Texas Parks and Wildlife Commission
Regulations Committee

August 26, 2009

Texas Parks and Wildlife Commission
Regulations Committee Meeting
Cactus Room
Amon G. Carter Jr. Exhibits Hall
Will Rogers Memorial Center
Fort Worth, Tarrant County, Texas

BE IT REMEMBERED, that heretofore on the 26th day of August, 2009, there came to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission in the Cactus Room of the Will Rogers Memorial Center, to wit:





COMMISSIONER HOLT: Welcome, everybody. This is our annual public meeting we call it — actually, this afternoon. We did this in Houston last year, and we are glad to be in the great City of Fort Worth this year. And reaching out to our constituents and citizens of Texas all throughout the state. As I try to remind some of the people at headquarters is, you know, Austin isn't the center of the universe. I think Washington, D.C., thinks they are.

But so we are glad to be out here today. It is great to be here today. And with that, we will get kicked off right away. We have a long day today. The meeting is called to order, August 26, 2009, at 9:00 a.m. Before proceeding with any business, I believe Mr. Smith has a statement to make. Carter Smith.

MR. SMITH: I do. Thank you, Mr. Chairman. A public notice of this meeting containing all items on the proposed agenda has been filed in the Office of the Secretary of State as required by Chapter 551, Government Code, referred to as the Open Meetings Act. I would like for this fact to be noted in the official records of the meeting. Thank you.

COMMISSIONER HOLT: Great. Thank you. We will begin with the Regulations Committee. Commissioner Friedkin, please call your committee to order.

COMMISSIONER FRIEDKIN: Thank you, Mr. Chairman. The first order of business is approval of previous committee meeting minutes. Do we have a motion for approval?



COMMISSIONER FRIEDKIN: Moved by Commissioner Bivins, second by Commissioner Martin. All in favor?

(A chorus of ayes.)


(No response.)

COMMISSIONER FRIEDKIN: Hearing none, the motion carries. Update on Parks and Wildlife progress in implementing the TPW Land and Water Resource Conservation and Recreation Plan. Carter.

MR. SMITH: Thank you, Mr. Chairman. Just a couple of things I want to note for you all this morning. One, thanks to the efforts of Senator Carona close by here, and the work of Colonel Flores and others, there was legislation passed that is going to allow active duty peace officers inside the Department, so headquarters police, park police and our Game Wardens to be able to purchase their retired firearms. And so that is kind of a standard MO for law enforcement agencies, and so it is nice to see that formalized for the Agency. Kudos to Pete for working on that, on behalf of the Agency.

Also, I just want to call your attention. In mid-September, the 14th through the 16th, the Association of Fish and Wildlife Agencies, along with the National Association of Conservation Law Enforcement Chiefs are going to hold their annual meeting in Austin. So we have a chance to host them. Lydia Saldana has been our chief point of contact although folks from throughout all of the divisions have been helping to make sure that all of our colleagues that come in from around the country are treated well.

The plenary session for the meeting should be fairly interesting. All of the states have been struggling with all of the proliferation of renewable energy development and how it impacts wildlife. So the proliferation of wind energy development, and solar and geothermal energy in places.

So we will have a plenary session. It should be interesting. With T. Boone Pickens and Jack Hunt; they are on the plenary together, to talk about their respective perspectives on the issues. They don't always mesh. So if you don't have anything Monday morning, and want to come listen to that, I will encourage you to. It is a very serious topic for us.

The next thing I want to mention, and I have had a chance to visit with a number of you. We had the discovery of a very unwelcome interloper, back in March, with the discovery by our Inland Fisheries team of zebra mussels up in Lake Texoma. And our Inland Fisheries team and Law Enforcement team and Communications team have been working very hard to kind of educate boaters about the dangers of that exotic mussel coming into Texas.

Unfortunately, our biologists have now discovered that it is reproducing in Texas waters. We found it in Texoma, we found it in the Red River. And now believe that it has come into Lake Lavon which is the headwaters of the Trinity River. So this has very serious implications for water quality, our native fish. Also our native mussels. It has been a huge problem in the Great Lakes. And we were certainly hoping that that would not happen. But it is here now.

Our strategies that we are implementing, and in fact, I have got a white paper that I am going to pass out, that our biologists at the Heart of the Hills did on zebra mussels, just to acquaint you all with kind of the biology and natural history and what is likely to happen here. We are trying to contain it, to the extent we can. We are going to have to work very closely with water management authorities, on water movement projects from basins that have zebra mussels going to water bodies that don't, and to see if we can get precautionary measures taken to try to stop it.

But it is very bad news, and I just wanted to make sure that you all were aware of the gravity of the situation, and the fact that we have got a plan in action being put in place, to try and address it. So with that, Mr. Chairman, I think I will conclude my remarks, and turn it back over to you.


COMMISSIONER HOLT: Well, that was depressing.

MR. SMITH: I should have ended on a sunnier note. I will do better on my next update.

COMMISSIONER FRIEDKIN: Or provided a solution, at least.


COMMISSIONER FRIEDKIN: Thanks, Carter. Okay. Committee Item Number 2 is Listing of Certain Mussels Species as State-Threatened — Permission to Publish Proposed Changes in the Texas Register. Matt Wagner.

MR. WAGNER: Yes. You might notice, I am not Wendy Gordon. She is not able to join us this morning. But I am Matt Wagner. I am Program Director for Wildlife Diversity. And it is kind of an interesting segue into our topic this morning on amendments to our state threatened list. And we are coming to you with permission to publish some proposed changes.

There are 15 native freshwater mussels that we would propose as state threatened in Texas. About two-thirds of these are endemic only to our state. Very unique organisms, obviously threatened by a lot of different factors, water quality, water quantity, and now the zebra mussel. Just to remind you that threatened species are those that are defined as likely to become endangered in the future. And under our Administrative Procedure Act, a 30-day notice is required prior to adoption.

There are six species that occur in our East Texas watersheds. Most of these within the Neches and Sabine River watersheds. There are three that actually occur in the Trinity River watershed, in the upper reaches. In central Texas, there are five species. And I don't know if you can read those maps from where you are. I would be happy to list those for you. And we can provide that information.

We just really want you to know the uniqueness of where these organisms occur within our watersheds. And then on the Rio Grande, there are four species that occur. All of these together make up the 15 that we have proposed for listing. So we are requesting permission to publish these amendments to Chapter 67 in the Texas Register for public comment. Should we get that permission, we would be coming back to you in November then for adoption. Are there any questions?

COMMISSIONER FRIEDKIN: Thanks, Matt. Any questions by the Commission? Yes.

COMMISSIONER HIXON: I'm just curious. Because in the materials provided to us, and you know, some are critically imperiled and it says data only, in some cases. One particularly only goes back to 2000, and nobody has seen one since. Why wouldn't — I mean, threatened is sort of the first step. I mean, I know you don't want to jump to any great lengths to do something that you might regret later, but I was just curious.

MR. WAGNER: Right. Well, the classification for threatened actually has the same regulatory status as endangered in terms of take and possess. So from a protection standpoint, it is the same. Our threatened list though, includes additional species that aren't federally listed. And so that is the list that we have been modifying over the years based on our information.

And a lot of these species really do need more work. We have got some research going on right now with a team that has been doing some statewide surveys. We want to continue that work to know more about the status of these species.

COMMISSIONER FRIEDKIN: Thanks, Matt. Any other questions?

(No response.)

COMMISSIONER FRIEDKIN: Okay. No further questions or discussion, I will authorize staff to publish this item in the Texas Register for the required public comment period. Thank you, Matt.


COMMISSIONER FRIEDKIN: Yes. Item 3 is Interstate Wildlife Violator Compact — Permission to Publish Proposed Changes in the Texas Register. Major David Sinclair.

MR. SINCLAIR: Mr. Chairman, members, I am Major David Sinclair, Chief of Fisheries and Wildlife Enforcement. This morning, I will be seeking your permission to publish in the Texas Register the Violator Compact. During this past legislative session, one of the Sunset Commission's recommendation was for the Commission to join the Interstate Wildlife Violator Compact. And it was part of House Bill 3391, which was enacted, signed by the Governor. And you have got the authority, even before it goes into effect on September 1 to publish rules for the Violator Compact.

The compact basically does two things. It allows Texans to treat non-residents just like Texas residents when it comes to violations. And that is just for the minor violations, mostly Class Cs. We would issue a citation as opposed to instantering the person for violating. And currently, we do the instanter. And that just takes up a lot of time.

The other thing that it allows is if someone leaves, is cited, they leave the state, then their license can be suspended in the state that they are from, as well as here in Texas. And this is reciprocal, vice versa. As you will see, Texas has been added to the map.

Now the legislation has been enacted, effective September 1st, 31 states currently are members of the compact. And after these regulations are adopted, we will be going to the Compact and asking permission to join. And we will be State Number 32.

Several benefits. Game Wardens will be able to spend more time doing their routine patrol, making contacts, rather than arresting a violator and taking them before a magistrate or taking them for incarceration. It also relieves the burdens on the jails and courts. For failure to appear, it reduces those non-residents, they just can't ignore now, because they risk losing their license in their home state.

And then the wildlife law violators are put on notice that their activities in one state can affect their privileges in all the states. So with that in mind, staff requests permission to publish proposed rules that would authorize the Executive Director or designee to enter into the Compact and withdraw from the Compact, which was actually part of the statute. Appoint a Compact administrator to serve as Texas representative on the Board of Compact Administrators, and then refuse to issue a license tag or permit, we talk about refusing the future purchase.

Right now we have the ability to go to the Texas Administrative Court in order to suspend someone's license. But it is a very lengthy process. It costs the Agency to do that. And by the time we go through that process, it is probably easier just to refuse future issuance of license. And then receive information from, and provide information to the other member states and process non-resident violators who are residents of other member states.

Now some of you that attended the March meeting, we talked at that time about picking and choosing violations, and whether we should go across the board. At that time, we were thinking pick and choose. But after contacting several of the other states, and finding out what they are doing, Indiana is the only one that I have checked with so far that picks and chooses the violations that they want to suspend or refuse. The other states are all across the board.

And with that in mind, that would be Law Enforcement's recommendation, that we do go across the board on all violations. When we talk about, and I think the example that I used was baiting for deer. Some states prohibit that; we allow it. But even in our own state, we have different regulations. We don't allow for the baiting of turkey in East Texas but we do in the rest of the state. So with that in mind, we would suggest that it be across the board. And when this goes into effect, that is the point in time that we will start with the suspensions. We won't be able to back up and pick up anyone that has already been suspended here in Texas. Kind of interesting, in checking with the Compact, there are 208 Texans that are on suspension in other states, today.

So I thought that was pretty interesting. But we won't be able to back up. It will be starting day one, it will be a fresh new day. And with that, I would close. And I would be glad to answer any questions.

COMMISSIONER FRIEDKIN: Thanks, David. Commissioner Duggins.

COMMISSIONER DUGGINS: Does that mean, for example, in California, where I think it is illegal to bait for deer, if a California resident is cited for baiting deer, that we will recognize that violation, even though it wouldn't be a violation here?

MR. SINCLAIR: That is correct.


COMMISSIONER FRIEDKIN: All right. Any other questions?

(No response.)

COMMISSIONER FRIEDKIN: Thank you, David. Thank you for sharing that. Okay. With no further questions or discussion, I will authorize staff to publish this item in the Texas Register for the required public comment period. Item Number 4. Migratory Game Bird Proclamation, Early Season Regulations Update and Late Season Migratory Regulations. Action item, or action recommendation. Vernon.

