the statewide 5 leader of our quail program, otherwise known as the 6 Quail Dude, and will talk about the petition that we 7 received about quail. 8 MR. DeMASO: Mr. Chairman, committee 9 members, for the record, my name is Steve DeMaso, and 10 I'm the Upland Game Bird Program leader in the game 11 branch wildlife division. 12 The department has received a petition 13 that has requested an earlier open date of quail season 14 to avoid conflicting with the opening of deer gun 15 season throughout much of the state. 16 This issue really has little or no 17 biological impact on the quail resource in the state of 18 Texas. However, the majority of comment in the past, 19 from the public, has indicated that most of the 20 constituents interested in this issue desire a later 21 opening date for quail season. 22 The staff recommendation is to initiate 23 rulemaking through the statewide regulation process and 24 to gather comment and bring a more definite 25 recommendation to you in the future. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 50 1 CHAIR BASS: Basically, the proposal 2 would be to deny the petition, but in the scoping 3 process, just gather comment on a potential change of 4 the season; is that correct? 5 MR. DeMASO: I don't think you would 6 have to deny the request if it was initiated in the 7 rulemaking process. We could just gather public input 8 through the scoping process and then bring to you a 9 more definite recommendation on what we find in the 10 scoping process in January. 11 COMMISSIONER ANGELO: This is 12 something -- it looks to me like it makes a lot of 13 sense. Unless we can think of some real strong reason 14 why it doesn't, it seems to me that it's a good 15 recommendation. 16 CHAIR BASS: Historically, when quail 17 hunting commences seems to be somewhat self-regulating 18 with the uniform opening because the areas of the state 19 where conditions are good for quail hunting people 20 start, and in areas where it's still too hot or green, 21 they don't care whether it opens in November or not. 22 They don't really pursue it until conditions are 23 conducive. 24 COMMISSIONER ANGELO: But there wouldn't 25 be any reason not to do it, would there? ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 51 1 CHAIR BASS: Wouldn't be any reason not 2 to do it. 3 COMMISSIONER ANGELO: Right. And, of 4 course, it doesn't overlap with whatever few years. I 5 mean, it doesn't happen every year, does it? 6 CHAIR BASS: Correct. 7 COMMISSIONER ANGELO: But it seems to me 8 something we ought to do. Certainly ought to consider 9 it. 10 CHAIR BASS: So could I take that as a 11 motion to -- 12 COMMISSIONER ANGELO: That's a motion. 13 CHAIR BASS: -- accept? 14 COMMISSIONER ANGELO: Yes. 15 COMMISSIONER IDSAL: I'll second. 16 CHAIR BASS: A motion and a second. All 17 in favor? 18 Thank you. 19 (Motion carries unanimously.) 20 AGENDA ITEM NO. 6: ACTION-MANAGED LAND DEER PERMITS. 21 CHAIR BASS: Managed Land Deer Permits. 22 MR. COOKE: Mr. Chairman and Members, my 23 name is Jerry Cooke, game branch chief of the wildlife 24 division. I'll be bringing you a proposal to 25 change -- proposed change the MLD regulations. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 52 1 Because of the wording in the 2 regulations describing when Level II and Level III MLDs 3 are valid, there will be weeks this season in which the 4 south and central Texas general seasons will be open 5 for hunting but closed on MLD properties. This 6 produces an inadvertent patchwork of closing dates on 7 properties within these regions. This proposal would 8 change this language so that Level II and Level III 9 MLDs would be valid through the current timeframe 10 available in regulation, or through the closure of the 11 regular season in a county, whichever provides the 12 longest season. 13 This proposed change was -- changes 14 were published September 22nd issue of the Texas 15 Register, and to date, we've had no comments on this 16 proposal, and we would ask that you forward it to the 17 full commission tomorrow for adoption. 18 CHAIR BASS: If enacted, it would 19 address the issue this current hunting season? 20 MR. COOKE: Absolutely. 21 CHAIR BASS: Basically, this is a 22 housekeeping item to address an oversight of the -- 23 MR. COOKE: We've had three lucky years 24 in a row where the closure was almost the same, and 25 this year, because of the calendar dates, it was very, ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 53 1 very obvious that they weren't the same, and -- 2 CHAIR BASS: Okay. 3 Any comments? Motion? 