MR. BEVILL: Mr. Chairman, members of the Commission, my name is Vernon Bevill. I am the program director for Small Game and Habitat Assessment. And I am here today to recommend proposed seasons for late season migratory game birds. This is the culmination of a long process that began back in March.

I think we have a number of things to point out this time. We are still in the liberal package for migratory birds. I think this is the 14th consecutive year that we have had a liberal seasons and bag limits. And when we adopted the AHM, Adaptive Harvest Management, approach to these bird stocks, we never thought we would be in the liberal package this long; there is a liberal, moderate and restrictive. We are out of the Hunter's Choice bag experiment at Texas. Participated in the last three years.

We are going back to conventional bag. And that will require some modifications. We have earlier closure of the duck season than the framework would allow us. And I will talk about that when we get to that. We have modified the Youth Hunt weekend to not conflict with the deer Youth Hunt weekend. And there was a few changes we were making to the sandhill crane season in Zone C.

For the north and south duck zones, we have the Youth Hunt, that will be October 24th and 25th. The regular gun season opens on the 31st of October and closes the Sunday after Thanksgiving, the 29th. It will reopen on the 12th of December, and run to the 24th. It could run to the 31st, but because we know from biological evidence that pair bonding is significantly advanced by the mid, middle part of January, and there is considerable information that the early pair bonders are also the early nesters.

Early nesters are also the most consistent producers of next season's duck stocks. That we are recommending closing the duck season a week earlier than we could on the 24th. Mottled ducks, we had a great deal of discussion at the service regs committee meeting on mottled ducks. We are still at a variance with our data versus their data on mottled ducks.

But since we are out of the Hunter's Choice experiment, they have requested that we reduce the harvest impact on mottled ducks by 20 percent. Mottled ducks are a species that you kill more of at the beginning of the season than later on. And so when we look at the per day harvest on mottled ducks, we noted that we could get to that 20 percent reduction they requested by delaying the opening five days.

So in the sixth day of the regular duck season, which is November 5th, mottled duck can be legally taken and be one each day for the season. And this is how this season breaks out in the north and south zone on the calendar for your view.

And the High Plains Mallard Management Unit, I always call it the State of West Texas, because they get different hunting opportunities than the rest of the state; 23 extra days. And their season for the youth opens on October 17th and 18th; regular gun season starts with a very short weekend hunt on the 24th and 25th, then reopens the following weekend on Friday and runs through January 24th to get in those extra days.

And the mottled duck season, for those who might find a mottled duck out in the High Plains Mallard Management Unit will be opening on November 2nd. And this is how that calendar will appear.

Now that we are out of the Hunter's Choice bag, and back to the conventional bag, the Hunter's Choice had a five-bird total bag. The conventional bag is six. We can harvest five mallards, of which two can be mallard hens. We are adding a third wood duck to the bag limit, which would be a boost particularly for East Texas waterfowl hunting. We have a two-scaup limit, a two redheads.

And last year, you will remember I told you that we were the only flyway that had an opportunity to harvest canvasbacks, because the prescription on canvasbacks last year would have called for a closed season, nationwide. But there was enough harvest allotment within that prescription, that the Central Flyway could finish its experiment. So we will have a canvasback and pintail season law this year.

With the loss of the Hunter's Choice, we are going back to the dusky duck configuration for the brown ducks, so to speak. And that will be one of any of the mottled, black or Mexican ducks.

For the proposed goose season, the Western Goose Zone, light and dark geese both open on November 7th and run to February 7th. The bag limit for light geese is 20 in the aggregate. Dark geese is four Canadas and one white-front. And the light goose conservation order then opens on February 8th, the day after the regular season closes, and runs to March 28th. No daily limit and no aggregate limit for that conservation order.

In the Eastern Goose Zone, it will open concurrent with the duck season, on October 31st, and it will end concurrent with the duck season on the 24th of January. The exception to that is the white-fronted goose. In order to have a two-bird bag limit for white-fronts we had to take a slight reduction in the length of the season. So it will end on the 10th of January.

And again, bag limits are 20 of light geese in the aggregate, three Canada geese, and two white-fronted geese. And the conservation order opens on the 25th of January and closes on the 28th of March.

For the sandhill crane season, Zone A will run November 7th through February the 7th. Zone B which is a fly-through area for the whooping crane, we delay that opener and open on the 27th of November and run through the 7th of February. Both of these, Zone A and B have a three bird bag. Then you get down to our Coastal zone, Zone C. And we had a recent discussion about the opening date of that Zone C.

And where we had originally proposed to open on the 26th, after we visited with the whooper crane recovery team and a number of our staff, we opted to move that opener to Saturday the 19th of December, and run through the 24th. We can only have 37 days in that Zone C season, and this gives us a full complement of the 37 days, rather than losing a week, two-bird bag.

For falconry, the North and South Zone, the extended season is January 25th through February 8th. And the High Plains Mallard Management Unit uses all 107 days for waterfowl hunting within the gun seasons. And there is no extended falconry season.

We had a fair amount of public comment, I think, a total of 180-something different individuals commented on all of the various proposals. And we, as you can see in these comment slides, we had very strong agreement on every one of our proposals that we put forth. And Mr. Chairman, that ends my presentation. I will be glad to answer any questions.


MR. BEVILL: I recommend you move this to the third calendar.


COMMISSIONER BIVINS: Can you refresh my memory on the second season South Zone dove dates?

MR. BEVILL: It's the South Zone dove dates for the second season —


MR. BEVILL: Opens the day after Christmas.


MR. BEVILL: And closes Sunday the 17th, I believe it is, of January, the day before Martin Luther King holiday.

COMMISSIONER BIVINS: Okay. Thank you very much.

COMMISSIONER FRIEDKIN: Thank you. Any other questions? Commissioner Duggins?

COMMISSIONER DUGGINS: Could you go back Vernon, to the two slides, the slide before that. Geese, right there, go back. Forward.

MR. BEVILL: Sandhill crane?

COMMISSIONER DUGGINS: No. Keep going. It is the one where you have the comments on geese.

MR. BEVILL: Oh, okay.

COMMISSIONER DUGGINS: There. Under the proposed geese seasons, where you have got a fifth of the — where you have 20 people disagreeing, out of curiosity, what — do you remember whether there was any consistency in the disagreement over the season?

MR. BEVILL: You know, I talked with Robert McDonald, who does the analysis of the agrees and disagrees. And he said that there was a — the disagreements on most of the proposals were kind of all over the landscape. I will recheck with him before tomorrow and see if he can ferret out some pattern here on this one for you.


COMMISSIONER FRIEDKIN: Any other questions?

(No response.)


MR. BEVILL: Thank you.

COMMISSIONER FRIEDKIN: We appreciate all your efforts. Thank you.


COMMISSIONER FRIEDKIN: It is a lot of work keeping all of that straight. Item Number 5 — excuse me. If there are no further questions or discussion, I will place this item on the Thursday Commission meeting agenda for public comment and action.

Item Number 5, Harmful or Potentially Harmful Fish, Shellfish and Aquatic Plants, Special Provision, Water Spinach Regulations. Recommended adoption of proposed changes, Dr. Earl Chilton.

MR. CHILTON: Good morning. Mr. Chairman, other members of the Commission. My name is Earl Chilton. I am Director of Aquatic Habitat Enhancement in the Inland Fisheries Division. Today, I would like to discuss water spinach, and proposed regulations for its growth and sale. Water spinach is native to India and Southeast Asia. It is in the morning glory family, as you can tell, just by looking at the flower.

It is one of the first plants that was placed on the prohibited list in the early '90s. Nobody seems to understand or remember exactly why it was placed on the prohibited list in the early '90s. It was probably because of the fact that it had caused problems in tropical areas in certain areas of the world, and it is a fast-growing plant.

It has a high protein content, and it can be used as animal feed. Water spinach is very important to the Asian community. About 30 years ago, immigrants that had escaped from the Khmer Rouge in Cambodia founded what came to be known as The Village in Rosharon, Texas. One of the vegetables they began to cultivate was water spinach.

It is also important, not only to the Cambodians, it is an important food plant for the Chinese, as well as the Vietnamese. Indeed, in 2003, when we became aware of the water spinach that was being grown there, I had the opportunity to participate in a meeting with the Vietnamese Chamber of Commerce. There were 2- or 300 people there. And they were very vehement about their support for water spinach growth. It is important to the culture.

Since the growth began just outside of Rosharon, it has been grown and sold in restaurants and retail outlets, not only in Asian markets, but also in outlets such as HEB and Whole Foods around the state. As I said before, law enforcement first became aware that it was actually being grown in Texas, in 2003. All of the production that we are aware of in Texas takes place in the Rosharon area. There are about 80 growers. They employ about 200 people. It is over a million-dollar industry at this point.

Water spinach is grown in greenhouses, because it does not grow well outside in Texas. It is advantageous for growers to harvest water spinach before it goes to seed. Productivity is significantly increased if they are able to cut it before it goes to seed. Otherwise, they have to start over.

Consequently, examinations in 2003 in conjunction with law enforcement and some federal agencies found that none of the plants we inspected had gone to seed. Recent inspections for exotic species permits similarly found no plants that had gone to seed.

At the last Commission meeting, we discussed limiting water spinach production to the green stem variety, or the upland variety that is used in Florida. One of the reasons is because it can be grown away from water, where it could potentially infest our waters. Since that time, I had a chance to go to Rosharon and visit some of the greenhouses there, and inspect a number of the greenhouses there. And I found, and these are some of the pictures I took, including closeups of the water spinach.

I found none of the red stem plants growing there. One of the reasons for that is that the growers told me that the stores won't buy red stem water spinach. So not only, they don't want to grow it, but they can't even sell it. And additionally, I found no plants going to seed when I was looking around.

Well, the question is, how do we ensure that this doesn't happen here in Texas? In order to determine the probability of the water spinach could get out of control in Texas, we conducted a risk assessment. Beginning in 2003, we looked in the Rosharon area where water spinach was being grown to determine if any of it had gotten out, was growing in the wild. We focused on the Rosharon area, and downtown Houston.

At that time, I helped survey areas in selected neighborhoods and in and around the Houston area. But I found no water spinach growing. I tried to follow up on all the leads that I had, including people's backyards, and still found no water spinach growing. Even after the devastation of hurricanes over the last few years, where some of the greenhouses were destroyed, we still found no water spinach growing outside of the greenhouses, no water spinach in the bayous or the creeks in the Rosharon area, or anywhere nearby.

Inspections conducted in 2009 again, found no water spinach established outside of greenhouses. After we were unable to find water spinach growing outside of greenhouses, Mr. Durocher asked me to investigate the possibility of taking it off the prohibited list. However, in order to be conservative, we opted to look at other factors as well, such as temperature, tolerance, and overall distribution of the plant before making a decision.

Part of the reason we think we can't find water spinach growing outside of greenhouses is that researchers have reported that it grows well outside greenhouses only when the average daily temperature is in excess of 77 degrees. The average daily temperature for Houston is only 68 degrees. In fact, the average daily temperature does not exceed 77 degrees for any of Texas' largest 20 cities that I looked at, including Brownsville, which had the highest average daily temperature of only 73 degrees.

Currently, water spinach is established in only three states. Small beds are present in only two counties in both Florida and California. It is present on several of the islands in Hawaii, most likely because it is warmer there. It is a tropical area.

The question is, is water spinach acting like an invasive plant? Is it acting like an invasive organism at all? When we compare water spinach to what has happened with several other aquatic invasive species, we find that it is not acting like an invasive species. For example, giant salvinia in the upper right hand corner has spread to 12 states since its discovery in the U.S. in 1998. Similarly, water hyacinth became so abundant after its introduction in 1884, that by 1898, the Congress had directed the Corps of Engineers to eradicate it.

Similarly, zebra mussels became established in the United States in the late '80s, the early '90s, and within 20 years, we are talking about in Texas now, and in the West, they have invaded the Great Lakes, the Mississippi River, and are actually out in Lake Mead near Las Vegas now. Not so with water spinach. Water spinach has been cultivated and sold on a widespread basis for at least 30 years, with acreage in only four counties, where it is established and it was estimated at less than 10 acres.

The finding of our risk assessment, the findings of our risk assessment were the water spinach, again, has been cultivated and sold for over 30 years. There is no evidence that it can establish in the wild in Texas. Texas climate is a poor match, compared to the climate in areas where water spinach is native. I looked at an Australian program, and I had help from the U.S. Fish and Wildlife Service to do this, where we compared Texas climate with where water spinach is growing around the world. And the match was quite poor.

Temperature data indicated would be difficult for water spinach to survive winter temperatures in Texas outside of greenhouses. Water spinach has not exhibited a propensity for rapid spread in either Florida or California. Again, it can still only be found in two counties in each state, on a very limited basis. In Florida, it is just a few acres. And in California, it is just a few acres.

Also at the last Commission meeting, we discussed what the Texas Invasive Plant and Pest Council had to say about it. Since that meeting, they have had a chance to look at our risk analysis, and you will find that on their website, they actually changed their position on water spinach. They cite our risk assessment findings and have taken a softer view on water spinach.

Also, water spinach is controllable with herbicides. I have been in contact with the folks in Florida, and more recently, they have told me that with some of the new herbicides that are available it is actually pretty easily controlled.

The new proposed regulations would allow water spinach to remain a restricted species in Texas, but due to its relatively low risk, cultivation by permitted growers would be allowed and unrestricted possession for personal consumption would also be allowed. Commercial cultivation would take place only in TPWD-permitted facilities. These facilities would be inspected at least twice a year. In some cases, more often.

Under the permit, we would ensure that water spinach in these permitted facilities is not going to seed; that it is only being cultivated in greenhouses, and that only the green stem variety was being grown. Wholesale and retail outlets would also be allowed to possess water spinach and sell it for personal consumption, if they retain invoices from permanent growers within Texas, and from persons selling water spinach legally outside Texas. These are the comments we received so far. Support was about 55 percent.

The reason I have a question mark by the opposed is, at least one person, and I am not sure whether it had to do with the language barrier or what, but at least one person said that they were opposed to the proposal, but in their comments, they said that they didn't understand why TPWD was going to outlaw it, and that it really needed to be eaten and it was very important to the Asian community. So it looked like they really didn't understand what the proposal was about. Are there any questions?

COMMISSIONER FRIEDKIN: Could you go back to the risk assessment slide real quickly? A few back. Okay. So water spinach has not exhibited a propensity for rapid spread. You may have mentioned this, but do we have any indication that it has spread at all, in either Florida or —

MR. CHILTON: Not in Texas, no.

COMMISSIONER FRIEDKIN: Nor in Florida or in California?

MR. CHILTON: Yes. It has been in the same two counties for years.

COMMISSIONER FRIEDKIN: Is it controlled there?



COMMISSIONER HOLT: What do you mean, controlled? I am sorry.

COMMISSIONER FRIEDKIN: As we are suggesting.

MR. CHILTON: It is —

COMMISSIONER HOLT: It is regulated?

MR. CHILTON: Excuse me?

COMMISSIONER HOLT: Explain controlled.

MR. CHILTON: They are able to — apparently, it may be reintroduced for some reason. We don't know why. But one to two acres, actually, according to the person in Florida, about a quarter of an acre shows up every couple of years, and they spray it.

COMMISSIONER FRIEDKIN: No, I am sorry. Good clarifying question. So controlled, regulated by a state agency, or not?

COMMISSIONER HOLT: In California and Florida, is it outlawed? Is it regulated?

MR. CHILTON: It is regulated.


MR. CHILTON: In Florida, they are allowed to sell it. They are allowed to grow it.

COMMISSIONER HOLT: They are allowed to sell it.

MR. CHILTON: They are allowed to grow it with a permit. They are allowed to sell it. I got mixed results when I talked to the Florida folks. The one person said they are allowed to sell it outside the state. Another person assured me that they were able to sell it, they were selling it all over the state. But they are growing it and they are selling it in Florida.


COMMISSIONER BIVINS: What is the current situation in Louisiana?

MR. CHILTON: I am not aware of water spinach being grown in Louisiana. It may be, but I don't know.

COMMISSIONER FRIEDKIN: Commissioner Duggins.

COMMISSIONER DUGGINS: Mark, I can answer at least Louisiana's position. And last year it chose to outlaw it, January of '09 or '08. I forget which it is. They've taken a position it is on a banned list.

COMMISSIONER FRIEDKIN: But we don't — do we have the benefit of any of that research, so you are not familiar with Louisiana in that situation from a research standpoint?

MR. CHILTON: The last time I checked with Louisiana, it hadn't actually been outlawed yet but it was proposed.

COMMISSIONER DUGGINS: I spoke with the biologist there, and I will give you that information tomorrow if we take it up tomorrow. I left it in files at the office. But I did speak to somebody and got the reasoning behind their position, their decision to ban it.

COMMISSIONER FRIEDKIN: Can you share that reasoning?

COMMISSIONER DUGGINS: Yes. They said they didn't want to take the risk. That they had found too many species that they had thought could not spread had spread. She mentioned one, I think it was water hyacinth. I am not sure without looking at the note, where they said that the biologist had predicted it could never survive in north Louisiana, and it was now being found in Arkansas.

And that she also believed that spinach could adapt to greenhouse growing, in a greenhouse and change, and be able to make it in climates that it had previously not made it. That was a concern. So they chose to put it on their prohibited list in the past year.

MR. CHILTON: Anything can adapt. But currently, it looks like it is not growing in Texas. It hasn't been able to actually grow outside of greenhouses. And I have been in those greenhouses. And there is at least a 40 to 50 degrees difference in the greenhouse versus what is going on outside the greenhouse. It is like an oven in those greenhouses. It seems like it would be difficult to adapt. But animals do, and plants.

COMMISSIONER DUGGINS: Well, zebra mussels for example, we thought could never survive in the warm waters of Texas. And they have adapted and are now thriving apparently.

MR. CHILTON: Well zebra mussels are acting exactly like invasive species typically act. Again, if we go back to this slide, if we look at the species that we know have become invasive in Texas, and have become invasive around the country, there is a typical MO. They come in and within 10 to 20 years, typically, they get out of control. We look at giant salvinia for example, we know it is causing us problems in Texas. It has only been here since 1998, and it has already spread to 12 reservoirs. Similarly, zebra mussels have been here about 20 years, and they have spread to nearly half the country. And water hyacinth was here for 14 years before it became such an issue that Congress had to pass legislation to get it under control.

So some of these aquatic species typically if they are going to be invasive, they become invasive pretty quickly; within 10 to 20 years. On the other hand, water spinach simply isn't acting like that. It has been here for 30 years.

It has been in the country for 30 years. It has been widely sold. And it has had ample opportunity to escape greenhouses, both in Texas, California and in Florida, and after 30 years, the best we can find, there is less than 10 acres of it.

COMMISSIONER BIVINS: What kind of data do we have from 30 years ago? Is it pretty extensive?

MR. CHILTON: From when? I am sorry.

COMMISSIONER BIVINS: You say it has been in Texas for 30 years, or it has been grown in Texas for 30 years. How much data, or how precise is the data that we have from 30 years ago regarding, you know, the introduction of it into Texas?

MR. CHILTON: Well, we know it has been growing in Texas for 30 years from eyewitness accounts. We have talked to some of the people that were actually — that actually colonized that area, and started growing it, some of the older Cambodians there. When they came over here, they started growing it. And since that time, as you know, there have been numerous hurricanes that have destroyed those greenhouses.

If you look at those greenhouses, it is not too difficult for a hurricane to knock one of those things down. So they have been knocked down any number of times. And yet, water spinach has been unable to grow in Texas outside of those greenhouses. As I said, those greenhouses are quite hot.

Also if you look in Florida, where, in the upper peninsula, about the same latitude as Texas where we are talking about, it is growing. Water spinach tried to grow outside greenhouses, but when the winter came, it died off on several occasions. It seems to be temperature that is holding it in check there. But to answer your question, we have got eyewitness accounts that it has been growing here for 30 years.


COMMISSIONER MARTIN: In waters and the areas that it is native to, have they experienced uncontrollable growth in their waters?

MR. CHILTON: In areas where it is native?

COMMISSIONER MARTIN: That it is native.

MR. CHILTON: Well, it depends. They harvest it over there. So they want it to grow that way. So it is hard to say whether it is — it is unrestricted. But typically, where it has caused problems has been in rice farms, where it has invaded a rice farm. And those rice farms are ones that are wet all year long. We actually don't do that here in Texas. They typically dry out once a year. And that is in tropical areas, where it has caused some problems like that.

COMMISSIONER MARTIN: And I was going to ask, if you knew of other states that had this prohibited?

MR. CHILTON: I am sorry?

COMMISSIONER MARTIN: Other states in the nation, if they have had this on the prohibited.

MR. CHILTON: Well, there are 12 states where it is — 11 other states besides Texas where it is actually restricted in some way. In 38 states, it is totally unrestricted use. And in several of those, such as California, Oregon, Florida, they are allowed to sell it, they are allowed to grow it. And in other ones, it is simply on the prohibited list. And just like it was in Texas 10 years ago, we don't know whether they are actually growing it there, or not. Again, in 38 states, it is legal without a permit.

COMMISSIONER FALCON: One of the things that concerns me in dealing with this specific issue, is the adaptability of any kind of species that can occur with time or changes in the genetic structure. And specifically I would like to know if you know of anybody that has been at least looking at the idea of tampering with the genetic structure to change the way that this organism grows to make it more adaptable to either temperature, humidity, et cetera?

MR. CHILTON: No. All of the operations we know about in Texas and in Florida are relatively low tech. They are just like that. And as far as I know, no one has been tampering with that.

But in order to be conservative, again, we wanted to keep it on our list, and only allow people to grow it with a permit. We are planning to inspect those facilities again, at least twice a year, so that if, should we find it outside the greenhouses, we can control it like they do in Florida and/or outlaw it completely. But that is why we want to maintain it and inspect the facilities on a regular basis to ensure that it is not getting out, just in case it should adapt.

COMMISSIONER BIVINS: Is there any substitute plant in the Asian diet or on the menu of Asian leafy vegetables that they could substitute for water spinach? That is probably going beyond your knowledge of Asians.

MR. CHILTON: No. I don't think so. It is pretty deeply — it seems to be pretty deeply ingrained in the culture. It is like head lettuce is here. And a good example, I was at a meeting in Arizona, and I had a taxicab driver that was Vietnamese and I mentioned water spinach. He didn't know what I was talking about. But when I said rau muong, he said oh, rau muong, and he got fired up about it.