4 COMMISSIONER ANGELO: Approval. 5 COMMISSIONER IDSAL: Second. 6 CHAIR BASS: Second. All in favor? 7 Thank you very much. We'll move forward 8 with that. 9 (Motion carries unanimously.) 10 AGENDA ITEM NO. 7: ACTION-STATEWIDE AQUATIC VEGETATION 11 MANAGEMENT RULES. 12 CHAIR BASS: And Statewide Aquatic 13 Vegetation Management Rules. 14 MR. SWEENEY: Good afternoon, 15 Commissioners. I'm Bob Sweeney with resource 16 protection, and the rules that we're going to propose 17 for adoption tomorrow would govern management of 18 aquatic nuisance vegetation in Texas, and the rules 19 implement House Bill 3079 which was passed last 20 session. 21 Now, the rules are the outcome of a 22 10-month process in which Parks & Wildlife worked with 23 the stakeholder group that included participants from 24 industry, environmental groups, river authorities, 25 Department of Agriculture, and the TNRCC. And I've ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 54 1 listed all of the participants in the task force up 2 here, and I want to say that they've all done excellent 3 service on the group and have all contributed a great 4 deal to the final product, and they all really deserve 5 our thanks. 6 Just a chronology of events, putting the 7 10 months that I described, this is what we did: 8 Just zipping through it, we had a 9 September 6th public meeting after this commission 10 approved the publication of proposed rules in its 11 May/June commission meeting. We had our final task 12 force meeting to discuss the proposed changes, that -- 13 the changes we were thinking about to the proposed 14 rules are final. The task force meeting was in October 15 of this year. 16 I'd like to go through the rules and 17 explain to you the significant changes that we're -- 18 we'd like to make from the proposed rules based on the 19 comments that we have received, and this is really 20 the -- I'd say, the meat of the presentation here. 21 The first thing we've done is we've 22 included a purpose statement right up front in the 23 rules, and this expresses the Parks and Wildlife 24 Department's intent to oversee and to guide all 25 statewide activities that are attempting to manage ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 55 1 nuisance aquatic vegetation. And this is in response to 2 a comment that we received from the SMART & Clean Water 3 Action, but the purpose statement in the rules that we 4 propose is actually broader than the Smart Clean Water 5 Action proposal, which was limited to aquatic 6 herbicides. 7 Now, one revision to the rules that is 8 actually in your package I want to propose now, and I'd 9 like to -- it's up on the screen, and I'd like to 10 demonstrate to it you. 11 What we are doing here is adding, in 12 that underlined sentence, statutory language into the 13 purpose statement. It doesn't change the substance or 14 the intent; it just puts back in some statutory 15 language about aquatic herbicide. 16 So, in the first part of the purpose 17 statement, we're talking about our overall purpose of 18 guiding all aquatic vegetation management activities. 19 And, in the second part, we are making it clear that 20 that specifically refers to aquatic herbicides and 21 using exactly the statutory language to do so. 22 So this is not, we don't believe, a 23 substantive change. It is merely -- and this is, 24 again, in response to a request by SMART and Clean 25 Water Action. It merely makes it clear specifically ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 56 1 that our purpose statement deals with all aquatic 2 vegetation control activities and, specifically, has 3 particular measures that are going to deal with aquatic 4 herbicides. So that's the only change to the rules 5 that are submitted in your package that we propose to 6 make and that we're going to ask for tomorrow. 7 The second major change is a list of -- 8 a group of standards that we're proposing to adopt that 9 will govern the content of the guidance document that 10 staff is preparing and working with the task force on. 11 Now, that guidance document is going to 12 be a crucial component of this plan, and I'd say that 13 the overall theme of these standards is that governing 14 entities should try to prevent aquatic vegetation 15 problems through overall lake management strategies 16 where they can do it. And where control measures do 17 become necessary, the control measures need to be 18 tailored to the nature of the problem and consistent 19 with the principles of integrated pest management. 