Similarly, at the Vietnamese Chamber of Commerce meeting, there were 200 people there chanting about it. Rau muong, rau muong, we love rau muong. And it is really pretty deeply ingrained in their culture now.

COMMISSIONER FRIEDKIN: Commissioner Duggins.

COMMISSIONER DUGGINS: I remain opposed to this. I think I didn't bring all of the materials I want to share, including the fact that our own Department in the lobby of the building has an article or a pamphlet on invasive species, and water spinach is one that it says you should not possess it in this state.

Florida website has statements that are at variance with what Earl has told us today. They say it is not easily controlled by herbicides. That it is a high risk. That Central Florida and South Florida are at high risk. I think this is an unwise move. I think it is contrary to the directive that we got from the Sunset Commission at the meetings in December where we were advised that we should pay great attention to and do everything in our power to try to address invasives.

I think it sets the wrong example for us to begin to play oddsmaker on whether this will escape, particularly that now we are proposing to make it easier for people to possess it. And I think it is foolish to think that people won't try to grow it on their own, once it is easier to possess it.

And there are — other websites in Texas, including the Galveston Bay invasives organization that have a different risk assessment for this plant. And so I think it is unwise and inappropriate for us to adopt this proposal.

COMMISSIONER FRIEDKIN: Any other comments?

(No response.)

COMMISSIONER FRIEDKIN: Okay. You know, I think if I understand this correctly, we really have three choices. One is to go with the status quo, which is basically an uncontrolled exotic. The other is to control it in some method, which is what has been proposed by staff, recommended by staff. Third is to establish some type of policy that prohibits cultivation of the exotic.

And obviously, it has a pretty wide-reaching impact on a lot of people. I would suggest that we remove this, if we can, from the agenda for tomorrow's meeting as an action item, and get the benefit of public input, which hopefully, we will have that today. And also get the benefit of a little bit more research, particularly with some of the other states, and the benefit of the research that Commissioner Duggins has put together. And list it, if we can, as an action item on the subsequent meeting. Is that procedurally, are we okay with that, Ann?

MS. BRIGHT: (No audible response.)

COMMISSIONER FRIEDKIN: Okay. So any comments by the Commission on that?

COMMISSIONER HOLT: I am fine with it.

COMMISSIONER MARTIN: I like that idea.

COMMISSIONER HOLT: I think we need to hear from people today and tomorrow, whenever. Get the benefit of that side of it, too. And we will see if people show up this afternoon, or tomorrow.

COMMISSIONER FALCON: I think that is a good idea. I also, like Ralph shared, there is some very serious concerns I think, that need to be looked at in greater detail. Because we are looking at the devastation of several species in our state right now.

And the last thing that we need is to add another one to that, and then find out 10 years from now, that things have changed. And now we have got a huge problem. And in looking at the recommendations, they are quite — it is difficult for law enforcement to follow the way that they are written up right now.

There is also an issue of who pays for this proposed new 57.136 would require a permittee to be financially responsible for the cost. But how do you figure out who did what, and where did it come from. And is everybody going to have to be bonded, et cetera. And eventually, the taxpayer is going to be the one responsible for cleaning up anything that is left there. So I agree with you, that there still needs to be an enormous amount of work, before we look at this.

COMMISSIONER FRIEDKIN: You know, that is a very good point. And I would also say that I share that concern as well, and I think that most of the Commission does, that we — our mandate and our mission, part of our mission is to make sure that we are very careful with exotic species. And we certainly heard that loud and clear from the Legislature. So I want to be very cautious about proceeding with anything that condones the cultivation of an exotic. So I agree with that.

MS. BRIGHT: Can I ask a procedural question?

COMMISSIONER FRIEDKIN: You are asking me a procedural question?

COMMISSIONER HOLT: We are in trouble, man.


(Simultaneous discussion.)

MS. BRIGHT: For the record, I am Ann Bright, General Counsel. And I guess it is some clarification on how you want to proceed. Are you still wanting to hear from people tomorrow, or are you wanting to just pull the whole item from tomorrow's agenda and just get additional comment between now and the November meeting?

COMMISSIONER FRIEDKIN: Well, can we hear from people tomorrow and still put it —

MS. BRIGHT: Still just — absolutely.


COMMISSIONER HOLT: I think we should. People may come, you know. And I don't want them coming and then all of a sudden, they can't have their say.

COMMISSIONER FRIEDKIN: And they likely will come today as well.

COMMISSIONER HOLT: And I know they may come this afternoon also. But I want to make sure that they — because it is on the agenda. And it has of course, been on our website. And so we may have people. And I don't want to send them away without them getting to speak to it.

MS. BRIGHT: So we will just —

COMMISSIONER HOLT: And then we can table, after that. Isn't that correct?


MS. BRIGHT: Okay. Great. We will leave this on the agenda for tomorrow's meeting.


COMMISSIONER FRIEDKIN: We will leave it on the agenda to vote. Sorry, Ann. It is on the agenda.

MS. BRIGHT: You have that option. I mean, you have that option tomorrow. You can vote, or not vote. You know, it is still listed as an action item.


MS. BRIGHT: I think you could just probably clarify that you are not planning on taking action, but you do want to hear from the public.


COMMISSIONER DUGGINS: And we have the option of voting it down as well.

COMMISSIONER HOLT: Earl, you stirred up something there.

MR. CHILTON: I should mention also, that for anybody that wants to, I can get you the name of my contacts in Florida. Because it has been suggested there is some discrepancy between what I said and the Florida website.

For some of the states, there is often a discrepancy between what is actually going on and what is on their website; Louisiana, for instance. I had to actually tell them that some of the plants on their website were native.

(Simultaneous discussion.)

MR. CHILTON: So anybody that wants to, I will — I can get you that contact.


MR. CHILTON: Thank you.

COMMISSIONER HOLT: Yes. We may get together someday, all of us.

COMMISSIONER FRIEDKIN: Thank you very much, Earl. We appreciate it. All right. So, no further questions or discussion, I will place this item on the Thursday Commission meeting agenda for public comment and action, staying there.

Committee Item Number 6. Crop Depredation, recommended adoption of proposed changes. Mitch Lockwood. Here we go, Mitch.

MR. LOCKWOOD: Good morning, Mr. Chairman, Commissioners. For the record, my name is Mitch Lockwood. And I am the White-tailed Deer Program leader. You may recall from the May Commission meeting that Director Smith notified the Commission of the need to publish proposed rules required or necessitated by legislation. House Bill 1965 amended the Parks and Wildlife Code concerning the permits to control protected wildlife, commonly referred to as the depredation permit.

The amendments are intended to provide a more streamlined, efficient, timely process for controlling wildlife causing serious damage to commercial agricultural, aquacultural and horticultural interests, or that it is a threat to public safety. Prior to the session, and because of the numerous issues associated with depredation permits, the Department formed a Crop Depredation Working Group, which is comprised of producers, Texas Farm Bureau representatives, as well as state and private wildlife biologists. And this group provided numerous recommendations which were compiled by our staff.

And we have provided or distributed these recommendations upon request to members of the public as well as members of the Texas Legislature. Ultimately, House Bill 1965 was filed, and it contained many of the recommendations of this working group. As you know, this proposal is lengthy, but in the spirit of brevity, I plan to address only those issues which were identified as most controversial during our meetings with stakeholders.

Most of it boils down to concerns for permit abuse and enforcement. If at any point during this presentation, if you have questions on some of the proposed rules that I am presenting, or any other rules that I have skipped over that are in this proposal, we can discuss those at any time.

House Bill 1965 authorizes this Commission to adopt rules necessary to implement the provisions of Parks and Wildlife Code Chapter 43, Subchapter H, which again is the code concerning permits to control protected wildlife. Those who qualify for this permit include those who experience serious damage to commercial agricultural, aquacultural or horticultural interests, or those who recognize a threat to public safety. The period of validity has generated quite a bit of discussion with the White-tailed Deer Advisory Committee, the Crop Depredation Working Group.

Shortly after the enactment of House Bill 1965, we created some provisional permit stipulations. One of which is that this permit expires on October 2nd, which is the day before archery season opens. And the reason for this was to try and prevent any potential conflict between permittees and the hunters next door. However, we realize that this permit stipulation does not address the depredation problems experienced by those farmers of the cool season crops.

One of the — probably the most common concern amongst stakeholders is this potential abuse of this permit, as well as the expected difficulty for law enforcement, especially during an open season. For example, if one is allowed to use this permit during an open season, and he sees a trophy buck out in the field one night, might there be some temptation for him to go out and harvest that buck that night, and then bring him back to the house, and put a license tag on that deer, so then he could retain possession of that animal.

We received several different ideas. Lots of suggestions on how to minimize these risks during these stakeholder meetings. But in the end, we received consensus on the proposed rules. Staff and most stakeholders agree that cool season crops should be protected as well, but that the permits should not be valid during any time before a crop has been planted, or after that crop has been harvested.

Now, I should state that we do expect Representative Darby or one of his representatives to address this Commission tomorrow, requesting that this permit cover a period of 12 months. Still to where it wouldn't be valid for use if there is not a crop actively growing. But the idea here, is that a permittee would only have to pay one permit fee for one tract of land on an annual basis, regardless of how many crops may be grown during that 12-month period.

It is my understanding that these proposed rules would allow us the discretion to issue a permit for 12 months, or for an extended period, or for multiple crops. The stakeholders and staff also agree that a permit issued for public safety should not be confined to a specific season.

And what we are talking about here, for the most part I believe, is public airports, many of which already have a high fence around the runway. But occasionally, a deer finds its way in. And staff believe that public airports should have the ability to remove this nuisance animal immediately.

In another attempt to address this concern for permit abuse and difficulty of enforcement, we heard lots of ideas, such as how about allow for the harvest of antlerless deer only. Or perhaps at least, antlerless deer only during an open season. Or maybe allow for shooting activity during daylight hours only, during an open season.

There are a number of ideas, and both staff and the stakeholders realize that many of these suggestions in one way or another kind of defeat the purpose of this program, and possibly the intent of the legislation, if we are to create rules to make it so difficult to operate legally under. In other words, the reason we have a late spike and antlerless deer season, as opposed to just a late antlerless deer season is because we know that hunters out there in a comfortable blind, and high-powered scopes with good daylight do harvest spikes inadvertently when they are targeting antlerless deer.

So we know these kinds of mistakes can happen. Probably more likely to occur during nighttime activity. And so we sure don't want to create that kind of a roadblock, I don't think. Another idea is, if we are to limit to specific times, like daylight only, or out of season only, then it is not addressing the needs of the farmers who are experiencing these depredation problems in many cases, when the deer are actually causing the damage. And finally, the White-tailed Deer Advisory Committee members suggested that antlers from any buck harvested should be mutilated, whether it is open season or not. Just any time of year, that this permit is used, and bucks are killed under the authority of this permit, they must cut their antlers in half at their proximate midpoint. Staff agree that this would remove any incentive or temptation to go out and target quality bucks at nighttime, and then bring them back and put a license tag on them. In fact, it should remove any temptation to target a big buck during any time of the year.

Since House Bill 1965 states that neither the permittee nor others named on that permit may keep any part of a deer that is harvested under the authority of that permit, it may seem that that alone prevents or removes some temptation for permit abuse. However, the bill also states that a carcass may be given to any appropriate recipient.

And so we propose to define appropriate recipient as a person or public or private organization that utilizes the donated wildlife for the public good and not for pecuniary gain. And we believe that this proposal here, this recommendation is consistent with the suggestions and the recommendations received from our stakeholders as well.