20 The inclusion of these standards was 21 again prompted by a comment from SMART and Clean Water 22 Action, but the standards that we're proposing, the 23 actual eight standards that are in the rules, are 24 different in a couple of respects from the ones that 25 SMART and Clean Water Action propose. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 57 1 The two things that we're not proposing 2 to put in that were requested were a preference for 3 nonchemical control measures and a preference for least 4 toxic chemicals if chemical measures are the only 5 alternative. And let me explain real quickly why we're 6 doing that. 7 Regarding the preference for nonchemical 8 measures, the staff really prefers to rely on the 9 measures of integrated past management that's in the 10 statute, which allows the use of all means to control 11 aquatic vegetation problems as long as they're the most 12 economical and will cause the least possible damage to 13 persons, property, and the environment. And staff is 14 concerned that a preference for nonchemical measures in 15 the standards would lead, potentially, to inappropriate 16 management choices in some cases; for instance, the 17 unwise use of grass carp, which is a nonchemical 18 measure. 19 Regarding the other standard that we're 20 not proposing to include, that one relates to 21 preference for least toxic -- or less toxic chemical 22 methods, and I think that we can all agree that less 23 toxic methods are preferable. I think the issue is 24 that -- whether Parks & Wildlife Department has the 25 capacity to evaluate, among various EPA or TDA ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 58 1 regulated pesticides, which are better and which are 2 worse in a particular case. We'd propose to leave that 3 where it is right now regulatorily, with the EPA and 4 the Texas Department of Agriculture, and have that 5 dealt with through herbicidal labeling. 6 Now, the third significant change to 7 the -- from the proposal that we published with your 8 approval back in June is the greater definition of 9 requirements for approval of local plans. We've just 10 sketched out, in more detail, how a local governing 11 entity of a lake is going to get a plan approved, and 12 this was a comment that was made by TNRCC, among 13 others. People just want a little more guidance. If 14 they wanted a plan that governed their own lake, how 15 are we going to get this done? The statute talks about 16 Parks and Wildlife, TNRCC, and TDA all needing to 17 approve this plan. So how are we going to get that 18 done? Well, we've put some descriptive language in the 19 rules. 20 The fourth major change that we're 21 proposing from the published proposal relates to the 22 guidance document, and we had a number of comments 23 that -- where people said "Well, it seems to us that 24 our real decision making is going to be based on what's 25 in the guidance document and not what's in the rules. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 59 1 How are we going to know what's in the guidance 2 document; how are we going to know when that changes?" 3 So we've put some measures in the rules 4 that will make it clear that the guidance document, of 5 course, will always be available for public review, and 6 if we propose to change the guidance document, we're 7 going to do some public notice and give everyone a 8 chance to look at that so it won't happen in secret or 9 without folks being aware. 10 Now, I'd like to summarize the comments 11 that we've received. We got about 30 comments. I'm 12 not going to go through them all; I'm going to try to 13 group them and tell you the gist of them and how we 14 propose to respond. 15 We had overall support from those 16 groups: City of Austin, Guadalupe/Blanco River 17 Authority, Texas Agriculture Association, and the Texas 18 Agricultural Industries Association, a fairly broad 19 spectrum. 20 We got one comment in opposition from 21 the City of San Angelo, and I believe that the City of 22 San Angelo's comments reflects an incorrect perception 23 that these rules are some kind of unfunded mandate on 24 local governments, which they're not. They're not -- 25 there's -- what we're doing is trying to organize a ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 60 1 process that really, to some extent, exists already. 