We propose that those who operate under the authority of this permit notify the Department not more than 24 hours, nor less than four hours prior to any authorized activity. Now this is referring to scheduled harvest events, planned harvest where the farmer contacts the shooters on the permit and says, okay. Show up Friday night. We are going to go out. We are going to try to address this depredation problem that we have.

But we also recognize that there are times when notifying the Department prior to any harvest event would be a hindrance. For example, there are times when large groups of deer are seen in the field at nighttime, during a nighttime when a harvest event was not planned. And in those cases, we propose that the permittee notify the Department not more than two hours following any unscheduled killing.

Now David Sinclair looked at some of the statistics yesterday on the permits that we have issued this summer, basically since 1965 was passed. And we have had 44 calls of notification so far, to our Law Enforcement Communications Center, 19 of which were these unplanned killings, the calls after the fact, within two hours following the harvest. Because we already have this as a permit stipulation in this interim period. So that could provide some insight perhaps as to the occurrence of or the recognition that there are many times when harvest wasn't planned, and then all of a sudden, they recognize there is a need that they have an opportunity to go address their problem at a given time.

House Bill 1965 requires that the Department charge a fee of at least $50. Considering the philosophy that this Commission endorsed with other deer permits, and that is, to recover any costs associated with administering and enforcing the program. Staff proposes a fee of $500. I think it is important to note that even with all of the potential controversy associated with this permit, the deliberations of the Crop Depredation Working Group and the White-tailed Deer Advisory Committee went very well. And we appreciate the input and assistance that each of those partners provided.

However, our staff's proposed $500 fee for this permit was not finally established until late in this process, and we have become aware of some opposition from members of our Crop Depredation Working Group; specifically, producers. At least a couple of them think that it will reduce participation in this program. And over the last few days, we have received quite a bit of comment, phone calls from people operating under this permit, with some different ideas, ideas such as a reduced fee. Maybe, one phrase is maybe we could meet in the middle.

I have heard a figure of $250. I have heard a suggestion of $100. But the idea is, if they could start with a fee of less than $500 at this time, until the Department obtains some data on how much time we actually do spend administering and enforcing this program, and then propose a fee based on those data at that time.

One thing I should make real clear is, this estimate right here is — we didn't have the luxury of like we did, with say the deer breeder permits or the Triple T permits where we had years of data. We would go and look at the codes that we would charge our time to, and we know how much time we are putting into those permits. And so it was much easier to defend. In this case, we don't have those data yet. And so at least, not operating under these procedures since 1965.

And so what these are, are estimates on what each staff member that is involved in this believes that we will spend on each permit, from administrative staff, to wildlife biologists, to law enforcement. So again, the most common suggestion we have received in the last few days is maybe before we go to $500, you get a year or two of data, so that you have those data to justify this proposal.

Nearing the end, I will mention a couple of the prohibited acts that are in this proposal. These are further attempts to minimize abuse of this permit. First we propose that it is an offense to offer or accept money or anything of value in exchange for participation in activities under a depredations permit, except for employees. In other words, except for someone who works for the farm, and part of their job duties is to kill deer as authorized by this permit.

And again, we propose to require that antlers be destroyed immediately, by cutting the beams in half as described in this proposal. We have received 30 comments. This slide shows 28. We received a couple of more yesterday on this item. It is still a 50:50 split, with those two additional comments.

Among those reasons cited for opposition is that the public should be given the opportunity to harvest depredating wildlife. I think this is an idea of maybe another opportunity out there to provide some more hunting opportunity. But I think we should be very clear not to confuse this activity with hunting. And our White-tailed Deer Advisory Committee, members of that committee wanted to be real clear to make that point as well. We also heard that these rules are too complicated, there is too much paperwork involved.

We also heard that the Department should ensure that wildlife populations are not adversely impacted. We certainly do not disagree with that comment. In the case of white-tailed deer, we truly don't have any resource concerns under these rules, as proposed. And the same is true for the case of our desert big game species as well, with mule deer and pronghorned sheep and even bighorned sheep, I mean, pronghorned antelope, and even bighorned sheep if we were to ever issue a permit in that case.

You don't see reference, much reference to those desert big game species in those proposals, because the statute in itself is pretty clear, that there is some more sideboards, if you will, when it comes to issuing this permit for those species that are more vulnerable. We did hear a comment about the methods and means. As proposed in here, it shows that it proposes that center fire rifle is the only means which can be used to kill some of these big game species.

And we have received a comment that we should consider shotguns with slugs in some cases. We do understand that there could be some extenuating circumstances, when the use of a shotgun could be beneficial and acceptable. And the Commission could decide to amend this rule to state that means and methods could be described in permit stipulation. For the record, I just want to be clear that we do intend, and that by far, most cases to limit the use or the means to center fire rifle, as it is the most efficient means for achieving their goals under this permit.

One last comment I would like to make under public comment, is that just last night, I received a letter from Texas and Southwestern Cattle Raisers Association. It was addressed to you, Chairman. And I don't know if you have seen it yet. But they do support this proposal. But they do urge the Department to monitor and enforce this program closely.

And again, they specifically referenced some concerns for the desert big game species. That concludes my presentation. I will be glad to answer any questions that you might have.

COMMISSIONER FRIEDKIN: Anyone want to question? Commissioner Bivins?

COMMISSIONER BIVINS: Do you have any idea of how many man hours this is going to eventually consume within the Department?

MR. LOCKWOOD: I have an idea of how many man-hours we predict it to consume, per permit, which is how we established this fee. And I'll just flip to that page right now. We are expecting — if you don't mind, I will just give it to you in an itemized format. But we are expecting 30 minutes of our district leaders' time for each permit application.

We are expecting — let's see here, from a law enforcement standpoint, we are expecting 30 minutes on each call. But we are also expecting approximately three visits out to the site by law enforcement per permit, based on an estimate of 12 calls of notification per permit. So about 25 percent of the calls, they plan on going out there that night and checking the activities. And so there is, there is an average of two hours per visit. And so you are looking at six hours of law enforcement visits at that point.

Our wildlife biologists have for the most point, we are looking at about a four-hour site inspection, per permit. And in some cases, especially in the case of the desert big game species where we must provide recommendations that a permittee must follow prior to receiving this permit, we would then have more time invested into it. We are estimating about 12 hours of time from wildlife biologist field staff. I am kind of going through this, item by item. And I think I pretty well have it covered.

From an administrative staff standpoint, we were estimating approximately one hour of time per permit. I believe I have it there. The total estimate, when we calculate the salary for each one of these staff members, we came up with a figure of $485. Simply, anticipated hours per permit, times their salary was $485 and we rounded up to $500 for this proposal.

COMMISSIONER FRIEDKIN: Why don't we just code it and watch it and see what it turns out to be exactly, right. Obviously, like any other program. Can you go through those again, the slides. Just start at the beginning and I will stop you. I am sorry. I don't have a page reference, but just a couple of questions.

MR. LOCKWOOD: Yes, sir. You bet.

COMMISSIONER FRIEDKIN: Maybe a little slower. Sorry. Get to destruction in a minute. A little more.

MR. LOCKWOOD: That is the first slide.

COMMISSIONER FRIEDKIN: Did you just go through all of them?

MR. LOCKWOOD: Yes, sir.

COMMISSIONER FRIEDKIN: Notification. Do you have a notification slide? I didn't see it.

MR. LOCKWOOD: Notification is, yes. I raced through that one.

COMMISSIONER FRIEDKIN: Do we, Mitch, do we have a system where we could — where somebody — I am a little concerned about someone calling in two hours later in terms of potential abuse. Do we have a system where somebody can call an automated — you know, I don't know the extent of our automated system, but where someone could call in and leave a message, or get a number from the system. You know, an authorization number. And then they write that down. And that is their authority to go ahead and conduct those activities.

So if they see a deer at 2:00 in the morning and they need to take care of the situation, they would have that number. Some way to get people on record as calling into the Department and indicating that they are activating, you know, their permit. Are we able to do that, or not?

MR. LOCKWOOD: Well, we have — the number they call is a 24-hour line that is manned.


MR. LOCKWOOD: Yes. And I invite David Sinclair to push me out of the way anytime he hears something wrong.

COMMISSIONER FRIEDKIN: Okay. So one thing we could consider is, you know, of course, this was the recommendation of the White-tailed Deer Advisory Committee, the second point, wasn't it?

MR. LOCKWOOD: This is currently a permit stipulation, that was supported.


MR. LOCKWOOD: Well, I should stop and not get too far with that one. This is an item that actually we did not spend much time talking about with the White-tailed Deer Advisory Committee. This is something that was mentioned as kind of like we are doing here, is I went through some slides during the first time.

And then we went through a second run and discussed it, each at length. And during the first pass, I mentioned this question on whether or not we should allow any unplanned killing of wildlife. But to be quite honest, we get so wrapped up in many of these other items, we did not revisit that. So it would not be fair for me to say that this has been endorsed by the White-tailed Deer Advisory Committee.

COMMISSIONER HOLT: But this is the way it is right now.

MR. LOCKWOOD: Yes, sir. Under stipulation.

COMMISSIONER HOLT: And it has worked this way.

MR. LOCKWOOD: Yes, sir.

COMMISSIONER FRIEDKIN: On this point? Please.

COMMISSIONER MORIAN: My question, just for my edification is, under 65.221 you separate out mule deer, pronghorn and desert bighorned. And then you come along with this. If I get a permit for one of those three species, can I call in two hours — does this apply to that permit for those three species?

MR. LOCKWOOD: My understanding is that this would apply for any wildlife that you have a permit to control.

COMMISSIONER MORIAN: Any of them. Well, that was — when I read through this, that made me a little uncomfortable, that that would apply to those three, which are more sensitive. It is an opportunity that — I can see when in white-tailed deer that you have got to take advantage of the opportunity. But it seems like that — I don't know; it's troublesome.

MR. LOCKWOOD: You make a good point, I think. And many share your concern. And that is the reason why in the beginning of this process, we have more sideboards if you will, on this, when it comes to those species. I really would be surprised if we issued many permits that designate big game at all.

For example, for desert big game species, we require, the statute requires that we continue with the process under the old statute that says that we must provide recommendations to an applicant which he must heed, prior to receiving this permit. And I will tell you that it is our intention that one of those recommendations is most likely to include a high fence for mule deer to keep deer out, and a net wire fence for pronghorned antelope.

COMMISSIONER MORIAN: But could you just amend it to say under the second bullet point, that that excludes any permits granted under 65.221(g)? Or is that —

COMMISSIONER FRIEDKIN: And potentially, the first bullet point could apply to those other species.


COMMISSIONER FRIEDKIN: Or some modification of that. Where 24-hour notice is required.

COMMISSIONER MORIAN: Yes. If I am going to go out under that permit, and shoot a mule deer or a pronghorned antelope or a bighorned sheep, the first bullet point would apply. You have got to call and tell them. I just don't see that as being so optimistic.

MR. LOCKWOOD: One thing I think is worth mentioning, I look to Ann as I make this comment. I think one reason why notification is included in these rules, is because the statute specifically references notification as one of the items that the Commission has authority to make rules on. But I would suspect that this could be one case where this rule could state that a permittee would be required to notify the Department as described in a permit stipulation as well. And then it could be more specific on a case-by-case basis.

COMMISSIONER FRIEDKIN: On the actual permit?

MR. LOCKWOOD: I am looking to Ann for a head shake or a nod.