2 And I don't think that we're imposing any significant 3 mandates on local governments, and accordingly, we 4 don't agree with that comment. We think it reflects an 5 incorrect perception. 6 We received a number of comments 7 relating to Tradinghouse Creek Reservoir. There was an 8 article published in the Waco paper that picked up our 9 press release about these rules, and a comment was made 10 in the article, by a non Parks and Wildlife person, 11 that the Parks and Wildlife's policy or rule or 12 standard would be a 30-percent -- would not take 13 action regarding nuisance aquatic vegetation problems 14 until there was a 30-percent lake coverage, and that 15 got the good people of Mclennan County pretty agitated, 16 and they contacted their legislators. And, in fact, 17 the rules don't say anything like that. All issues of 18 aquatic vegetation are going to be evaluated on a case 19 by case basis, based on the standards and the rules and 20 in the guidance document. And so this comment we've 21 addressed by talking to the folks in Mclennan County 22 and their legislators, and we think that they are -- 23 they understand that this rule is not going to be a 24 problem for them in that manner. 25 We got a comment from Novartis Crop ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 61 1 Protection, which is a herbicide manufacturer, and they 2 asked for some things in the rules that we think are 3 not consistent with our statutory authority. They 4 asked for an emergency provision that would essentially 5 bypass the notification requirements that are in the 6 statute. We don't think we have authority to give 7 that, and we don't see a good reason for doing so. 8 They asked for a due process provision, 9 essentially, on disapprovals of control measures or 10 approvals of control measures. We think that is -- 11 would import sort of a contested case approach into 12 these rules, and we don't think that's appropriate or 13 what the legislature intended. 14 We got comments from Sabine River 15 Authority, and you've heard the Sabine River 16 Authority's comments, I believe, before, at the 17 commission meeting in August. And their overall 18 comments are not so much focused on the content of 19 these rules as on this overall statewide approach to 20 nuisance aquatic vegetation. They -- and I think 21 other river authorities also -- are looking for more 22 funding to address these problems and for a liability 23 cap. And these, of course, are things that are not 24 addressed in the rules; they can't be. But I just 25 thought it was important to bring to you the notion ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 62 1 that this is still -- this is still part of the River 2 Authority's agenda for dealing with nuisance aquatic 3 vegetation, even though it's not something that we can 4 address in the ÿrules. 5 We also got extensive comments, as you 6 know, from SMART & Clean Water Action, and I think that 7 we have reflected those comments fairly extensively in 8 the rules, with the exception of the areas that I've 9 already pointed out. The rules now include a purpose 10 statement; they include standards; they included 11 enhanced public notice of herbicide use; they include 12 greater definition on how local plans will be approved, 13 and a process for guidance document modification, and 14 those were all SMART & Clean Water Action issues. 15 Now, staff's plan, going forward from 16 this point, is to continue to work with the stakeholder 17 group on the guidance document, incorporating new 18 information and proposed changes that we are continuing 19 to receive. There's a meeting now scheduled for 20 December the 5th, of the task force, and we intend to 21 have a final version of the guidance document available 22 at the time the rules become effective. 23 Now, this is the recommended motion that 24 we're going to ask that the -- respectfully, that the 25 commission be prepared to adopt tomorrow. ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 63 1 COMMISSIONER ANGELO: Mr. Chairman, I 2 know this is a very complicated or, at least, very 3 critical process and that there's a lot of concern 4 about herbicides and so on, but I -- in reading 5 through this, I wondered if this process is not 6 burdensome enough that it's going to cause some people 7 who maybe ought to be doing something to neglect to do 8 anything just because they don't want to go through the 9 steps that we're providing that they go through. Has 10 that question been raised, or am I overly concerned 11 about that? 12 MR. SWEENEY: I think that is a 13 possibility. The particular measures that we have in 14 there about the specific steps that you need to go 15 through before you apply aquatic herbicide are directly 16 out of the statute. 17 COMMISSIONER ANGELO: I wondered about 18 that. 19 MR. SWEENEY: Yeah. So we really have 20 added very little to the direct statutory language -- 21 COMMISSIONER ANGELO: We really don't 22 have much flexibility. 23 MR. SWEENEY: We really just put them 24 virtually word for word into the regulations. 25 DR. McKINNEY: But there is concern, and ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 64 1 I think there's -- it's kind of a mix, and we had a 2 lot of discussion about it, in that, in fact, to some 3 degree -- how do you balance it? To some degree -- 4 and, certainly, it was a great concern of river 5 authorities and those who manage water bodies, and, in 6 fact, they don't want individuals going out and doing 7 things, because they want to know what's happening to 8 that water. So they were supportive of notifications 9 and those types of things which are somewhat of a 10 burden, but, also, at the same time, they would come 11 back and say, "Well, we certainly -- if you do too 12 much, they'll just say, "Well, the heck with all this. 13 I'm going to go do it anyway." 14 So it's a legitimate point and a good 15 question of trying to make a balance of how do you make 16 sure we know what's going on but don't make it so 17 burdensome that they go and, you know, do it behind the 18 scenes anyway? So it's not an easy answer. 19 COMMISSIONER ANGELO: Presumably, if 20 it's -- if we do run into that sort of problem, we'd 21 have to go back to the new legislature to get it 22 changed. Is that what you are saying? Get some 23 substantive changes? 24 DR. McKINNEY: I think that's what we're 25 going to see, and as we apply them for the first time, ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 65 1 there's going to be notification requirements. We'll 2 finally kind of get a handle on how much is going on, 3 we think. So that will give us some information and 4 data to see are we where we need to be or need to go. 5 We just don't have the information right now. We don't 6 know. 7 CHAIR BASS: Any other comments? 8 Chair would entertain a motion. 9 COMMISSIONER DINKINS: So moved. 10 COMMISSIONER HENRY: I second it. 11 CHAIR BASS: All in favor? Any opposed? 12 Motion carries. Thank you. 13 (Motion carries unanimously.) 14 AGENDA ITEM NO. 8: OTHER BUSINESS. 15 CHAIR BASS: I don't believe there's any 16 other business to come before the Regulations 17 Committee. 18 19 20 21 22 23 24 25 ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 66 1 THE STATE OF TEXAS ) COUNTY OF BEXAR ) 2 3 4 I, STACI D. SLAYDEN, a Certified Court 5 Reporter in and for the State of Texas, do hereby 6 certify that the above and foregoing pages constitute a 7 full, true, and correct transcript of the minutes of 8 the Texas Parks and Wildlife Commission on November 8, 9 2000, in the Commission hearing room of the Texas Parks 10 and Wildlife Headquarters Complex, Austin, Travis 11 County, Texas. I FURTHER CERTIFY that a stenographic 12 record was made by me at the time of the public meeting 13 and said stenographic notes were thereafter reduced to 14 computerized transcription under my supervision and 15 control. WITNESS MY HAND this ____ day of 16 ________________________, 2001. 17 18 ________________________________ 19 STACI D. SLAYDEN, Texas CSR 7290 20 Expiration Date: 12/2001 21 7800 IH-10 West, Suite 100 22 San Antonio, Texas 78230 23 (210) 377-3017 24 25 ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016 . 67 1 2 _______________________________________ LEE M. BASS, CHAIRMAN 3 4 _______________________________________ CAROL E. DINKINS 5 6 _______________________________________ DICK W. HEATH 7 8 _______________________________________ NOLAN RYAN 9 10 _______________________________________ ERNEST ANGELO, JR. 11 12 _______________________________________ JOHN AVILA, JR. 13 14 _______________________________________ ALVIN L. HENRY 15 16 _______________________________________ KATHARINE ARMSTRONG IDSAL 17 18 _______________________________________ MARK E. WATSON, JR. 19 20 21 22 23 24 25 ESQUIRE DEPOSITION SERVICES 7800 IH-10 WEST, SUITE 100, SAN ANTONIO, TX 78230 (210)377-3027 (800)969-3027 FAX (210)344-6016
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