COMMISSIONER MORIAN: That is my only comment on it.

COMMISSIONER HOLT: Well also, bighorned sheep are not going to be involved in this. They are not ever going to get a permit to do that. It is not going to happen.

MR. LOCKWOOD: Well, 1965 references them, but I do not see it happening.

COMMISSIONER HOLT: Yes. We have never done one, have we?

MR. LOCKWOOD: No, sir.

COMMISSIONER HOLT: To my knowledge. Okay.


MS. BRIGHT: I am Ann Bright, General Counsel. And we could either make the change that Commissioner Morian wants, which would be actually a very simple change to do. As Mitch mentioned, there are already more restrictions for the desert species. So we are going to be very much more involved in those permits, in terms of inspections and that sort of thing. So that would be an easy fix. Alternatively, we could also, if you like, put something about notification, you know, as set out in the permit.

COMMISSIONER MORIAN: Either way would be fine with me. It is just simple to add down there on the bottom, except for permits granted under Section 65.221(g).

COMMISSIONER FRIEDKIN: Right. And then the other point that I am not — and I don't know if we are trying to change this too much, Ann. But the other one that I am not particularly in favor of is, the two hours following an unscheduled killing.

You know, I wonder if we can put language in there that stipulates that a permittee needs to call in and get an authority number, an authorization number, based on the permit that they have and they are granted a number or they are somehow on record indicating to the Department that they intend to take action on the permit. I don't know if that is administratively, you know, too cumbersome, given the existing system, or not. But I just need more input on that.

MR. LOCKWOOD: Are you thinking that when he receives this authorization number, it would be valid for a four-to-24-hour period?

COMMISSIONER FRIEDKIN: I hadn't thought that far about it. But I just think it helps us with the situation of someone potentially abusing it and taking — you know, for example, a considerable buck. And then calling in later, based on the permit. The possibility of abuse I think, is reduced.

MR. SMITH: Mr. Chairman, if I could, I think it might be helpful if we have Law Enforcement come up and explain how the law enforcement dispatch works.


MR. SMITH: And how the notification comes in. And how that is manned and staffed —

COMMISSIONER FRIEDKIN: That would help us. Thank you.

MR. SMITH: We could do that.

MR. SINCLAIR: Mr. Chairman, members, I am Major David Sinclair. The Law Enforcement Communications Center in Austin is the one accepting those calls now, and it is 24/7. So they are receiving those. We could — it would be great if we had to have a call just before they did the shooting, as opposed to two hours after. I actually just went around the state. We did Lege updates.

And that was really this concern about the two hours after and the night hunting during the season were the two main concerns for Game Wardens. But they are going to be okay with whatever we do. But this would certainly be advantageous.




COMMISSIONER FALCON: You know, a couple of concerns that I have regarding all of this. Is first of all, we are dealing with something that is causing serious damage. And I think I would have a problem with somebody calling at two o'clock in the morning, saying that they killed something at one o'clock in the morning, because one particular animal was causing serious damage. So I have a real problem with the call afterwards. I think, my opinion would be, it should be done before. And that there should be a time limit.

Because otherwise, we are going to have the poor game wardens working 24 hours a day during deer season. And you know, we can't ask much more of those poor wardens out in the field. And so unless there is just some kind of an animal that comes out at 3:00 in the morning, and only at 3:00, I don't see why we can't say, look. This has to be limited to sunset to midnight, or some reasonable time that our game wardens know that at that time, there may be people out there trying to protect their crops. But at the same time, be reasonable about it.

Unless there has been comments, otherwise, it has to be done all night long, I just don't see why it has to be all night long. Animals come out to feed at sunset.

COMMISSIONER FRIEDKIN: Especially, if they are comfortable.

MR. LOCKWOOD: From what I hear from farmers, they would tend to agree with you too, since they are in the field all day, and they don't want to be up all night either. I think you make a very good point. And if I might make a suggestion.


MR. LOCKWOOD: One reason with this, not less than four hours, nor more than 24 hours prior to is my understanding is to give law enforcement the ability to make some plans to go out there, and check up on things. And I think that is why, especially why we have the not less than four hours prior to. But what I would like to ask you, Chairman, Commissioner Friedkin and others, is, if Law Enforcement were to agree to this, if we went to only a prior notification but reduced that four-hour window, I heard Major Sinclair a minute ago say, we would prefer they call right before any killing activity.

And I don't know if he meant literally right before, and I would like to visit with him. But if that is the case, would that be something that would be palatable, is that all prior notification, but would allow a call immediately prior to going out in the field, or whether we should maintain a four-hour window.

COMMISSIONER HOLT: Because these are permitted people already. You have already given them the permit.

MR. LOCKWOOD: Yes, sir. Right.

COMMISSIONER HOLT: The wildlife biologist has already visited. All of the things have been done appropriately. I mean, I don't mind considering the fact that they have to call at least as they are pulling the trigger kind of thing, but I want to make sure everybody on the Commission understands, remember the Legislature has legislated this.

So what we are trying to do is to come up with regs that make sense, not only for the constituent who is the farmer, or whoever has depredation going on. But also for ourselves, and for our law enforcement and for everybody else, that this is a workable plan. And I think it is going to take some time to figure out what makes sense. I also want to remind everybody, remember, this has been in place at some level for what did you tell me, since '65, if I remember it. Isn't that correct, Mitch? Help me, '68?

MR. LOCKWOOD: I don't know offhand, Chairman.

COMMISSIONER HOLT: Yes. But so we are kind of upping the ante here. But I think, you know, we are talking about people that are seriously being affected. And we need to support them. I am talking about our constituents that are having depredation. So I just want to make sure that we don't get too complicated.

But it looks to me like, Dan, one of the things you are talking about, Commissioner Friedkin is, could you notify right before? I think we ought to try to discuss that overnight and let's talk about it again tomorrow on that particular issue.

COMMISSIONER FRIEDKIN: I have got it. I certainly don't — I think that is a good suggestion, Mitch. And understand that we obviously don't want this to become too cumbersome, because it is going to be a drain on the Department and the resources that we are already thinly spreading. But Major Sinclair.

MR. SINCLAIR: Mr. Chairman, just for clarification, the call that I was referring to was for the unscheduled. You know, we lack the four hours.

COMMISSIONER HOLT: Yes. That is what we are talking about. Yes.

MR. SINCLAIR: The unscheduled, an immediate call would work much better.

COMMISSIONER FRIEDKIN: Commissioner Duggins.

COMMISSIONER DUGGINS: I join the rest of you, who have commented about the second bullet point. I think it defeats the purpose of the notice provision. And I don't think it is unreasonable or burdensome on a permittee to give a call four hours prior to attempting to take deer on a permit. Although I could live with two hours as well.

But I do think that second bullet point completely defeats the purpose of the notice provision, which is to enable a warden to monitor that activity. Because I have said before, I think this is going to create a great deal of abuse, particularly with winter crops, people contending that wheat fields are commercial because they have got some cattle on there. And then trying to figure out how to game the system.

And if we have after the fact reporting, only if they kill, a warden has no opportunity to check that. So I would like to see us delete that. I have a number of other comments to the proposed language, but I don't know whether you want them today or tomorrow. It is up to you. COMMISSIONER FRIEDKIN: Well, I think that it would be helpful to get it all out. I think just, so on notification, we are going to look at that.

MR. LOCKWOOD: Yes, sir. I think you all make very good points. And I would be prepared to present this tomorrow without that second bullet included. We have already found out that that won't cause a problem as far as being able to adopt still, if we remove that bullet. And again, this is not something that the White-tailed Deer Advisory Committee even discussed much at all.

COMMISSIONER FRIEDKIN: And given our system, we would also be able to reduce the four hour to —

MR. LOCKWOOD: Well, it sounds like we could, listening to Major Sinclair, just now. That may not be desirable. And that is — my point with you, I think, my main question was, if Law Enforcement and Wildlife came up with a time, whether it be one hour, two hours, three hours, four hours, if the Commission, if that satisfied your request.


MR. SMITH: So I just want to make sure we are clear on this.


MR. SMITH: On this, we are going to excise that second bullet, when we come forward tomorrow, so that is not going to be part of the proposal. And then on the first one, we will reflect a little bit more about how much advance notice is required to give the Communication Center. And then we will come back and talk about that.

COMMISSIONER FRIEDKIN: Agreed. And I am all for efficiency and simplicity. But I think we also need to indicate more than 24 hours, less than four hours prior, or whatever that ends up being, a hour, or whatever it is, to any authorized activity. And then the term, the period that essentially that notification is valid for, I think we need to define that.

MR. LOCKWOOD: Yes, sir.

COMMISSIONER FRIEDKIN: But I share Chairman Holt's concern that we don't want to try to make something that is already fairly complex more complex. We want to make it more efficient when possible. Commissioner Duggins, other comments, please.

COMMISSIONER DUGGINS: Well, if you will turn to page 190 in the book, or 189 rather, where we actually start with the proposed language. I think the definition of commercial interest is overbroad. And by the way, I have shared all these comments with Clayton last week. And so this is no surprise to Mitch and Clayton.

I think it is overbroad because I question — well, as written, it would appear to me that someone could plant a 10-acre wheat field and graze some cattle on there, and that would constitute a commercial interest, as it is currently written. So I ask that we consider at least as to a winter or cool season plant, whether we should have some minimum acreage there. I don't — I am not insisting on it. I am just asking that we think about should there be some minimum acreage so that it is truly a commercial operation and not just being used as an attractor for game. Something to think about.

And Item 2(b), in addition to the items that can be required, such as sales receipts, I believe that we should require a permittee to provide an income statement, which they are going to have to have anyway if it is a commercial operation to prepare a tax return. But if we ask for that, we should be able to see their income statement for that particular aspect of the operation.

COMMISSIONER FRIEDKIN: Just to establish the commercial viability?

COMMISSIONER DUGGINS: To establish that it is a legitimate commercial operation.

COMMISSIONER HOLT: I can tell you that would create a major issue in the legislators' minds. That is not what we do, okay, at Texas Parks and Wildlife. So I am not trying to get into a disagreement or argument with you, Commissioner Duggins. But you know, you sit there and ask somebody for an income statement because they are trying to protect their crops. That is a little heavy handed in my opinion. I would not. I would have to disagree on that one. Sorry. So I am just going to bring it up right away, so that we don't keep moving on some of this stuff. COMMISSIONER DUGGINS: Well, it says that we may require sales receipts.

COMMISSIONER HOLT: Yes. Ask them for sales receipts, tax receipts or other things. So the documentation in there, is already in my opinion appropriate.

COMMISSIONER FRIEDKIN: And the Department is going through a process to vet the permittees prior to issuing the permit.

COMMISSIONER DUGGINS: Well, in my view, as written then, the definition should be broad enough to require a permittee to produce an income statement if asked. Because that is the way this is worded. It says that we may require additional information. And it doesn't define or limit additional information.

COMMISSIONER HOLT: That is right. Leave it.

COMMISSIONER DUGGINS: So all I am pointing out is, if we suspect that it is not a legitimate commercial operation, my interpretation of that language is that it would permit us to ask for an income statement.

COMMISSIONER HOLT: Well, that is why I like the way this is written. It says, or other documentation. Okay. Acceptable to the Department indicating that agricultural, horticultural, et cetera, are being raised on the property. So and that is going to be all part of getting the permit to begin with. Not after the fact, but before the fact. That is the way I understood it.

MR. LOCKWOOD: That is correct, Chairman. And actually, if we thought it was necessary, as you said, this does allow us authority to request an income statement as well as the rule that is written now.

COMMISSIONER DUGGINS: That is all I wanted to hear. So that it is there, if somebody — if we don't, we want to question that, we can see it. Item 4(b) on the next page, I would delete "recent," because I don't know what is meant by recent. Is that two years old? I suggest we just leave it current photographs or video.

Get down to 65.221(b), we say that the permit can be used irrespective of open seasons. I suggest we give thought to whether a permit should be usable during hunting seasons. I know that has been discussed at the White-tailed Deer Advisory Committee. But I am just suggesting to the rest of my colleagues here, that we think about whether it should be allowed where you have got, as an example, Mitch, you said that number one concern was potential abuse. You have somebody out in the stand hunting. It becomes dark and they can't shoot. But then they turn on the spotlight and kill a giant buck. Then you have issues over notice. Unless somebody is actually there and sees that happen, there is no way you are going to prove that that was a violation of the law. And they can just say, I killed it before it got dark. But they actually used this permit.

So I just ask people to think about whether we should allow it during rifle season. Because this all started out, I attended the initial meeting with you in Lowake. This concept started out because there were cotton farmers in the San Angelo area complaining about damage to cotton crops. And then it later expanded into wheat. And remember, we talked about that meeting, and I for one said, I think this is going to lead to situations where people plant cool season crops as attractants and then use these permits as a way to game the system. So I just suggest to you that we think about it. It may be we live with it, just as it is.

COMMISSIONER HOLT: Yes. The only thing — sorry to interrupt there. Also, my understanding is okay, I shoot that big buck, but I have got to cut the horns. And I have got to give away the carcass. So what do I gain, if I am trying to abuse the system. I am trying to understand that.

MR. LOCKWOOD: Assuming that they operate —

COMMISSIONER HOLT: I kill a buck in the middle of the night, but I don't get to keep it.

MR. LOCKWOOD: Assuming that they operate legally under the authority of this permit, and we believe that the rules as proposed do remove that incentive or temptation for abuse, assuming that they are operating legally under the permit.

COMMISSIONER HOLT: And that is what, I think maybe, I want to back up. One, because I want to assume that these people are not lawbreakers. They have asked for a permit. We have gone out there with law enforcement and biologists. Is that correct? The way I understand it, and then they receive the permit, after they have proven to us that they run a commercial operation that has depredation. Am I understanding this correctly?

MR. LOCKWOOD: You are. But I should for the record, clarify one thing. Prior to permit issuance for white-tailed deer, there are — we can certainly issue a permit before the wildlife biologist goes out there to verify that damage has occurred. Because as it is written in the rule, we are requiring that attestation from the applicant that there is serious damage. And so he is signing a government document at that point.


MR. LOCKWOOD: But it is our policy to follow that. If we are not able to go out immediately to inspect, it is our policy to follow up within two weeks. And if we see some red flags, if we are concerned at that time, House Bill 1965 gives us the authority to cancel that permit at any time, if we see that there is not serious damage that has occurred.

COMMISSIONER DUGGINS: But isn't it your — in answer to the Chair's question, you don't envision sending biologists out to visit white-tailed deer applicants in most cases. Isn't that true?

MR. LOCKWOOD: No, sir. But it is partially true.


MR. LOCKWOOD: I don't envision sending the same biologist to visit the same farm year after year after year, where we know that there is a problem. Where we have seen evidence of a problem for years consecutively. But any place we are unfamiliar with, we do expect a site visit during that — at least, the initial. The permit may have been issued already, but within two weeks of then.


COMMISSIONER DUGGINS: Well, I meant prior to issuance of the permit.

MR. LOCKWOOD: No, sir. Not for white-tailed deer. Not necessarily will we go out there prior to issuance.

COMMISSIONER HOLT: But the affidavit has to be signed.

MR. LOCKWOOD: Yes, sir.

COMMISSIONER DUGGINS: Let me ask. I think I mentioned this at the May meeting, that New Mexico has a similar statute that I am told has been a nightmare for the state. Have any of you had an opportunity to check to see anecdotally what they have learned or what regs they may have used out there?

MR. LOCKWOOD: Yes, sir. Actually, there is quite a few states that have a depredation permit, especially in the southeast. And even with this proposal, we tend to be one of the more conservative states on this issue. But New Mexico has a process that is actually quite similar to what we have proposed here, in many respects. They do require notification, for example.

What we — what they have there is similar to our desert big game species plan. In that, when they get a call, the Game and Fish Department has to make recommendations to the landowner to perform some action to try and minimize that depredation problem prior to receiving a permit. Such as, and I asked — I said, you mean, such as a high fence? He said, absolutely.

In that case, they are talking about elk, for the most part. And however, there is a statute that was passed, they call the Jennings amendment, that states that the applicant gets one year. And if he is not satisfied after a year of heeding those recommendations by the Department, then the Department must issue him this permit to kill an unlimited number of deer. Very similar to what we have here.

One of the differences is, is that the landowner must leave the animal lay in the field, but must notify the Department right after the kill, so that they can go and retrieve that carcass if they choose to. That was one of the biggest differences I noted in their process. But from a resource standpoint, they have no concerns. They mentioned two individuals that have killed, he said, dozens of elk under this permit, that is allowed through statute. But they do not have a resource concern.

But he did say very clearly that the hunters are well aware of this, and are quite upset that these two individuals are allowed to kill so many elk, that are no longer available for their hunting. So it is a concern amongst hunters in that state, without a doubt.

COMMISSIONER DUGGINS: So New Mexico allows use of the permit during hunting seasons, and it has upset the hunters, or at least some hunters?

MR. LOCKWOOD: I don't want to say certainly — well, no. He did say for a 12-month period. So yes, it is during a hunting season. But just the fact that they are allowed to kill that many elk and bull elks, I suppose, whether it is hunting season or not, has the hunters upset.

COMMISSIONER DUGGINS: Okay. Well, if I may continue?


COMMISSIONER DUGGINS: Turn it over to page 191, under 65.222(a)(1) where we specify what the applicant must furnish. I think it ought to — it says physical address. I think it ought to be physical residence address. So we know where this person actually resides and doesn't just give us an office address. And (b), I think that ought to say, states under oath. We say, swears to the truth.

But in order to show a violation; Pete you are nodding your head. Do you agree with that? Should it say, states under oath? And I think attestation should be changed to representation. So that you are representing that serious damage is occurring to a commercial et cetera.

COMMISSIONER FRIEDKIN: Are you still in the same section?

COMMISSIONER HOLT: Yes. He is down in (b).

COMMISSIONER FRIEDKIN: Before you leave that area, let me know.

COMMISSIONER DUGGINS: All right. I am ready to leave that area.

COMMISSIONER FRIEDKIN: Okay. One other thing is, we were just discussing is, is there language in here that the shooter has to — the actual shooter has to have a valid hunting license. I think from a safety standpoint, that should —

MR. LOCKWOOD: The shooter does have to have a hunting license. But I need to refer to Major David Sinclair on where that is — which rule covers that specifically. But they must have a hunting license.

COMMISSIONER FRIEDKIN: Okay. So it is in here.

MR. LOCKWOOD: Without a doubt. I don't know that —

COMMISSIONER FRIEDKIN: Not the permittee, but the shooter.

MR. LOCKWOOD: It is not in this proposal, I believe —

MR. SINCLAIR: Mr. Chairman and members. I am Major David Sinclair. The license requirement is actually in Chapter 42 of the Code. The exceptions for the license are listed in there, like for coyotes or feral hogs. So it will apply. There is no exception for the deer depredation. So it is in statute.

COMMISSIONER FRIEDKIN: Perfect. Okay. Thank you. Commissioner Duggins.

COMMISSIONER DUGGINS: Okay. Over on the notice provision at the top of page 192, 65.225. Of course, we have talked about the notice to the Department. I think that a permittee should have to make a reasonable good faith effort to notify surrounding landowners if you are going to use this permit, for a couple of reasons. One is safety.

Two is, and perhaps more importantly, if you have a landowner who doesn't know anything about a permit, or that a permit has been issued, and they see a neighbor spotlighting deer, that is going to prompt, in my opinion a call to the sheriff or to the game warden that is unnecessary. So I don't know that you have to notify the — I am not suggesting you have to notify the neighbor each time you use it. But you certainly ought to have to try to let them know you have a permit and will be using it over the course of the permit, so that it doesn't — as I say, I think it would help out with safety issues. But also, unnecessary calls. I realize that that was discussed. And Mitch, you can respond with —

COMMISSIONER FRIEDKIN: Any other comments on that? You have an issue with that? Chairman Holt? A good faith effort —

COMMISSIONER HOLT: Well, I assume you have got all kinds of law enforcement issues on that. But Mitch, did you have a discussion in the advisory group, or at any level?

MR. LOCKWOOD: Yes, sir. It was discussed quite a bit. I don't believe we discussed it much in Lowake with the Crop Depredation Working Group, but the White-tailed Deer Advisory Committee certainly did discuss this item, as well as some other items that Commissioner Duggins presented. On this item, there really wasn't much support from the Advisory Committee on notification of neighbors. There was some concern on how that process would work. How one who leases the land for the farming activity is going to know all the neighbors, for example. And I am just providing some different examples to you that were discussed.

COMMISSIONER HOLT: No. That is what I am asking.

MR. LOCKWOOD: And then staff had some questions on how it would work administratively on our end, if the permitting shop needs to confirm that all neighbors have been notified, or if it is just an attestation again, a signature. We are just not real sure on how it would work from an administrative standpoint. But the advisory committee didn't address that as much as just, they didn't see much need.

Because the main comment was, if it is not going to result in a change of action. If my notifying my neighbor is not going to somehow result in me no longer getting to use this permit, then what good is it, anyway, is one of the comments we heard. I think the main thing, the point before we — and I am sure there will be some more discussion on this.

But I don't want to forget to mention this. If we do decide to make that, if the Commission decides to make that requirement, that is something that would have to go back and be published again in the Texas Register for public comment.

COMMISSIONER DUGGINS: I think that it is — one good result that could come from this is, that it could facilitate discussions among landowners. That was one thing that we did talk about. Is where the landowners don't know each other well, or don't get along, they haven't been willing to share in a high fence. Once an adjoining landowner knows you are about to use this permit, it may lead to some discussions that could avoid the use of the permit in the future.

And I am not suggesting that it be a penal violation. I am just suggesting that the permit state that you agree, just a single civil covenant, you agree to make a reasonable good faith effort to notify surrounding landowners that you are obtaining a permit and will be using it over whatever the term of the permit is. I am not suggesting that we turn it into something Pete has got to pull out his .38 and go after them for.

MR. LOCKWOOD: Actually, I think the White-tailed Deer Advisory Committee did make some comments in support of what you are suggesting, Commissioner. That it is always wise to encourage permittees in situations like this to make such contacts.

COMMISSIONER FRIEDKIN: So could that suggested language be stated in the application? So obviously that way, people are aware of it. But would that constitute a material enough change to require a change in our process. Ann?

MS. BRIGHT: I am Ann Bright, General Counsel. You know, that is one where the safest alternative would probably be to go back to the Texas Register. The way that this rule is structured, it is in several different sections. So the Commission could go forward with everything else, and just have a new section called Notification of Landowners or something to that effect. And I am saying that is the safest thing.

Obviously, there are arguments. The general law is, if it is a logical outgrowth of the current rule, I think there is also concerns in terms of the folks that have previously discussed it, and kind of — sort of where we are going on this, in terms of just our constituents and members of the White-tailed Deer Advisory Committee. I think we would also want to make sure that they knew about it.

COMMISSIONER HOLT: You would do that through an amendment in the Register?

MS. BRIGHT: Probably. On that one, probably.


MS. BRIGHT: I am just saying that is the safest.

COMMISSIONER HOLT: That is all we have to do, is publish it, and just wait what, another, whatever the time period.

MS. BRIGHT: It would be the next Commission meeting.

COMMISSIONER FRIEDKIN: So we wouldn't need an action item tomorrow.

MS. BRIGHT: Because we also, there is a notice and comment requirement for all rules that the Commission makes.


MS. BRIGHT: And there is some law, not a lot, on how much you can change a proposal before it is actually adopted, without going back through the notice and publication process. And basically, if it is a logical outgrowth, it is not going to affect new groups, or address new subjects, then those sorts of things can be done without going back.

COMMISSIONER HOLT: This is a new subject.

COMMISSIONER FRIEDKIN: If you were to say encouraged landowners, at least this go around, landowners are encouraged to — does that still —

MS. BRIGHT: Well, you know, the thing about that one is, there is really — I mean, it doesn't do, frankly — I mean, it is a thing that we could probably do even without a rule. I mean, we can always just encourage —

COMMISSIONER HOLT: Print it on the bottom of the permit.

COMMISSIONER FRIEDKIN: That is what I meant.

MS. BRIGHT: Yes. Suggest that they — strongly suggest that they notify their neighbors.


MS. BRIGHT: There wouldn't be any teeth behind it, really, in the sense that, you know, being able to go out and issue someone a citation because they applied for a permit and didn't notify their neighbors.

COMMISSIONER FRIEDKIN: That might be a difficult enforceability issue, anyway.

COMMISSIONER HOLT: Oh, I think it would be very difficult.

COMMISSIONER DUGGINS: What I am suggesting —

COMMISSIONER HOLT: I don't want to get into this Big Brother thing.

COMMISSIONER DUGGINS: What I am suggesting though, is that if this is — if the consensus is to require that as a covenant or commitment to the permit, that if the next year, we determine that a permittee hasn't done any of that, then that would be an additional ground added to permit denial 65.230. You could use that as a basis to deny the permit.

COMMISSIONER HOLT: Well, then you would have to go —

MS. BRIGHT: I think, if there is going to be a penalty associated with it, I would recommend that we be really careful in terms of going the safest route, in terms of notice and comment on the rule.

COMMISSIONER HOLT: I have got you.

COMMISSIONER FRIEDKIN: Commissioner Morian, did you have a —

COMMISSIONER MORIAN: No. I just agree that it is a good idea to make a reasonable effort to let somebody know what you are doing.

MR. LOCKWOOD: Vice-Chairman, on your comment, as far as would that go on the application, that is something we could certainly do right now, is when we start sending out application packets, it has all the bullets of what it takes to receive this permit, et cetera. We can include a statement in there about, we highly encourage those permittees to notify neighboring landowners.

COMMISSIONER FRIEDKIN: And at least for purposes of this year, you know, it could be an operating procedure for the visiting biologist to communicate that as well.

MR. LOCKWOOD: That is true. One thing I have learned over the years, that a lot of farmers make clear, they want their neighbors to know. Because the farmers want the high fence there. And they want the neighbors to help build that high fence.




COMMISSIONER FRIEDKIN: You know, I am of the view that we need to take action on it tomorrow, and make some headway with this. But if we can — if it is a substantial issue, we will have a way of cleaning it up later, I think. I have got support for that.

COMMISSIONER DUGGINS: Can't we go ahead and take a vote on it as is, and then in November, consider this additional —

COMMISSIONER FRIEDKIN: Yes. As is. I am looking for my nod from Ann. As is, with the changes that are not considered material differences that we have already discussed. Correct? We probably should review that tomorrow.

MS. BRIGHT: Again, I am for the record, Ann Bright, General Counsel. And yes, there are only, there are a couple of changes, I know that we have talked about several. And we really do appreciate Commissioner Duggins communicating those to us in advance. So staff has had an opportunity to really kind of go through those, and try to determine which ones might require going back to the Texas Register.

And the only two that we really identify that we probably, again, the safest alternative would be to go back to the Texas Register would be the minimum acreage, and the notification of neighbors. Most of the other ones, like open season. We have already, there is already something in the rule about how we are going to — the Department is going to determine the period of validity. So that is a change that could be made, or not. And then the other notification provision, actually this one that you all have talked about, those could be made without going back to the Texas Register.

COMMISSIONER FRIEDKIN: Okay. Thank you. So with the addition of the changes that we have suggested, the Commission has suggested today, my recommendation is that we go ahead with it.

COMMISSIONER FALCON: Mr. Chairman, just another couple of concerns, before we — are there any special safety concerns with people shooting at night that need to be addressed?

MR. LOCKWOOD: I would like to defer to Major Sinclair on that question, if I may.

MR. SINCLAIR: I am Major David Sinclair. Commissioner, you know, with the hunting that we have now, we have fur-bearing animal hunting at night. We have got the predator hunting. We have feral hunting. And there is no regulations, other than the hunter ed requirement that we have in place. So there is always that concern. But and generally speaking, the Commission doesn't have authority to adopt regulations related to safety. There are a couple of areas, but generally across the board, you don't have that authority.

COMMISSIONER FALCON: My second question would be, do we have the ability to pull a permit before the end of the term of the permit?

MR. LOCKWOOD: Yes, sir. We do. That is very clear in House Bill 1965. We may cancel the permit at any time for, and I don't have it open to that page right now. But for a number of reasons, including that the permit is not meeting its intended purpose, or whether there was falsification of a document. And it gives us quite a bit of latitude there to cancel a permit at any time.

COMMISSIONER HOLT: I will let you know we fought through all this in the Legislature, too. I mean, we knew this was going to create its own set of issues. And so Carter and lots of other people, as this was going through the legislature, we tried to get, for lack of a better term, as much control of it in our hands, to be able to make decisions. Because we know it is probably going to be an evolving issue over the next few years, until we all figure this out.

MR. LOCKWOOD: I don't want to introduce a brand new idea here, but in all fairness to the White-tailed Deer Advisory Committee and all members, I think I would be remiss if I didn't mention that we did receive one suggestion on this topic, about perhaps the simplest way of notifying neighbors is with signage, such as signs on the gate. That did not result in much discussion to follow, but it was mentioned. And I thought it would be fair for me to mention that to this Commission.

COMMISSIONER FRIEDKIN: Commissioner Duggins.

COMMISSIONER DUGGINS: I have got two other observations. On the top of page 193, where we talk about the log that the permittee has to maintain. Five, we say that the disposition of the wildlife to include the name of the person. I think it ought to say, include with the name, phone and physical residence address, so we can actually follow up if necessary. I did give you that, didn't I, Mitch?

MR. LOCKWOOD: Yes, sir. It is not a surprise.

(Simultaneous discussion.)

COMMISSIONER DUGGINS: And then finally page 194, under 65.232(4), where we talk about, it would be prohibited to offer or accept money or anything of value in connection with activities under the permit, I would expand that a little bit with this phrase, and I think I gave this to you, Mitch, including any fee paid in exchange for hunting, game meat or antlers associated with or resulting from such activities. How do you feel about that? Or you didn't really say. Or Clayton, you didn't really respond, I don't think.

MR. LOCKWOOD: As you say, I think it is really a clarification of our intent.

COMMISSIONER DUGGINS: That is consistent with the intent, isn't it?

MR. LOCKWOOD: I believe it is. And it is certainly something that could be adopted tomorrow without having to go back to the Texas Register.

COMMISSIONER DUGGINS: Thank you for your patience, ladies and gentlemen.


COMMISSIONER DUGGINS: Mr. Chair, thank you.

COMMISSIONER FRIEDKIN: Okay. Any other comments or questions on this?

(No response.)

COMMISSIONER FRIEDKIN: Thank you all very much. Mitch, thank you. Clayton, thank you.

MR. LOCKWOOD: Thank you.

COMMISSIONER FRIEDKIN: So, no further questions or discussions, I will place this item on the Thursday Commission meeting agenda for public comment and action. Committee Item Number 7, Deer Breeder Rules, Possession of Deer from out of State Sources, permission to publish proposed rules in the Texas Register. Kevin and Mitch.


MR. SCHWAUSCH: Good morning, Mr. Chairman and Commissioners. I am not presenting anything on depredation this morning. So we will maybe go through this a little quicker. For the record, my name is Kevin Schwausch. I am the Big Game Program specialist.

And this morning, I will present an item concerning the current prohibition on the importation of white-tailed deer and mule deer into the state, on the continuing basis of concerns about transmissible diseases. Under the Parks and Wildlife Code, the Commission is authorized to regulate the possession of deer held in captivity under a deer breeders permit and the procedures and requirements for the purchase, transfer, sale and shipment of breeder deer.

Current rules do not allow for the importation of white-tailed deer and mule deer into the state. In March of 2009, the United States Department of Agriculture published proposed rules that would create a single federal regulatory standard to replace the various state regulations imposed in response to chronic wasting disease. Although the current breeder rule was promulgated in 2005 in response to concerns over CWD, in the process of evaluating the current proposed USDA rule, we recognize that our current entry prohibition has served as a comprehensive deer management strategy, deer disease management strategy.

And we want to clarify on the record that our current entry prohibition is intended to mitigate numerous disease threats to our Texas deer herds. In publishing this proposal, which may be a simple readoption of a current rule, it will help us demonstrate to others that there are many disease risks for deer and other wildlife, in addition to CWD.

Staff has been concerned about other epidemiological threats, such as exotic blue tongue, epizootic hemorrhagic disease, malignant catarrhal fever, and one that is out in Western California, it is an adenovirus hemorrhagic disease. These are all viruses that affect deer or can be passed from deer to other wildlife, or livestock species. Staff therefore recommends the continued closure of the state to the importation of white-tailed deer and mule deer.

We are proposing this amendment because we believe the rationale for the basis of this rule should not be narrowly focused on CWD, but rather be a more comprehensive analysis of numerous disease threats. The White-tailed Deer Advisory Committee was briefed on this proposal, and they support the current border closure. Therefore, we are seeking permission to publish the rules for public comment concerning amendments to the deer breeder proclamation. And with that, that concludes my presentation. If you have any questions, I will be happy to answer them.

COMMISSIONER FRIEDKIN: Thanks, Kevin. Any questions on that?

COMMISSIONER HOLT: That is straightforward.

COMMISSIONER FRIEDKIN: Okay. That was easy. Thank you very much.

MR. SCHWAUSCH: That was awesome.

COMMISSIONER HOLT: That was easy. Mitch, you took the wrong one.

(Simultaneous discussion.)

COMMISSIONER FRIEDKIN: All right. I will authorize staff to publish this item in the Texas Register for the required public comment period. And Mr. Chairman, I think that concludes our business.

COMMISSIONER HOLT: Okay. Thank you, Chairman Friedkin.

(Whereupon, the meeting was concluded.)


MEETING OF: Texas Parks and Wildlife Commission
Regulations Committee
LOCATION: Fort Worth, Texas
DATE: August 26, 2009

I do hereby certify that the foregoing pages, numbers 1 through 96, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Barbara Wall before the Texas Parks and Wildlife Commission.

(Transcriber) (Date)
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